Decision: Burns v. City of Detroit
The Michigan Court of Appeals has issued its long-awaited decision in the case of Burns v. City of Detroit, declining to change its previous ruling affirming a verdict for the plaintiffs. The Court had been directed by the Michigan Supreme Court to consider a constitutional issue which none of the defendants had raised -- Is there a First Amendment right to make comments which are considered to violate the law on sexual harrassment?
The Supreme Court's interest may well have arisen from the publication of an article in a Federalist Society newsletter by Hans Bader, Associate Counsel for the Center for Individual Rights, entitled "Free Speech and Hostile Environment 'Harassment'". Several of the current Justices are members of the Federalist Society.
The Burns case involved extremely "blatant and highly offensive" comments made by the defendants. Some of the numerous examples quoted by the court were:
"[T]hese fucking females up in here will drive you out of your goddamn mind. That’s what you can’t let them do."
"You got to understand that these females in Ident are unhappy women who don’t have men in their lives. For a woman who don’t have a man to be friends with another woman who don’t have a man and getting advice from each other don’t make any sense. What kind of shit is that? These women don’t have nothing else in their lives."
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After plaintiff reported these comments and threats, a meeting took place to discuss various workplace issues. At this meeting, defendant Dereck Hicks, one of the fingerprint technician supervisors, stated that women are apt to "cry sexual harassment" because of premenstrual syndrome. Hicks also warned that "anything a man says to a woman he can end up in court."
The Court's first stated reason for declining to change its mind was that the issue had not been raised by any party. It noted:
We decline to reverse our decision in favor of plaintiff for two reasons. First, no defendant should get the benefit of this review because no defendant raised the issue of a possible constitutional violation below. As noted in Booth Newspapers v University of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993), "Issues raised for the first time on appeal are not ordinarily subject to review."
And it observed in a footnote:
It is not surprising that this issue was not raised below or on appeal, given the lack of case law supporting the existence of a free speech violation in circumstances analogous to those present here. Indeed, one of defendants’ attorneys conceded at oral arguments on remand that she could not locate a single case in support of her position.
In light of the propensity of the current Supreme Court to raise issues and even decide matters sua sponte, without the benefit of notice or an opportunity to be heard, this is a telling point. See our previous comments on the Supreme Court's handling of the cases of Sington v. Chrysler Corporation and Mack v. City of Detroit. Note, however, that the Court of Appeals itself has occasionally been guilty of the same offense, as in the case of Taylor v. Kurapati, 236 Mich App 315; 600 NW2d 670 (1999).
On the merits of the free speech issue, the Court of Appeals found that the comments in question were not constitutionally protected. The court ruled that neither the First Amendment nor Article 1, section 5 of the Michigan Constitution (the Michigan free speech clause) protected the language at issue:
Clearly, the comments at issue here were "no essential part of any exposition of ideas . . . ." Id. at 572. Indeed, the comments were more akin to "fighting" words and essentially constituted a vulgar, vituperative, ad hominem attack against an individual. Hill and Hopson continually referred to plaintiff as a "bitch," called her a "fucking female," ridiculed her lack of a man, and, importantly, threatened her with personal harm. These "epithets" and this "personal abuse," directed toward a particular individual, were not "in any proper sense communication of information or opinion safeguarded by the Constitution." Id.; Cantwell, supra at 310. Accordingly, the language at issue simply does not reach the level of constitutionally-protected speech under the doctrine from Chaplinsky, and the sexual harassment judgment did not violate Const 1963, art 1, § 5, or US Const, Am I. While defendants are free to express their views in the workplace, the constitution does not shield them from liability for verbally attacking a coworker by use of ad hominem, sexually-explicit vulgarities.
It also noted U.S. Supreme Court authority justifying such limitations:
Second, the United States Supreme Court has noted, albeit in dicta, that the proscription of sexually-harassing words by way of sexual discrimination laws is permissible, because the laws are essentially directed against conduct.
The Court quoted from Justice Scalia, writing in the case of RAV v City of St Paul, Minnesota, 505 US 377, 389; 112 S Ct 2538; 120 L Ed 2d 305 (1992):
Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. . . . Thus, for example, sexually derogatory "fighting words," among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. . . . Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.
The opinion was written by Judge Patrick Meter. The other two judges, Richard A. Griffin and Henry Saad, are two of the several Bush nominees to the Sixth Circuit awaiting confirmation by the Senate.
See also Brian Dickerson, Free speech draws line at verbal abuse, in today's Detroit Free Press. Dickerson begins his column by concluding that "Four conservative Republican justices who control Michigan's Supreme Court want to gut the state's sexual harassment law." I don't necessarily agree. I perceive that the four justices who directed that the Court of Appeals address this issue wanted to have it considered, in part because no court in this country has yet done so. That does not necessarily mean that the issue will be decided in favor of the First Amendment claim.
The two "liberal" justices, Cavanagh and Kelly, were joined by moderate conservative Weaver in dissenting from the Supreme Court's decision to remand the case to the Court of Appeals. It would take only one of the four who directed that the issue be addressed to join the others to create a majority affirming the Court of Appeals. Justice Stephen Markman would be the most likely candidate to provide that swing vote. I would even go so far as to suggest that the Supreme Court may affirm by more than a 4-3 vote.
There may well be cases in which the comments in question should be protected by the free speech clauses. A defendant who is charged with sexual discrimination for saying "I don't think women should be working at this job" may well have a colorable free speech claim. This one, however, doesn't even come close.
9:42:50 PM 
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