Opposition Brief — Heller v. Bowman

: Serer

IN THE | F.l

SUPREME COURT of the UNITED SqATES y 10

OCTOBER TERM, 1995 i ~~

Sietiitiieiennimenee

DAVID HELLER.

Petitioner.

SYLVIA SMITH BOWMAN

}

Re ypondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

JUDICIAL COURT OF THE COMMONWEALTH Of}

MASSACHUSETTS

BRIEF FOR THE RESPONDENT IN OPPOSITION

MARTHA F. DAVIS

DEBORAH A. ELLIS

LYNN HECHT SCHAFRAN

NOW LEGAL DEFENSE

AND EDUCATION FUND

99 Hudson Street

New York, New York 1OO13

(212) 925-6635

VIDA K. BERKOWITZ

MeDONALD & ASSOCIATES

One Gateway Centet

Newton, Massachusetts 02158

(617) 928-O080

1.

QUESTIONS PRESENTED

Should this Court grant certiorari when, given that the

“statement” at issue was inadequately linked to

respondent’s involvement in a union election, the case was

correctly decided?

Should this Court grant certiorari when the courts below

correctly considered the context of the statement to

determine the applicable scope of First Amendment

protection?

Should this Court grant certiorari to decide which of the

multi-pronged tests courts should follow to determine

public figure status under Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) when the tests all look to the same

core factors and the distinctions amongst the tests are

insubstantial?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2... cc cece seccues i

TABLE OF AUTHRURREEEED cc ccc ete eee ill

STATEMENT OF THE CASE .............. |

REASONS FOR DENYING THE WRIT ........ 6

BASED ON THE PARTICULAR FACTS OF THE CASE, THE

FINDING THAT BOWMAN Is NoT A LIMITED PUBLIC FIGURE

Is NOT CONTRARY TO THIS COURT’S HOLDING IN GERTZ V.

ROBERT WELCH, INC., 418 U.S. 323 (1974) ........ 6

A. RESPONDENT IS NOT A LIMITED PUBLIC FIGURE

WITH RESPECT TO THE “SPEECH” AT ISSUE

BECAUSE THERE IS NO NEXUS BETWEEN THAT

SPEECH AND THE ISSUE WITH RESPECT TO

WHICH PETITIONER CLAIMS SHE WAS A PUBLIC

POUR ow kc ue eee ee eee es 6

B. THE CONTEXT OF THE STATEMENT AT ISSUE,

MADE TO A CAPTIVE AUDIENCE IN

CONTRAVENTION OF ESTABLISHED STATE

INTERESTS, WEIGHS IN FAVOR OF LESSER FIRST

AMENDMENT PROTECTION .............. ll

CONCLUSION .............00-0e0eee- 17 :

APPENDIX

Tried Rabie A... d 2-0 s ee B.1

Trial Exhibit 3B ................-. B.2

ee

iii

TABLE OF AUTHORITIES

CASES Page

AMF, Inc. y. Sleekcraft Boats,

599 F.2d 34f (9th Cir. ME oa. 7

Adderley y. Florida,

385 U.S. 39 Se 12

Bethel School Dist. No. 403 v. F. raser.

478 U.S. 675 i 12

Briggs v. Village of Dupo,

892 F.2d 1298 (7th Cir. 1990) ..... 17

City Firefighters Union Local 28 y. Duci,

104 Misc. 2d 498 (Sup. Ct. N.Y. Co. 1976) . qj]

Clyburn v. News World Communications, Inc..,

903 F.2d 29 (D.C. Cir. a 6,9

Collins y. Rizkana,

73 Ohio St. 3d 65 a A 15

Commonwealth y. A Juvenile.

368 Mass. 580 , SS 13

Consolidated Edison Co. y. Public Serv. Comm N,

447 U.S. 530 cand ee 12

iv

Dias v. Sky Chefs, Inc.,

1989 U.S. Dist. LEXIS 497 (D. Or. 1989),

aff'd, 919 F.2d 1370 (9th Cir. 1990),

vacated on other grounds, 501 U.S. 1201,

aff'd, 948 F.2d 532 (9th Cir. 1991),

cert. denied, 503 U.S. 920 (1992) ....... 16

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

i ff Me 5. SA eee Serer 14

EEOC v. Pacific Press Publishing Ass’n,

676 F.26 1272 @th Cis. 1962) ......... 15

FCC v. Pacifica Foundation,

438 U.S. 726, reh’g denied, 439 U.S. 883

iar. ae aaah caw ees Ok 14

Foster v. Albertsons, Inc..,

me ee, G5 Cee ow as 2 se we we eG 15

Frisby v. Schultz,

Gar Ue. Se Ce i ee eee eae 12

Gertz v. Robert Welch, Inc..,

416 U.S. 323 GG) ww ww ce ee passim

Greer v. Spock,

ge ee | rererrerer ee ae 12

Harris v. Forklift Systems, Inc.,

0. Se ee ee oe ee ws eS 14

Heffron v. International Soc’y for Krishna

Consciousness, Inc.,

O5z U.B. Gee fie) ec ee ees 44-12

Vv

Hurley v. Irish-American Gay, Lesbian, and Bisexual

Group of Boston,

115 S. Ct. 2338 ET si 3 ee Ce 17

Hustler Magazine y. Falwell,

485 U.S. 46 (1988)... 5, 8, 10

Kerans v. Porter Paint Co.,

61 Ohio St. 3d 486 en 15

Lehman v. City of Shaker Heights,

418 U.S. 298 (1974) 26 12

Lerman v. Flynt Distrib. Co.,

745 F.2d 123 (2d Cir. 1984),

cert. denied, 421 U.S. 1054 ae 9

Lins v. Evening News ASSOC. ,

129 Mich. App. 419 (Ct. App. 1983) ..... 1]

Materia v. Huff,

394 Mass. 328 (1985) ...... 10

Miles v. Perry,

11 Conn. App. 584 (App. Ct. 1987) ...... 1]

Miller v. Transamerican Press,

621 F.2d 72] (1980), cert. denied. 450 U.S.

OM eid so kk ee ee, 11

Monitor Patriot Co. y. Roy,

401 U.S. 265 (1971)... 9-10

NLRB vy. United Steelworkers.

357 U.S. 357 rr Ss ene 13

vi

Naantaanbuu v. Abernathy,

816 F. Supp. 218 (S.D.N.Y. 1993) ..... “3%

New York Times Co. v. Sullivan,

376 GS. Teo 8 a Bowe 6

Phyfer v. Fiona Press,

12 Med. L. Rptr. 2211 (N.D. Miss. 1986) ... 9

R.A.V. v. City of St. Paul, |

505 U.S. 377 (1992) ...........---- 14 |

Robinson v. Jacksonville Shipyards, Inc.,

760 F. Supp. 1486 (M.D. Fla. 1991), cross

appeals dismissed per stipulation

Gi OO Tee ke vo eee ee en 13, 14 |

Roffman v. Trump,

754 F. Supp. 411 (E.D. Pa. 1990) ....... 6-7

Roth v. Lutheran Gen. Hosp.,

ST P.38 3006 Cr Gee. Tien 8 o's ee ee ee 7

Sandison v. Michigan High Sch. Athletic Ass'n,

64 F.3d 1026 (@th Cir. 1995) ........... 7

Shapiro v. Cadman Towers, Inc..,

ee F Fo os |) eer er ye 7

Tavoulareas v. Piro,

817 F.2d 762 (D.C. Cir.),

cert. denied, 484 U.S. 870 (1987) ........ S) .

Universal Money Ctrs., Inc. v. AT&T,

22 F.3G 1527 (10th Cir.), cert. denied,

115 3. GO Ge Clee vk eevee se eeues 7

Vii

Vance v. Southern Bell Tel. & Tel. Co..

863 F.2d 1503 (11th Cir. 1989), cert.

denied, 115 S. Ct. 1110 (1995) .... 0. 14

Versa Prods. Co. y. Bifold Co.,

50 F.3d i89 (3d Cir. a 7

Waldbaum y. Fairchild Publications. Inc. ,

627 F.2d 1287 (D.C. Cir.), cert. denied,

449 U.S. 898 Re re ae 6, 17

Washington vy. Confederated Bands & Tribes Of the

Yakima Indian Nation,

439 U.S. 463 coun Re ee 8

Waters v. Churchill.

114 S. St. 1878 a 12

STATUTES

42 U.S.C. § 2000a Pee een eee 15

Massachusetts Civil Rights Act,

Mass. Gen. L. ch. 12 § 111 (1995) ..._ 4,15

Mass. Gen. L. ch. ISIB § 1.18 I ew 15

Mass. Gen. L. ch. 272 Sores) ........... 13

LAW REVIEW ARTICLES

Suzanne Sangree, “Title VII Prohibitions Against

Hostile Environment Sexual Harassment and

the First Amendment: No Collision in

Sight,” 47 Rutgers L. Rev. 46] (1995) .... 43

will - |

No. 95-393

IN THE

SUPREME COURT of the UNITED STATES

OCTOBER, 1995

CAVID HELLER,

Petitioner,

Vv.

SYLVIA SMITH BOWMAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

JUDICIAL COURT OF THE COMMONWEALTH OF

MASSACHUSETTS

BRIEF FOR THE RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

1. Respondent, Sylvia Smith Bowman, joined the

Department of Public Welfare as a social worker in 1967. As

a consequence of the events at issue, she left the Department

with workers’ compensation in August 1991. (A.45; R.379.)!

Petitioner, David Heller, was a social worker in the same

' Numbers preceded by “Pet.” refer to the Petition for a Wnt of

Certioran, dated September 8, 1995; those preceded by “A.” or “Ad.”

refer to the appendix and the addendum attached thereto, respectively;

numbers preceded by “R.” refer to the Record Transcript, dated Apmnil

5-17, 1993; numbers preceded by “B.” refer to the appendix attached

to the Opposition to the Petition for a Writ of Certiorari, dated

November 10, 1995.

2

office as respondent. For several years prior to the incident

which gave rise to this litigation, Heller was antagonistic

toward Bowman. Bowman testified that Heller threatened her

on one occasion, stating that if she testified regarding another

co-worker, “[she’d] be sorry.” (R.627.) Heller hiinself

testified to his motivation for spite: he had heard that

Bowman had called him a communist (R.978), and she had

told him that she “hated his politics.” (R.976.)’

In October 1987, Heller’s hostility led him to contrive a

scheme to degrade and humiliate Bowman. Throughout her

20 year career, Bowman had been active in Local 509 of the

Service Employees International Union (“Union”). (A.48-49;

R.383-384, 650-652.) In 1987, Bowman decided to campaign

for the Union presidency. (A.46, 49; R.385-386.) Taking

advantage of the availability of Bowman’s photograph in her

campaign materials, Heller prepared two photocopies

consisting of a composite of photographs of naked and

partially naked female bodies in sexually explicit poses on

which he superimposed cut-outs of Bowman’s face and name.

(A.46; R.1072-1073, 1159-1162; B.1-2) One photocopy

depicted Bowman completely naked in a masturbatory position

and the other depicted her legs spread apart to expose her

genitals. (A.46; R.1337-1338; B.1-2) Heller then distributed

copies of these photocopies to five carefully selected

colleagues. (R.1076-1080.) Although Heller asked the

distributees not to show or circulate the photocopies to anyone

else, and testified that he “never” thought Bowman would see

the photocopies, (R. 1079-1080), the Worcester Office of the

Department of Public Welfare was quickly infested with

reproductions of Heller’s creations. (A.52.) Bowman was

soon bombarded with comments relating to the photocopies.

> Petitioner makes much of allegations that respondent used sexual

epithets in the workplace, without identifying any possible relevance of

these alleged statements to the merits of respondent’s claims.

Significantly, the trial court made no finding on this issue.

3

Her supervisor told her that he had seen them and that they

“excited him” and “gave [her] a wonderful body.” (R.392.)

Other colleagues made similar statements, remarking on her

“fine body” and the attention she would receive from the

photocopies. (R.392-393.)

It is clear from the record that Heller prepared and

distributed the Photocopies motivated solely by ill-will and

animosity toward Bowman, and not for any higher political

Purpose. Heller testified that he did not intend “to have an

effect on the overall election” (R.1178), he did not intend to

induce people not to vote for Bowman (R.1178), and he did

not “intend to degrade Bowman as a candidate.” (R.1122.)

Rather, the photocopies were meant to be a “private joke”

(R.1196) to be shared with five employees who appreciated

Heller’s “off-color humor” (R.1078-1079) and who had

already “made up their minds” with respect to the upcoming

election. (R.1178.) He further testified that he took pains to

ensure that the photocopies would £0 no further, and that he

“never thought {Bowman] would see [them] in a million

years.” (R.1079.) Yet, raising the First Amendment issue at

trial, Heller attempted to transform his crude personal attack

upon a co-worker into enlightened political discourse.

Although he testified that he intended to make Bowman “look

[as] ridiculous” as he felt her ideas were (R.1168), he was

unable to articulate how the images he crafted of Bowman

reflected anything about her political positions or integrity as

a candidate. (R.1167-] 168.)

When Bowman saw the Photocopies, she was so shocked

that she could not Clearly recall the events of the next few

hours. (A.54; R.400-401.)° The Photocopies made her fee]

* Petitioner Suggests that the acute emotional distress Bowman suffered

was feigned because the photocopies were similar to other pictures that

frequently circulated through the office. (Pet.8.) The record is clear

(continued...)

4

“fearful,” “vulnerable” and “degraded.” (A.81.) The trial

court found the photocopies “intimidating” and that they

“reduced [Bowman] to nothing more than a naked woman,

spread-eagled and exposed.” (A.87; R.39.) Bowman’s

treating psychologist testified that the photocopies caused

Bowman to suffer from Post-Traumatic Stress Disorder,

which includes symptoms of fearfulness, flashbacks, difficulty

with memory and concentration, uncontrollable crying and

loss of trust. (A.57-58; R.494-495.) This testimony went

uncontradicted.

2. Bowman filed suit in the Suffolk County Superior

Court, alleging a variety of claims based upon Heller’s

preparation and distribution of the photocopies, including

claims for intentional and reckless infliction of emotional

distress, defamation and violations of the Massachusetts Civil

Rights Act. Judge Flannery ruled that Bowman had proven

all the elements of intentional infliction of emotional distress

under Massachusetts law and that Heller had violated

Bowman’s statutory right to be free of sexual harassment,‘

and awarded Bowman $35,000 in damages.

(...contunued)

that the Bowman photocopies differed markedly from all other

previously circulated photocopies in their focus on an identifiable co-

worker from the same office and their sexually-explicit content. (A.52,

63; R.26, 235, 266-267, 1147-1148, 1185-1186.) Moreover, given the

practice in the Department of circulating “humorous” material (A.51-

52; R.235, 267), the trial court concluded that Heller had to be aware

that Bowman was substantially certain to see the photocopies. (A.51-

52.)

* Although the trial court found ample evidence to conclude that Heller’s

conduct “clearly created an ‘intimidating, hostile, humiliating or

sexually offensive work environment,’” (A.82) (citations omitted), the

Supreme Judicial Court of Massachusetts summarily disposed of

Bowman’s claim that Heller's actions violated her right to be free from

sexual harassment under the Massachusetts Civil Rights Act (Mass.

Gen. L. ch. 12 § 111 (1995)). (A.6 0.4.)

5

In addressing the First Amendment issue, the trial court

held that although Bowman was a limited purpose public

figure as a result of her candidacy in the Union election, the

photocopies fell outside the scope of First Amendment

protection because: (1) they were devoid of an articulable

message and thereby differed from the political satire

protected by this Court in Hustler Magazine v. Falwell, 485

U.S. 46 (1988), and (2) “First Amendment concerns are

subject to various restrictions in the workplace where

employees may be a captive audience.” (A.70.) The trial

court’s well-reasoned opinion was grounded in a fact-specific

determination of both the context of the alleged speech and its

utter lack of content.

3. Heller appealed, and the Supreme Judicial Court of

Massachusetts took jurisdiction of the matter sua sponte. The

Supreme Judicial Court affirmed the trial court’s

determination that Heller’s photocopies were not entitled to

First Amendment protection under Hustler Magazine, stating

that an individual’s status as a public figure is “context-

dependent” (A.13) and that the particular union eiection at

issue was not a public controversy sufficient to give Bowman

public figure status.

Because it concluded that there was no public controversy,

the court found that it “need not decide if the defendant’s

cartoons were germane to the plaintiff's participation in the

[U]nion election.” (A.16n.8.) However, as the trial court

found (A.68-69), and as discussed supra, there is ample

evidence to demonstrate that the cartoons were not germane,

thus underscoring the correctness of the result below.

REASONS FOR DENYING THE WRIT

BASED ON THE PARTICULAR FACTS OF THE CASE, THE

FINDING THAT BOWMAN IS NOT A LIMITED PUBLIC

FIGURE IS NOT CONTRARY TO THIS COURT’S HOLDING IN

GERTZ V. ROBERT WELCH, INC., 418 U.S. 323 (1974).

A. Respondent Is Not A Limited Public Figure With

Respect To The “Speech” At Issue Because There Is

No Nexus Between That Speech And The Issue With

Respect To Which Petitioner Claims She Was A

Public Figure.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), this

Court first elaborated the distinction between limited and all-

purpose public figures. This Court there held that the actual

malice standard developed in New York Times Co. v. Sullivan,

376 U.S. 254 (1964), is to be employed in defamation actions

brought by all-purpose public figures, those who “occupy

positions of such persuasive power and influence that they are

deemed public figures for all purposes,” Gertz, 418 U.S. at

345, and in actions brought by limited public figures, those

who “have thrust themselves to the forefront of particular

public controversies in order to influence the resolution of the

issues involved.” Jd.

In keeping with the underlying philosophy of Gertz, lower

courts, with virtual unanimity, have held that before the actual

malice standard can be applied against a limited public figure,

the defendant must demonstrate that the statement at issue was

“adequately linked” to the matter with respect to which the

plaintiff entered the public limelight. Clyburn v. News World

Communications, Inc., 903 F.2d 29, 32 (D.C. Cir. 1990).

Accord Waldbaum y. Fairchild Publications, Inc., 627 F.2d

1287, 1298 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980)

(statement must be “germane to the plaintiff's participation in

the controversy”); Roffman v. Trump, 754 F. Supp. 411, 417

7

(E.D. Pa. 1990) (statement must “relate to the public issue in

which the plaintiff became involved”).° Petitioner has utterly

failed to demonstrate that the “speech” in question — the

photo-collages of respondent’s head affixed to sexually

explicit naked and partially naked female bodies — bore any

connection to the Union election. Although the court did not

rely upon the lack of nexus between the photocopies and

respondent’s public figure status, respondent is entitled “to

defend [the] judgment on any ground properly raised below

whether or not that ground was relied upon, rejected or even

* Petitioner’s suggestion that state and federal courts use diverse criteria

in applying the Gertz standard, and therefore this Court should grant

the writ, is misguided. Merely dividing an analysis into a different

number of factors is not an indication of diverse criteria. In fact, the

courts themselves have acknowledged that the varying applications of

the Gertz test are consistent in spite of the fact that different courts use

a differing number of steps. See, e.g., Naantaanbuu v. Abernathy, 816

F. Supp. 218, 224 (S.D.N.Y. 1993). Clearly, the fact that courts

articulate tests differently does not necessitate diverse outcomes. Each

court employing the Gertz test looks to the same core factors: whether

the target entered the public sphere and whether the statement at issue

relates to the public side of the plaintiff's life. There are many

circumstances in which courts use different tests to reach substantially

the same results. See, e.g., Sandison v. Michigan High Sch. Athletic

Ass'n, 64 F.3d 1026, 1030 (6th Cir. 1995) (four-prong test for

determining whether to issue a preliminary injunction); Roth v.

Lutheran Gen. Hosp., 57 F.3d 1446, 1453 (7th Cir. 1995) (two-prong

initial test, followed by a balancing test); Shapiro v. Cadman Towers,

Inc., 51 F.3d 328, 332 (2d Cir. 1995) (two-prong test); of. Versa

Prods. Co. v. Bifold Co., 50 F.3d 189, 199, 202 (3d Cir. 1995) (ten-

factor test to determine likelihood of confusion); Universal Money

Cirs., Inc. v. AT&T, 22 F.3d 1527, 1530 (10th Cir.), cert. denied, 115

S. Ct. 655 (1994) (four-factor test); AMF, Inc. v. Sleekcraft Boats, 599

F.2d 341, 348-49 (9th Cir. 1979) (eight-factor test). These formulaic

distinctions are not the types of splits among the courts that the writ of

certiorari was designed to remedy.

8

considered.” Washington v. Confederated Bands & Tribes of

the Yakima Indian Nation, 439 U.S. 463, 478 n.20 (1979).°

As the extensive record demonstrates, and the trial court

found, petitioner’s “private joke” (R.1196) had nothing to do

with the election. Petitioner acknowledged that he did not

intend to “have an effect on the overall election” (R.1178),

did not intend to induce people not to vote for respondent

(R.1177-1178) and did not intend to “degrade Bowman as a

candidate.” (R.1122.) In fact, Heller only distributed the

photocopies to five co-employees who had already “made up

their minds.” (R.1178.) He never meant to influence the

overall election: indeed he averred that he took pains to keep

his handiwork out of the marketplace of ideas. (R.1079,

1178-1179.) In light of the personal antagonism petitioner felt

for Bowman (R.627, 976, 978), any political purpose

contrived by petitioner’s counsel is a transparent afterthought.

The absence of any nexus to Bowman’s limited public

Status is critical to the instant case. Unlike the respondent in

Hustler Magazine v. Falwell, 485 U.S. 46 (1988),’ Bowman

° Given that the result in this case is the correct one, and that the writ is

to be granted “only for compelling reasons” (Sup. Ct. R. 10), any

inconsistency between the rulings of this and other courts and the

Supreme Judicial Court of Massachusetts’ determiznstion that this

plaintiff, on these facts, was not a public figure, does not make this

case worthy of certiorari.

’ Throughout his argument, petitioner tries to pique this Court’s interest

by claiming that respondent has attempted to cloak herself in the garb

of “political correctness,” and that the only difference between

respondent and Jerry Falwell is one of gender. This is a faulty

assertion; the facts here and those in Hustler are readily distinguished.

Hustler involves a “nationally known” public figure; this case does not.

Hustler involves a widespread dissemination in a public arena; this case

involves dissemination in the target’s workplace. And finally, Hustler

involves speech relevant to the target’s position and reputation; this

case does not.

—— SE

9

is not an all-purpose public figure whose name is a

“household word.” Tavoulareas v. Piro, 817 F.2d 762, 772

(D.C. Cir.), cert. denied, 484 U.S. 870 (1987). If Bowman

is to be labeled a public figure at all, she may be so identified

only for the very specific purpose of the Local 509 Union

election of 1987.* Heller’s photocopies, depicting Bowman’s

head superimposed over naked bodies in sexual poses, are

simply not “adequately linked” to the election. Clyburn, 903

F.2d at 32. The figure of a naked woman does not send a

message about one’s integrity as a candidate. See Phyfer v.

Fiona Press, 12 Med. L. Rptr. 2211 (N.D. Miss. 1986)

(photograph of naked woman, identified as plaintiff, found to

have no relation to plaintiff's status as elected official or

political candidate); cf Naantaanbuu v. Abernathy, 816

F. Supp. 218 (S.D.N.Y. 1993) (allegations of romantic

involvement with Dr. Martin Luther King, Jr., are outside the

scope of limited public figure status created by running for

political office). Without having put her personal, sexual

mores at issue, respondent cannot be a limited purpose public

figure with regard to petitioner’s creation. See Lerman v.

Flynt Distrib. Co., 745 F.2d 123, 136-38 (2d Cir. 1984),

cert. denied, 421 U.S. 1054 (1985) (plaintiff, having injected

herself into societal debate over sex and nudity, found to be

a limited public figure for that purpose and photograph of a

naked woman, identified as plaintiff, found to be relevant to

that debate).

We do not deny that a “candidate who vaunts h[er] spotless

record and sterling integrity cannot convincingly cry ‘Foul!’

when an opponent . . . attempts to demonstrate the contrary,”

but this is simply not the setting of the present case. Monitor

* Thus, petitioner’s likening of respondent to President Kennedy, Jesse

Jackson, Richard Nixon, Bill Clinton, Hillary Rodham Clinton, and

Others is preposterous. (Pet.22; Ad.1-9.) Those individuals are all-

purpose public figures, and as such ail aspects of their lives are

exposed to scrutiny.

10

Patriot Co. v. Roy, 401 U.S. 265, 274 (1971), quoted in

Hustler v. Falwell, 485 U.S. 46, 51-52 (1988). Petitioner has

never asserted either that the “speech” in question was in

retaliation for the manner in which Bowman portrayed herself

as a candidate or that the “speech” was intended as an assault

on Bowman’s integrity as a candidate. Heller’s “private

joke,” at the expense of an elderly woman whom he disliked,

was to be shared only with a select few who shared his “off-

color humor.” (R.1075-1080.) In fact, he explicitly told

those colleagues to whom he gave the photocopies not to show

or circulate them. (R.1079-1080.) It is clear under these

covert circumstances that the photocopies were not intended

to be — and never were — the political satire which petitioner

now contends. Heller wanted to make Bowman “look

ridiculous” irrespective of the Union election. The trial

court, which heard the testimony and was best able to

evaluate Heller’s credibility and intent, concluded that “no

articulable political statement [could] be gleaned from the

photocopies of Bowman.” (A.68.)

Even in those cases petitioner cites to support his

contention that candidates for union elections are per se public

figures, the courts have engaged in this type of factual

analysis. In Materia v. Huff, 394 Mass. 328 (1985), the

“facts essential” in determining whether the target was a

public figure were agreed by the parties to be the following:

[The target] had been secretary-treasurer of Local 526

for fifteen years and was seeking another term in office

when the alleged defamation occurred. The letter in

dispute, signed by . . . the opposing slate in the election

campaign, attacked the [target’s] past performance as a

union official.

Id. at 330 (emphasis added).

1]

Similarly, most of the other cases relied upon by petitioner

make clear that the targets were public figures because the

speech involved the targets’ status and their special duties as

union officials. See Miller v. Transamerican Press, 621 F.2d

721 (1980), cert. denied, 450 U.S. 1041 (1981); Lins v.

Evening News Assoc., 129 Mich. App. 419 (Ct. App. 1983);

City Firefighters Union Local 28 v. Duci, 104 Misc. 2d 498

(Sup. Ct. N.Y. Co. 1976); see also Miles v. Perry, 11 Conn.

App. 584, 592 n.7 (App. Ct. 1987) (“[uJnion officers are

generally held to be public figures for purposes of union

business”). In the remaining cases either the parties agreed

to the “public figure” label, the court never reached the

question of whether the target was a public figure, or the

speech involved was clearly related to the limited purpose for

which the target was deemed to be a public figure.

The determination of the nexus between speech and an

individual’s public involvement is, by its very nature, a fact-

specific inquiry. Reasonable triers of fact will therefore differ

in their resolutions of this query. Accordingly, even if this

Court were to determine that petitioner’s speech bore a

sufficient relation to respondent’s public involvement, the

import of this holding would be necessarily limited to the case

at bar and would not constitute “compelling reasons”

justifying this Court’s grant of certiorari. Sup. Ct. R. 10.

B. The Context Of The Statement At Issue, Made To

A Captive Audience In Contravention Of

Established State Interests, Weighs In Favor Of

Lesser First Amendment Protection.

This Court has long recognized that the particular

context of speech will determine the appropriate scope of First

Amendment protection. As Justice White stated, “(t]he First

Amendment does not guarantee the right to communicate

one’s views at all times and places or in any manner that may

be desired.” Heffron v. International Soc’y for Krishna

12

Consciousness, Inc., 452 U.S. 640, 647 (1981) (holding

fairgrounds context to be relevant to proper scope of First

Amendment protection). In many other contexts this Court

has declared that countervailing governmental interests

necessitate a lesser scope of First Amendment protection.

See, e.g., Waters v. Churchill, 114 S. Ct. 1878, 1886 (1994)

(plurality opinion), 1891 (Souter, J., concurring) (public

employment);’ Bethel School Dist. No. 403 v. Fraser, 478

U.S. 675 (1986) (public schools); Greer v. Spock, 424 U.S.

828 (1976) (military bases); Lehman v. City of Shaker

Heights, 418 U.S. 298 (1974) (city rapid transit cars);

Adderley v. Florida, 385 U.S. 39 (1966) (jails).

One context this Court has repeatedly determined warrants

a diminished scope of First Amendment protection is the

“captive audience.” The special interests of the listener who

is not free to leave must be considered in determining the

appropriate scope of First Amendment liberty. See Frisby v.

Schultz, 487 U.S. 474, 487 (1988) (“The First Amendment

permits the government to prohibit offensive speech as

intrusive when the ‘captive’ audience cannot avoid the

objectionable speech”); Consolidated Edison Co. v. Public

Serv. Comm’n, 447 U.S. 530, 542 (1980) (government can

prohibit speech as intrusive if “the ‘captive’ audience cannot

avoid objectionable speech”); Lehman, 418 U.S. at 302

(audience is captive if it is “there as a matter of necessity, not

of choice”).

° In Waters, the plurality opinion stated that, the First Amendment

notwithstanding, it may be appropriate for a government employer such

as the one in this case to prohibit its employees from using rude or

offensive language in the workplace. The plurality concluded that

“[t]he government’s interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively subordinate interest

when it acts as sovereign to a significant one when it acts as

employer.” Jd. at 1888.

Te ST NT

13

As the late Chief Justice Warren recognized, “[e]mployees

during working hours are the classic Captive audience.”

NLRB v. United Steelworkers, 357 U.S. 357, 368 (1958)

(Warren, C.J., dissenting in part and concurring in part);

accord Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp.

1486, 1535 (M.D. Fla. 1991) (“‘Few audiences are more

Captive than the average worker’”) (quoting Balkin, “Some

Realism About Pluralism: Legal Realist Approaches to the

First Amendment,” 1990 Duke L. J. 375, 423-24), cross

appeals dismissed per stipulation (March 14, 1995);

Commonwealth v. A Juvenile, 368 Mass. 580, 583 (1975)!°

(“store employees were involuntarily present” during

offensive speech and “could not be expected to abandon their”

positions). In keeping with the above authority, the trial court

Stated that “First Amendment concerns are subject to various

restrictions in the workplace where employees may be a

Captive audience.” (A.70.) See also Suzanne Sangree, “Title

VII Prohibitions Against Hostile Environment Sexual

Harassment and the First Amendment: No Collision in

Sight,” 47 Rutgers L. Rev. 461 (1995) (arguing that

employees are the prototypical captive audience).

There can be little doubt that Bowman, as a full-time

employee of the Department of Public Welfare, was held

captive to Heller’s attacking speech — speech that generated

an increasingly hostile environment for Bowman. Short of

leaving her job of twenty years, Bowman simply had no way

of avoiding the objectionable speech and its consequences. !!

© The statute examined in A Juvenile, Mass. Gen. L. ch. 272 § 53

(1973), was amended in 1983, thereby superseding the principal

holding. However, the statutory amendment in no way alters the

principle for which respondent cites to this case.

'' Any suggestion that Bowman was not a Captive audience because she

could have chosen not to view the photocopies is absurd. Her

workplace was infested; the photocopies had become the talk of the

(continued...)

14

It is indisputable that Massachusetts has a valid interest in

protecting employees from the type of speech petitioner

uttered in the instant case. States have a long-recognized

interest in keeping the workplace free from discriminatory and

harassing speech, an interest which necessarily limits the

degree of First Amendment protection to be provided such

speech." See R.A.V. v. City of St. Paul, 505 U.S. 377, 389

(1992) (noting that “sexually derogatory ‘fighting words,’

among other words, may produce a violation of Title VII’s

general prohibition against sexual discrimination in

employment practices”). This Court and others have been

particularly sensitive to abuses in the workplace, see, e.g.,

Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 370 (1993)

(finding Title VII violation when the workplace is “permeated

with ‘discriminatory intimidation, ridicule, and insult,’ .. .

that is ‘sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working

environment’”); Vance v. Southern Bell Tel. & Tel. Co., 863

F.2d 1503 (11th Cir. 1989), cert. denied, 115 S. Ct. 1110

(1995) (holding that symbolic references to lynching could be

restricted in the workplace), and courts have not hesitated to

uphold restrictions on speech when that speech creates a

hostile work environment. See Robinson, 760 F. Supp. at

1535 (“[Pornographic] pictures and verbal harassment are not

''(.. continued)

office. (A.81.) Indeed, Bowman was subjected to comments from

both her supervisor and her colleagues about her new “wonderful,”

“fine” and “excit[ing]” body. (R.392-393.)

‘2 This Court has “long recognized that not all speech is of equal First

Amendment importance.” Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., 472 J.S. 749, 758 (1985). Speech that is “vulgar,”

“offensive” and “shocking” is “not entitled to absolute constitutional

protection under all circumstances.” FCC v. Pacifica Foundation, 438

U.S. 726, 747, reh’g denied, 439 U.S. 883 (1978). Heller’s crude

photocopies, if speech at all, should be considered low-value speech

meriting lesser constitutional protection.

ee re

15

protected speech because they act as discriminatory conduct

in the form of a hostile work environment.”); EEOC y.

Pacific Press Publishing Ass’n, 676 F.2d 1272, 1280 (9th Cir.

1982) (compelling interest, in eliminating gender

discrimination in the workplace may justify First Amendment

restrictions). There can be Jittle doubt that the photocopies,

which reduced Bowman in front of her supervisors and

colleagues to “nothing more than a naked woman, spread-

eagled and exposed” (R.39) created a hostile environment in

which Bowman was required to work.

Enforcing a civil judgment for intentionally tortious conduct

is an appropriate means for the state to demonstrate its

substantial interest in protecting workers from sexual

harassment. While it is true that Bowman’s claims under the

Massachusetts Civil Rights Act were dismissed on appeal,"

the state interest in maintaining a workplace environment free

of discrimination derives its roots not merely from specified

Statutory prohibitions, but from common law concerns of

equity, fairness and equality. See Foster v. Albertsons, Inc.,

254 Mont. 117, 126 (1992) (“Montana has recognized a

common law cause of action for retaliatory discharge related

to sexual harassment”); Kerans v. Porter Paint Co., 61 Ohio

St. 3d 486 (1991) (creating common law remedy for sexual

harassment); Collins v. Rizkana, 73 Ohio St. 3d 65 (1995)

(adopting common law tort of wrongful discharge in violation

° The Commonwealth of Massachusetts conditions a judgment under its

Civil Rights Act on a finding of threats, intimidation, or coercion. It

was because of this added requirement, which is not necessary to

establish sexual harassment under the law prohibiting employment

discrimination in Massachusetts, Mass. Gen. L. ch. 151B § 1.18 (1995)

or under federal law, Title VII, 42 U.S.C. § 2000a (1995), er seq.,

that the Supreme Judicial Court vacated the trial court’s judgment under

the Massachusetts Civil Rights Act. Because Bowman did-not raise a

claim under these more specific laws prohibiting sexual harassment, the

lower courts were not required to determine whether their statutory

requirements were met here.

16

of public policy based on workplace sexual harassment.

Court held that statutory prohibitions against sexual

harassment do not preclude adoption of common law tort

given strong public policy at issue); Dias v. Sky Chefs, Inc..,

1989 U.S. Dist. Lexis 497 *18 (D. Or. 1989), aff'd, 919

F.2d 1370 (9th Cir. 1990), vacated on other grounds, 501

U.S. 1201, aff'd, 948 F.2d 532 (9th Cir. 1991), cert. denied,

503 U.S. 920 (1992) (holding common law action for

wrongful discharge based upon protestation of sexual

harassment not preempted by pertinent statutory prohibitions).

Massachusetts chose to protect its employee from that hostile

work environment by, inter alia, permitting claims under the

tort of intentional infliction of emotional distress.

As the trial court properly concluded, when “speech” is

directed at a captive audience in contravention of established

State interests, that context is relevant to, though not

dispositive of, the First Amendment analysis. In the instant

case, where the “speech” is simply not germane to

respondent’s status as a limited public figure and where the

context calls for a diminished level of First Amendment

protection, the Massachusetts’ courts were correct in refusing

to require a showing of actual malice.

Petitioner’s final contention, that the court below engaged

in viewpoint discrimination, because its ruling was “premised

upon findings of fact that ‘establishe[d] an “approved” view

of women’” (Pet.33), is baseless. Neither of the courts below

devised a standard as to what would be an acceptable portrait

of a woman. The Supreme Judicial Court of Massachusetts

never addressed the substance of the photocopies. (A.16 n.8.)

To the extent the trial court considered the content of the

images, it was for the entirely appropriate determination of

whether there was a nexus between the images and the

purpose for which Bowman may have been a public figure.

(A.70.) Petitioner’s fallacious argument that viewpoint

discrimination occurred below is simply another transparent

17

attempt to portray this correctly decided, fact-specific case as

worthy of this Court’s review. "4

CONCLUSION

Heller’s post hoc attempt to convert his crude photocopies

of Bowman into some sort of political satire makes a mockery

of one of this country’s most treasured principles, that the

free exchange of ideas is constitutionally protected. The

record demonstrates, and the trial court so found, that

Heller’s purpose in preparing the images was not to sway

votes or influence the election but rather to ridicule and

demean a female co-worker he disliked. This “speech” bore

no relation to Bowman’s possible status as a limited purpose

public figure. There is no constitutional shield for mounting

a personal attack against a co-employee. Briggs v. Village of

Dupo, 892 F.2d 1298, 1302 (7th Cir. 1990) (“First

Amendment does not protect public employees’ ordinary

personnel disputes”).

'* A further example of petitioner’s attempt to muddy the waiers is his

invocation of Hurley v. Irish-American Gay, Lesbian, and Bisexual

Group of Boston, 115 S. Ct. 2338, 2345 (1995). Hurley concerned a

parade — a gathering together of people to express themselves as a

group with a common purpose — which in and of itself is an expression

protected by the First Amendment. In that context, this Court correctly

found that a “narrow, succinctly articulable Message is not a condition

of constitutional protection” when referring to parade participants.

However, in the present case, a nexus must exist between the speech

and the limited purpose for which a person is a public figure. See,

e.8., Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1295

(D.C. Cir.), cert. denied, 449 U.S. 898 (1980). A search for a

message is thus appropriate. Here again, as is the case throughout the

petition for certiorari, petitioner conflates the analysis for all-purpose

public figures with that for limited public figures.

18

For all the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Vida K. Berkowitz Martha F. Davis

McDONALD (Counsel of Record)

& ASSOCIATES Deborah A. Ellis

One Gateway Center Lynn Hecht Schafran

Newton, MA 02158 NOW LEGAL DEFENSE

(617) 928-0080 AND EDUCATION

FUND

99 Hudson Street

New York, NY 10013

(212) 925-6635

Counsel for Respondent

Dated: November 10, 1995

APPENDIX

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