Silverglate Weighs In on Sexual Harassment Study

January 26, 2006

FIRE cofounder Harvey A. Silverglate recently provided his comments on the AAUW sexual harassment study critiqued yesterday on The Torch and in today’s press release. As always, Harvey’s take is well worth a read. Check it out:

My own view of sexual harassment is that it is, and should be, defined in terms of “time, place or manner” analysis. Thus, to say something insulting to someone else is not, and cannot be, harassment, since it is constitutionally protected speech. But if one repeats the unwanted, unwelcome statement at inappropriate times (for example, during midnight phone calls night after night), or in an inappropriate manner (via a bullhorn outside of the target’s bedroom at midnight), or at an inappropriate place (at the person’s hospital bed), then what otherwise would be protected speech become harassment. My point is that there should be nothing new about the concept of “sexual harassment” or “racial harassment” or any other type of harassment. One can analyze these situations under traditional common law tort principles. Once we deviate from such legal standards, we begin to slide down the slippery slope of outlawing quite ordinary speech that is (and should be) constitutionally protected.

Reports such as the one that FIRE has analyzed here are politicized documents, not legal documents, and surely not sound pedagogical documents.