General Discussion
In reply to the discussion: The Limits of Free Speech [View all]onenote
(42,700 posts)To wit:
A private company can limit its employees' speech until the cows come home. So if one or more employees say things that create a hostile environment for a particular protected class of employees, the company can toss the offending employee, with no first amendment concerns. And if the company doesn't do something to rectify the situation -- the company (not the harassing employees) is the one subject to liability. In short, liability for creating a hostile workplace doesn't punish those engaged in particular speech, it punishes those who could have but don't do anything to prevent or stop that speech.
It gets more complicated where the government is the employer. In that case, the employer has to be cognizant of his or her employees first amendment rights. But at the same time, employees aren't entitled to a job if they can't do their job properly and if getting along with fellow employees is a component of acceptable work performance -- and it usually is -- then even a government employer can terminate an employee who engages in speech that undermines the atmosphere in the office in a way that is not conducive to the office's functioning. And if nothing is done and the target of the offending employee/employees is in a protected class, than a lawsuit for the conduct of not preventing the creation of a hostile workplace can proceed, even against a government employer.
In the academic environment, a similar analysis may hold - at some point the speech of an individual or individuals may cause the academic setting to fail -- discussion and learning is compromised. At that point, the school has the right and ability -- and possibly the obligation -- to do something about it.
Now, as has been mentioned, the idiot frat boys of SAE didn't create a hostile environment when they sang that racist song on a bus. And the fact that someone else made it public raises an interesting set of questions. For example, let's say you're a teaching assistant you're sitting around your dorm room with some friends and you start in talking about how much you hate the Pope and Catholics and make some suggestions as to what sort of nasty things you'd like to see happen to them, and one of your buddies goes on a university run Internet bulletin board and posts a message saying "Get a load of what my buddy John said" and then repeats your words, no one has engaged in discrimination (unless you said something about giving bad grades to anyone you knew was Catholic), but has a hostile educational environment been created? Should you be expelled? Should your buddy who posted it be expelled?