Amicus Curiae

Thursday’s 30 Rock episode “When it Rains, it Pours” opens with Liz [Tina Fey] on the receiving end of a construction worker’s cat-call.  Initially, Liz believes the comments are directed at her best friend Jenna [Jane Krakowski].  However, the construction worker quickly corrects this misunderstanding and informs Liz the comments were for her.  After openly speculating on the current medical condition of the construction worker’s genitalia, Liz tells Jenna she has never experienced that kind of attention before.  Jenna responds that Liz has been happy and more confident now that she is with someone and guys can sense it.  Liz and Jenna may have shrugged the encounter off, but for many women such an experience is not received as well.

In the workplace setting Congress has provided a statutory remedy, Title VII of the 1964 Civil Rights Act, to alleviate the hostile and intimidating environment sexual harassment creates.  According to the U.S. Equal Employment Opportunity Commission over the past decade sexual harassment grievance filings have gradually decreased.  Whether this is largely a result of Congress’ intervention or more in response to other factors, such as the changing demographics in the workplace, is a topic for another day.  However, since the encounter did not occur in her workplace Liz’s experience raises the interesting question of what legal remedies to women have for such harassment while in public?

Many States such as New York have passed laws that criminalize certain forms of harassment.  For example, under N.Y. PEN. LAW § 240.26:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.

Harassment in the second degree is a violation.

However, the closest the New York law comes to addressing construction worker cat-calls is through subsection 3.  It would be extremely difficult for the New York Legislature to protect women from this type of harassment through a statute directly addressing the issue.  If harassment through speech was specifically addressed instead of using the broad terms of “conduct” and “acts” in the statute, the New York statute might be deemed unconstitutional.

For example in R.A.V. v. City of St. Paul, the United States Supreme struck down a Minnesota statute that read:

Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

While the Court declared “burning a cross in someone’s front yard is reprehensible,” it nonetheless found it violated the right of freedom of speech under the First Amendment.  Certain categories of speech can be regulated because their content is not protected by the First Amendment, such as obscenity, fighting words, and child pornography.  However, the R.A.V. Court held that while the government may regulate generally the unprotected categories of speech the categories are not “invisible to the Constitution.”  The Court cautioned legislators the unprotected categories may not be made “vehicles for content discrimination unrelated to their distinctively proscribable content.”  Thus, even though the Minnesota Supreme Court limited the construction of the statute to reach signs and displays that amount to Fighting Words the statute was still unconstitutional.  The R.A.V. Court reasoned the statute only applied to fighting words pertaining to “race, color, creed, religion or gender” so fighting words pertaining to homosexuality were permissible.  Since the statute only prohibited speakers from expressing their views on certain disfavored subjects, it violated the First Amendment.

Therefore no matter how lewd and lascivious or reprehensible the construction worker’s comments may be, any legislation that specifically addressed it would have to walk a very fine line.  One misstep and the Legislators could find themselves treading on the First Amendment.  In the absence of specific legislative remedies to rely on some women look to alternative means for relief.  The real question to me seems to be, “would you want someone to treat your sister, wife, or mother this way?”