Free to Speak Her Mind

Waxman pressed forward despite Blumner's skepticism and, in 1992, Federal Judge C. Clyde Atkins signed an order protecting the homeless from police harassment. (The case moved to the federal appeals court, where a panel of judges ordered ACLU lawyers to negotiate with the City of Miami's police department in an effort to reach a settlement.)

In 1992 Blumner's zealous support for a Jacksonville shipyard owner accused of harassing a female employee annoyed leaders of the national ACLU office, and they distanced themselves from the Florida chapter by refusing to comment on the case. U.S. News & World Report published an article headlined "The ACLU v. the ACLU" describing the dramatic difference of opinion. Eventually the national leaders filed an appellate brief supporting the view Blumner had advocated.

You have strong opinions about the ACLU's mission and have even challenged the organization's national leaders, the first time concerning the Jacksonville shipyard. What happened there?

Under the Civil Rights Act, a judge had ruled that, because the shipyard was a sexually charged work environment -- primarily due to the proliferation of pinups on the walls -- it was liable for monetary damages to a female welder who worked there. She claimed that the environment was hostile and sexually harassing. It was my view, upon studying the situation and researching the case, that for the government to find liability against a private employer because of the way it chooses to decorate the walls is a violation of the First Amendment. I don't care what's on the wall -- it's up to the employer to decide.

By your analysis, women would not be able to seek protection from the government even if they were continually harassed by their male co-workers.

I think that is a vague, overbroad basis for liability that violated the First Amendment on the face. There are certainly issues of sexual harassment that should be litigated. If an employee is told that as a condition of the job or promotion they must engage in sex, clearly that is sexual harassment. If all that's happening is that an employee is feeling humiliated or uncomfortable on the job because of the boorishness of the boss or co-workers, welcome to the world. No one is guaranteed a workplace where they won't feel humiliated. That's part of competition; that's part of being an adult.

But wouldn't women be discouraged from performing nontraditional jobs such as construction work, welding, or shipbuilding if they were constantly subjected to verbal abuse?

That's part of being a pioneer. For a woman to run to the cover of law to protect herself from anything discomforting or disquieting will only ensure that women will always be separate, will always be outsiders in that work environment. A false dichotomy has been set up between the First Amendment and the Fourteenth Amendment guaranteeing equal protection under the law. I think that fully protecting the First Amendment is the best way to ensure women's equality. Others have argued that we have to limit speech so that certain kinds of messages can't be communicated that may cause inequality for women.

Would you also allow racially insensitive speech in the workplace?

I would say yes. Often it's the derivation of speech that causes problems. I know that black people call other black people the n-word all the time, and they mean it in a congenial way. It's not a problem. But have a white person call a black person that and it's a different story. It's impossible to come up with a scheme where, going in, you know what words are punishable from what words aren't. It always depends on the context and it always depends on derivation.

You wouldn't say that women or minorities must accept harassment. You're just saying it's not a government concern?

Exactly. As an employer myself, I would not tolerate that behavior in a workplace that I controlled. But that's my choice as an employer. I set the rules regarding decorum. If you have an employer who enjoys bawdy talk, then he has the right to engage in that kind of speech, just as he does at home.

But certain types of speech can be illegal, such as making false and defamatory statements about someone.

It's not illegal in the sense that the government can criminalize it. It's illegal in the sense that there is a civil action that can be brought. But in libel and defamation lawsuits, the plaintiff has to prove you've suffered a financial loss. That's not true in the hostile-environment, sexual-harassment cases such as the one involving the Jacksonville shipyard. The women are just saying they are deeply offended. It's important to note that there's a universe of difference between the government criminalizing or allowing liability to be imposed upon speech and the government invading the workplace and setting rules of propriety.

Friends and foes alike characterize you as a dominant figure who discourages debate.

I think there's plenty of dissent in the ACLU, and we've had good, healthy debates about policies. You have to come back to one thing: I have nothing tangible to offer people, to offer our members, to offer society. There's only one reason why this organization exists, and that's to protect an intangible, an ideology. If we tinker with that ideology, we've lost our product. We have to be very clear about what we think in order to have people follow us, in order to have an impact. If we equivocate, why should anyone support us when they can't predict where we're going to come out on anything? The only reason we have 300,000 members [nationwide] is that they count on us as a beacon for freedom, freedoms that we've solidly supported in the past.

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