Score one big legal victory for women. In Massachusetts recently, that state's Judicial Supreme Court determined that wrong is wrong regardless of the holy First Amendment. And although at first blush the ruling in Bowman v. Heller may not seem particularly profound, women's rights advocates are celebrating the case's potentially wide-reaching ramifications.
The case centered around the actions of defendant David Heller against co-worker Sylvia Smith Bowman. During the course of a local union election in which Ms. Bowman was running for president, Mr. Heller pasted a photo of her face over the naked body of a centerfold model and made the collage public. Ms. Bowman lost her campaign and subsequently sued Mr. Heller for sexual harassment. Bowman won a $35,000 judgment, and an unhappy Heller appealed.
Heller's appellate attorney Alan Dershowitz, a Harvard law professor and most recently a member of the O.J. Simpson team, made a freedom of speech argument on behalf of his client. Dershowitz, who has defended such high profile clients as Patty Hearst, Leona Helmsley, Mike Tyson and evangelist Jim Bakker, argued that Ms. Bowman was a public figure because she was a candidate in a union election, and that the collage was a political statement protected by the First Amendment.
Ms. Bowman's counsel, Boston labor lawyer Nancy Shilepsky, saw the case in another light. "The workplace is a highly regulated forum, not a public forum," said the attorney who successfully argued that a candidate in a union election is not a public figure. The First Amendment notwithstanding, "sexual harassment, like treason, is a form of conduct effectuated by words, but it is nonetheless unlawful conduct."
Resorting to a purely economic rationale, Shilepsky noted that the root of anti-discrimination laws governing the workplace was to benefit the economy by creating an environment in which all workers can take part. "I was concerned about the potential misuse of the First Amendment to act as a shield for behavior prohibited by law," said the employee rights champion. "This individual [Mr. Heller] tried to cloak his unlawful activity behind a First Amendment argument." The court agreed with Shilepsky and ruled that sexual harassment in the workplace is wrong regardless of an individual's rights to free speech.
As far as how the case will affect anti-pornography legislation, a topic which has long and derisively divided women, advocates on neither side of this thorny issue can take refuge in the Bowman court's ruling. Maintaining that the issues of sexual harassment are analytically different than anti-pornography laws, Ms. Shilepsky noted "sexual harassment is not about what you can see at the movies or buy on the newsstand. It is about what you have to put up with in the workplace. If you don't like what someone on the street corner is saying, you can cross the street, but if you don't like what someone is doing at work, you can't leave your workstation."
The Bowman case is currently on appeal and is being handled by the NOW Legal Defense Fund.
©1995 Kim Scala. Kim Scala is a San Francisco Bay Area writer and landscape designer.
