Strossen: We might very well oppose that. I would think that our present policy would not foreclose opposing that the way we oppose many other kinds of prohibition, such as drug prohibition.
Reason: The issue of trading off rights also comes up in sexual-harassment laws. What's the official ACLU policy on sexual harassment?
Strossen: We have a policy that, along the lines of the Supreme Court's decision last fall, is pretty open-ended. You have to look at all the facts and circumstances in any particular case. We rejected the female employee's position [in Harris v. Forklift Systems] that sexual harassment should extend to anything she considered to be offensive at work. That clearly would allow for restriction of free speech and, unlike market liberals, we believe that em- ployees in private workplaces do have fundamental rights that should be subject to restraint only if necessary to perform the job. We also rejected the employer's argument, which was that to show sexual harassment, you have to show some tangible psychological injury, which is more of a showing than is required in any other anti-discrimination context. We thought that went too far.
In between those two poles, we have to decide on a case-by-case basis. The most contentious case we've had so far, and I really like the way we came out, was the Jacksonville shipyards case. We wrote a brief opposing the court's order to the employer that all sexually suggestive images of women be banned from the workplace. We argued that--to the extent it's not a specifically sexual image that a woman finds offensive and that it's not deliberately thrust in her face repeatedly and directly targeted in a harassing fashion- -male or female employees should be free to look at sexual images during their free time. It's a hard argument to make given the case law, which is that there are no free-speech rights in the private workplace. I think it unlikely that the court will accept our suggested remedies.
Reason: What about the conflict between privacy or property rights and speech rights? For example, are owners of private shopping malls obligated to allow people to distribute literature on their property?
Strossen: Our view is that there are certain fundamental individual rights which may not be intruded upon or violated. When ou Constitution was written, the state was the only entity in society that had sufficient power to deprive individuals of fundamental rights. Now we have corporate concerns with far more power over people's lives than the state ever had in the l 8th century. The market-liberal response is that if the individual doesn't like what their employer is doing--for example, saying that you cannot smoke at your home--then the individual goes off and gets another job. Our view is that's unrealistic.
And if people are not going to have fundamental freedoms at work, then they are not going to have them for all practical purposes, because that's where they're spending the vast majority of their time. Obviously, if you're talking about a mom-and-pop shop, or if you re talking about an owner-occupied housing unit, then vou have to recognize that there are significant personal rights involved, personal rights that are bound up with property rights. So we are striking a balance that would not allow lack of regulation in what we see to be the service of the individual rights.
Reason: So your position is that owners of shopping malls have to permit the distribution of materials?
Strossen: Yes. They can disassociate themselves from the message so they don't seem to be endorsing it. They can have disclaimer signs. They can have counter-speech if they want. Individual stores do not have to serve as a forum. But the common area in the mall, which is the functional equivalent of a sidewalk outside the traditional store or a town square, should serve as a public forum. That's its function. Around the country, most of the human traffic and the opportunity for exchanging ideas is in shopping centers or sidewalks outside shopping centers.
This is one of those cases where rights come into tension with each other. There are some hard cases. At our last national board meeting, one of our board members brought up another example. He pointed out that there are more and more retirement-type villages that are essentiallv completely self-contained communities. These people never go outside and the only way to communicate with them is to get inside to the common areas, to the mailbox areas. Yet there are very strong prohibitions against that.
Now you're talking about somebody's private dwelling. It seems that the counter concern to free speech is much more significant. But what if you re talking about political speech and getting information distributed about candidates or information that people can't afford to mail? In each particular situation you have to make a careful evaluation.
Reason: What about cases where a landlord has moral objections to certain activities that tenants may engage in at the rental property?
Strossen: We would oppose regulation that would intrude on an owner-occupied dwelling; it's just being consistent with the right to privacy. Then you get harder questions when you say, Well, suppose it s large enough so that it's not really a private dwelling. Some lines are going to be seemingly arbitrary. From our position, if you are not saying absolutely no regulation, then we have to draw the line at some point.
There are constantly going to be some difficult issues if you have a fidelity to all rights and don't automatically exalt one above the other. We are constantly drawing balances, even within the First Amendment itself.
Reason: What is the ACLU's position on the idea of extending the Fairness Doctrine to all media, including print? Should people be ensured of venues in which to express their views?
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