A recent court ruling shows how anti-discrimination law threatens free speech

When I started FIRE with professor Alan Charles Kors more than two decades ago, I thought we’d be out of business in 10 years. Censorship on college campuses had to be a passing fad. After all, the whole point of higher education is exposure to new, challenging ideas. I couldn’t have been more wrong. 

But I did worry then that illiberal and censorial trends I witnessed on campus could begin to leak out and poison American society. Unfortunately, I was right about that. 

One area I was particularly worried about was anti-discrimination law rolling over our First Amendment rights. Last month, a federal appeals court provided another ruling vindicating my fear. 

We now witness the phenomenon of nude statues being moved from public places into more obscure locations. We witness book bans in public libraries. Police open criminal investigations into school books.

The United States Court of Appeals for the Ninth Circuit ruled in one case that warehouse workers should be allowed to sue their employer for playing music from the rapper Eminem and others over the company’s speakers.

As described in the ruling: 

Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict — let alone evade — the music’s reach. In turn, the music allegedly served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. Although the music was particularly demeaning toward women, who comprised roughly half of the warehouse’s workforce, some male employees also took offense. Despite “almost daily” complaints, S&S management defended the music as motivational and stood by its playing for nearly two years, until litigation loomed.

In its opinion, the Ninth Circuit erroneously claimed that “harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim.”

According to Title VII, it is unlawful for an employer and a labor organization to influence an individual’s employment opportunities by discriminating against him or her based on race, color, religion, sex, or national origin. Playing music containing, according to the court, “sexually graphic, violently misogynistic” lyrics at the workplace is not discriminatory based on sex because the music neither targeted any particular individual nor influenced employment opportunities of the employees in the warehouse.

Whether derogatory music can “pollute a workplace” is entirely subjective — not everyone will share similar musical tastes. An issue could arise if the music was indeed too loud and interfered with the employees’ ability to hear and communicate with one another or if the noise caused hearing damage, but that was not at issue. Furthermore, the court’s ruling focused too much on the music and not nearly enough on the actual, targeted harassment (e.g., male employees pantomiming sexually graphic gestures, yelling obscenities, making sexually explicit remarks, and openly sharing pornographic videos).

Employers do have an obligation to protect employees from harassment that is objectively offensive to a reasonable person and severe or pervasive. However, it is difficult to see how playing music beloved by millions — Eminem, for example, has sold more than 61 million albums — can qualify. 

This is not to say that an employer may not prohibit truly disruptive speech, including obscene gestures or personally directed epithets. However, by saying that the music itself could be harassing, the ruling, and similar rulings, will inevitably create unintended consequences for free speech and expression by restricting individuals’ creative outlets.

The expansion of discrimination standards is the natural and predictable outcome of encouraging generations of college students to take offense, to see themselves as victims, to undervalue resiliency. It was predictable that trends starting on our campuses would seep out into the greater society.

The battle for free speech is eternal, and fighting it is the obligation of each generation. With this decision, the Ninth Circuit makes that fight harder.

We now witness the phenomenon of nude statues being moved from public places into more obscure locations. We witness book bans in public libraries. Police open criminal investigations into school books. Children’s books by the author Ronald Dahl were rewritten to remove language considered offensive by Dahl’s publisher, Puffin: The publisher hired sensitivity readers to rewrite sections and eliminate offensive words such as “fat” and “ugly.” The assumption appears to be that we live in a world inhabited only by svelte, fit, and beautiful people.

It is difficult to predict where all of this will end — and what will be left of the First Amendment and our culture of free expression when the wrecking ball has completed its work. I am prepared to pass the torch to a new generation, but that generation will have to deal with some profound and difficult situations. 

The battle for free speech is eternal, and fighting it is the obligation of each generation. With this decision, the Ninth Circuit makes that fight harder.

Harvey Silverglate is a criminal defense and civil liberties attorney and co-founder of FIRE. He thanks his research assistant, Emily Nayyer, for her assistance in the preparation of this piece.