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Free-Speech Formalism and Social Injustice
Get PDFThe Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy over the poor, whites over people of color, men over women, straights over LGBTQ. In a formalist legal regime, the government must efface, deny, or ignore all of the structures of power embedded in the private sphere, including racism, sexism, antisemitism, and homophobia. Thus, formalism matters, but does not determine outcomes in free-speech cases. Ultimately, what animates most of the Court’s free-expression decisions, whether formalist or not, is a conservative (neoliberal) commitment to protecting the private sphere, especially the economic marketplace and wealthy economic actors, while simultaneously denigrating and weakening government
Relationships and Retaliation in the #MeToo Era
Get PDFIn this #MeToo era, so much important work is being done (and so many stories are being told and listened to), but very little of the work focuses on retaliation. And none of the work focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, it is the fear of harming workplace relationships. This Article will use a real-life story of harassment to demonstrate how much workplace relationships matter-especially to women-and how the fear of harming those relationships often affects an employee\u27s willingness to report harassment. Thus, this Article argues for reforms surrounding harassment and retaliation law that recognize this reality. Right now, courts penalize victims of harassment for not reporting harassment soon enough because they feared harming their workplace relationships; or, when they do report, courts penalize them by holding that the relationship-based harm they experienced after reporting was not a real harm worthy of a remedy. These courts reason that reasonable employees would not and should not be deterred from reporting harassment because they fear relationship-based harms. And yet, most of the empirical evidence shows that the opposite is true: reasonable employees (sometimes men, but especially women) often do avoid reporting because they fear harming their relationships in the workplace. The law should reflect this reality
