Ch. 3 Nonsubordination

“the personal is political” [dirty little secret: within communities

organized around common affiliation]

Anita Faye Hill

Testified Oct. 11, 1991. U.S. & around world “click.” Gave face to what many women experienced in silence, gavevoice to them/us.

B. 1. Sexual Harassment (SH) in the Workplace pp. 246-52

• MacKinnon (‘79 & ‘87): it’s all about “sex” [0 else matters]. Rape, battery, prosti’n, poverty, pornography ignored b/c happen “almost exclusively to women.” bot. p. 245, not assigned

• Abrams (‘89): 1) fear of sexual coercion; 2) marginalizing effect

• Hébert(‘94): T-7 expert; it’s not about sex but economic domination. See especially in high positions, nontraditional jobs. (Strauss-Kahn & SH in IMF, widespread internal culture)

B. 1. Sexual Harassment in the Workplace pp. 246-52

• Abrams (Cornell ‘98) subtler … demand conformity to dominant feminine stereotypes outside workplace; “mere presence is not equal to influence or control”– Hmmm… pending NYC (class action?) suits v. brokerage

houses, after-hours “bonding” events at stripclubs• Schultz (Yale ‘98) maintain most highly regarded jobs

as masculine domains. Key question: whether purpose or effect to undermine equal footing in workplace. N.B. Other work on “caregiving”

B. 1. Sexual Harassment in the Workplace pp. 246-52

• Franke (Stan. ‘97): SH as “technology of sexism,” system of gender norms, women & men as (hetero)sexual objects

B. 1. Sexual Harassment in the Workplace pp. 252-55

Harris v. Forklift Systems, Inc. (‘93) (locker room smut, supervisor’s sexual innuendos, constructive discharge) H: hostile workplace environment actionable under Title VII.Standard: conduct must be sufficiently severe/pervasive to create “objectively hostile or abusive environment” AND “subjectively perceive[d]” as such by π.

Q: how is objective standard applied – reasonable woman? Or “reasonable person:?Q: Real world significance? (go along w/ dirty jokes, etc.) - Joan Kennedy Taylor, “Libertarian Feminists.”

Rene v. MGM Grand Hotel, Inc. (9th ‘02)

Rene v. MGM Grand Hotel, Inc. (9th ’02 en banc, 5-4!, cert. denied ‘03)

• Gross factual allegations; co-worker behavior included sexual assault & batteries. Openly gay π (“light in loafers”?), fired from hotel butler position; wrongful discharge action. Alleged: “b/c of my sex, male.”

• D. Ct. dismissed on summary jdgmt. (pre-Iqbal; now much easier to dismiss on pleadings)

• I b/4 9th: whether T-7 language: “because of sex” > courts split.

Rene v. MGM Grand Hotel, Inc. (9th ’02 en banc, 5-4!, cert. denied ‘03)

• Oncale (‘98) : Some SCOTUS guidance, but parameters remain uncertain. (Gulf coast oil rig, married male π perceived as gay, violent sexual assault) Held, T-7 c/a for male on male SH.

• 9th Cir. maj., held: c/a for use of forbidden criterion for disadvantageous difference in treatment b/c of sex discrimination. Π showed discrim’n in comparison to other men. P. 258

Text authors & Mary Ann Case p. 262

• 9th Cir. adopted theory of sex stereotyping, that men harass other men to enforce traditional heterosexual male gender role by encouraging stereotypical masculine behavior and punishing males who contaminate workplace with “taint of feminine passivity.”

• N.B. Surprising dissenters (Schroeder & Nelson) Maj. “completely eliminates essential element of stat. “b/c of discrim’n” in 5 protected categories.

Line-drawing

• When “unwelcome”? [proof needed]• When should employer be held vicariously

liable for subordinate conduct?• Prevention policies: exercise in political

correctness? Incest ban vs. true love exception? • Workplace realities, especially when

demanding professional jobs. What other opportunities available???? LOL

Discussion Questions

N. 2, p. 261: liability when “equal opportunity harasser”? (jerk to everyone?) 7th: No.N. 3, p. 263: perception gap between men & women; diminishing? (avoid essentialism) N. 4: “unwelcome” N.6 Notice to -erN. 7, p. 267 Harassment Prevention PoliciesN. 8, p. 270, Race + Sex, intersectionality

2. SH in Educational Institutions pp. 272-78

Gebser v. Lago Indep. School Dist., (‘98)(5-4) O’Connor for maj.: no liability unless officials had actual notice of specific misconduct, responded w/ “deliberate indifference” Policy: encourage T-9 compliance scheme; prerequisite of notice to school conserves resources.Stevens’ dissent: encourages administrators to “see no evil”; ostrich-like behavior.

2. SH in Ed’n: Peer Harassment

Davis v. Monroe County Bd of Ed’n (‘99)Facts: 5 months of “severe, pervasive and objectively offensive” misconduct by 5th grade boy against girl, w/ nonconsensual physical contact on school property (crim. guilty plea). Mom repeatedly reported to school officials, who did 0.

O’Connor: upheld T-9 liability where “deliberate indifference to known harassment” where school “exercises subst’l control over harasser” & property where it occurs, & so bad as to deprive π of ed’l opportunities or benefits.

2. SH in Ed’n: Peer Harassment

Fitzgerald v. Barnstable School Committee (‘09) Alioto, unanimous: T-9 is not exclusive remedy; public school can be held liable under §1983 for failing to respond to serious harassment by student against another where school officials put on clear notice. H: Dismissal of complaint erroneous. Bad conduct on school bus: 3d grader repeatedly forced kindergartner to hold up skirt, pull down pants & show privates. School did 0 to correct.

2. SH in Ed’n: Speech & Conduct Codes to Prevent

How to formulate one that allows marketplace of ideas, withstands 1st Amendment challenge?

Other ways to address?

2. SH in Higher Ed’n: Student-Faculty Dating

Issues: Power/coercionConsenting adults, “true love” exception?Adverse consequences to student/lover? To other students?Impact on academic environment?Workable, wise solutions, policies?

D. Pornography pp. 315-316, 317, 323-29

• Sex sells. Frank Rich (2001): combined annual industry revenues $10-14 BILLION! Americans spend more on pornography than on ALL OTHER movies, performing arts, professional football, basketball & baseball combined.

D. Pornography pp. 315-316, 317, 323-29

Catharine MacKinnon & Andrea Dworkin: campaign > Indianapolis ordinance defining as discrimination v. women.

MacKinnon, Pornography as Defamation & Discrimination (1991) p. 317

Claims evidence establishes that pornography use 1) “makes it impossible for men to tell when sex is forced, that women are human and that rape is rape.….makes men hostile and aggressive toward women, [2)] and it makes women silent.”Clicker re 1: agree/disagree?Clicker re 2: agree/disagree?

Rhode, Speaking of Sex: The Denial of Gender Equality pp. 323-24

• Empirical data shows that “exposure to sexually violent material increases viewers’ expressed willingness to commit rape and decreases their sensitivity to its damage.”

• 2/29/12 news: empirical study of increased auto accidents 5 days after NASCAR race.

Q: what, if anything, is normative message of this pornography data?

Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (June 27, 2011)

Trade group representing videogame producers sought declaratory judgment challenging Cal. Law imposing restrictions & labeling requirements on sale or rental of “violent video games” to minors.7-2, Scalia for maj.: games qualified for 1st Am. Protection; refused to expand list of permissible bans on content-based restrictions beyond obscenity, incitement & fighting words. (“too harmful to be tolerated”)

Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (June 27, 2011)

• Overinclusive: Grimms’ Fairy Tales, The Odyssey of Homer, Dante’s Inferno, Lord of the Flies.

• Alito’s concurring op. discusses his independent research on astounding violence. Scalia: disgust is not valid basis to restrict expression; highlights precise danger, that the ideas and not the objective effects of the speech are real basis for statutory restriction.

Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (June 27, 2011)

• Thomas dissent: Founders’ original intent extended to parental authority restricting communication to malleable children.

• Breyer dissent: facial challenge should fail because narrowly drawn, reasonable game maker would know of applicable games for which sale or rental to unaccompanied minors (<18) are prohibited & require labels: where player kills, maims, dismembers or sexually assaults image of human being, appeals to deviant or morbid interests of minors & lacking in redeeming value.

Does Breyer’s dissent fit w/ empirical data?

• yes/no• Is there any formulation possible that could

withstand 1st Amendment challenge?

N. 4 Porn, Internet & Children pp. 327-28

• Difficulties of policing, especially with encryption. In re Subpoena Duces Tecum v. John Doe (11th Cir. Feb. 23, 2012)(individual’s act of decrypting and producing the hard drives’ contents was sufficiently testimonial to trigger Fifth Amendment protection; subpoena quashed)

• Congress keeps trying…

Communications Decency Act

• criminalized transmission of obscene or indecent & patently offensive messages TO a minor

• Reno v. ACLU (S.Ct. ‘97) (overbroad restrictions on speech) fn. 204, p. 327

Child Online Protection Act (COPA)

• Criminalized knowingly making available to minors through Internet commercial materials “harmful to minors”; required websites to use age verification mechanisms.

• Ashcroft v. ACLU (S.Ct. ‘04)(overbroad, transmitting Shakespeare’s Romeo and Juliet could be considered criminal; less restrictive alternatives available) fn. 204, p. 327

18 U.S.C. § 2252A COPA (??)CERTAIN ACTIVITIES RELATING TO MATERIAL

CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY

• Applies to child pornography in or affecting interstate or foreign commerce by any means, including by computer.

• Criminalizes knowing receipt, distribution, sale, possession, or access with intent to view.

• U.S. v. Williams (S.Ct. 2008)(upheld as applied because criminalized advertising for illegal pornography

18 U.S.C. § 2252ADEFINITIONS

• “Distribution” includes making passively available online through file sharing

• “Possession” mens rea knowinglyrequires awareness/knowledge of physical control (passive pop ups, auto-saved thumbnails)

• “Child Pornography” real children, or morphed images indistinguishable from real children (does not include drawings, cartoons, sculptures, or paintings)

18 U.S.C. § 2252AAFFIRMATIVE DEFENSES

• Necessity: trying to destroy images

Statutory Defenses:• Possession or access with intent to view:– Less than 3 images– Immediately destroyed them or gave them to police

• Actor not a child, actually an adult Ashcroft v. Free Speech Coalition (S.Ct. 2002)

Children’s Internet Protection Act (CIPA)

• Requires publicly funded schools & libraries providing public Internet access to block or filter child porn.

• U.S. v. American Library Ass’n, Inc. (S.Ct. ‘03)challenged as prior restraint; Ct conditionally upheld p. 327-28, n. 206. Left open possibility for later challenge if, as applied, software erroneously blocked constitutionally protected material & librarians did not unblock.

Does U.S. population care enough to restrict?

• Yes/no?• Why/why not?• Marketplace of ideas• Is there agreement within this class as to

whether or not to further regulate pornography?

• Clicker: 1) yes, regulate 2) no, don’t bother

Child Sex Abuse

• Norman’s Mary Abbott Househttp://maryabbottchildrenshouse.wordpress.com/2011/12/15/2011-abbott-house-educational-video/

Cleveland County District Attorneys