In the continuing debate over the new federal “blueprint” for university sexual harassment policies, some have argued that broadly defining sexual harassment as “any unwelcome conduct of a sexual nature”—including “verbal conduct”—is unproblematic because the definition is supposedly “only” for campus reporting purposes.
What this argument overlooks is that having your protected expression officially labeled by the government with such a stigmatized, pejorative term is a real harm, whether the speech is formally punished or not. Don’t just take our word for it; the Supreme Court reached the same conclusion in the case of Meese v. Keene, 481 U.S. 465 (1987).
Keene involved a First Amendment challenge to a 1938 federal statute that required certain registration, filing, and disclosure procedures for expressive materials meeting the statutory definition of “political propaganda.” The constitutionality of the actual statutory requirements for registration, etc. was not at issue; the challenge involved the labeling of expression as “political propaganda.”
Barry Keene was an attorney and California State Senator who wanted to show three Canadian films that fit the statutory definition of political propaganda, as they were distributed by the National Film Board of Canada (a foreign agency) and had the aim of influencing U.S. environmental and foreign policy. Keene sought to enjoin the application of the statute to the three films because he was concerned that his reputation would suffer if he were labeled a “disseminator of foreign political propaganda.” 481 U.S. at 467.
In order to challenge the constitutionality of the law, Keene had to demonstrate that he had standing to bring the case to court, meaning that he had to be able to show that the statute threatened to harm him. The Supreme Court found that Keene easily met that standard. Even though the law did not directly prevent him from receiving or exhibiting the films, the potential consequences deterred him from doing so. The Court recognized that if Keene linked himself to expression designated by the federal government as “political propaganda,” it could harm his reputation in a way that would constitute a “cognizable injury.” Id. at 473.
Recalling the Departments of Justice and Education’s May 9 blueprint, one would be hard pressed to argue that labeling a person’s speech “sexual harassment” would be any less injurious to his or her reputation.
According to the Court, it was immaterial that Keene could explain the value of the films to the audience because his message would reach only audience members and be “ineffective among those citizens who shun the film as ‘political propaganda.’” Id. at 476. The same point applies to the blueprint: While reasonable people who hear a particular remark firsthand may understand that it does not give rise to a legitimate claim of sexual harassment, those who simply see a sexual harassment investigation noted on a student’s record do not have that same contextual benefit and are likely to assume the worst about such a serious charge.
Although the Supreme Court ultimately found that Keene’s First Amendment rights were not violated, a close examination of the opinion reveals that the Justices’ conclusion was based on the very factors that distinguish the propaganda law from the blueprint.
One of the foremost points stressed by the Court was that “political propaganda” has two definitions: a commonly understood pejorative definition and a neutral statutory definition, which applies regardless of whether the relevant foreign government is friendly, hostile, or neutral, and which “includes advocacy materials that are completely accurate and merit the closest attention and the highest respect.” Id. at 477. The Court’s reasoning was that since the statutory definition did not condemn political propaganda as a class, labeling expression as such should not necessarily be injurious.
The same argument cannot be made for the label “sexual harassment.” Sexual harassment is inherently negative. There is no such neutral denotation of the term, because there is no morally neutral form of sexual harassment. To say something is harassment is necessarily to say it is bad. Moreover, the blueprint is not just labeling but is explicitly condemning sexual harassment (as, of course, does FIRE, when the term is properly defined under the law). Unlike the statute in Keene, which only imposed administrative requirements when speech fell into a certain category, the blueprint’s definition is explicitly intended to identify, report, investigate, and potentially sanction speech.
The Court also relied on the fact that Congress had adopted its definition of “political propaganda” decades earlier, and the term had not previously been defined differently. In contrast, the blueprint definition of “sexual harassment” is neither established nor filling a void. There already is an established legal definition of peer sexual harassment in the educational setting, set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). The definition provided by the blueprint marks a drastic change from this precedent. It also bears noting that the Court in Keene highlighted the deference typically given to Congress’s power to define the terms of its statutes. But the blueprint definition was not crafted by Congress; it was announced by unelected administrative officials, without even conforming to the procedures required by the Administrative Procedure Act.
It’s important as well to realize that while all eight deciding Justices agreed that Keene had standing (Justice Scalia took no part in the case), three Justices concluded further that Keene’s First Amendment rights had in fact been violated. In a strongly-worded dissent joined by Justices Brennan and Marshall, Justice Blackmun accused the Court of failing to provide the requisite amount of protection for free expression and “ignoring the realities of public reaction.” 481 U.S. at 486. Justice Blackmun’s dissenting opinion raised several interesting points of particular relevance to the problems with the blueprint.
First, he cited Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 (1963), in which the Court found that a Rhode Island law providing for expression to be designated as “morally objectionable” violated the First Amendment. The Court’s decision in Bantam echoes two major points that FIRE has repeatedly made: (1) that offensiveness alone is not justification to burden speech, and (2) that the First Amendment can be violated by less than direct prohibitions on speech.
Second, Justice Blackmun found that “the official designation taints the message of a classified film by lessening its credence with viewers.” Id. at 492. That is, by attaching a negative label to expression, no matter its actual worth, one necessarily devalues that expression and robs it of its full communicative power. This concern carries particular weight in academic settings, where intellectual growth demands challenging expression on its merits, not based on gut reactions.
Finally, in a similar vein, Justice Blackmun expressed concern that the requirements had the effect of putting the speaker “on the defensive”—once the films Keene wanted to show were labeled propaganda, it would be up to him to convince others of their worth and legitimacy. This is even truer in the blueprint’s case, where school officials in fact must launch an investigation into whether the speech should be sanctioned, putting the speaker in the position of needing to defend against potential punishment.
Regardless of whether the broad new definition of sexual harassment provided in the blueprint is to be used as a standard for punishment or reporting, it will necessarily place a heavy burden on a significant amount of constitutionally protected speech. The application of a label with such negative associations carries a chilling effect, as individuals self-censor to avoid serious harm to their reputations. Such a result flies in the face of the First Amendment and demonstrates why overbroad definitions should be avoided at all costs.
Cara Gagliano is a FIRE legal intern.