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Hastings Constitutional Law Quarterly

Abstract

While pornography in the public workplace has begun to raise First Amendment concerns, most commentary and jurisprudence has focused on the restriction of verbal speech or the posting of sexually explicit material in the workplace. In Johnson v. County of Los Angeles Fire Department, however, a federal district court struck down as violative of the First Amendment that portion of a sexual harassment policy which prohibited the private consumption of pornography in county firehouses. Using the Johnson decision as a basis for discussion, this Note argues that workplace regulations prohibiting the private reading and consensual sharing of sexually explicit material may be constitutional.

The constitutionality of restrictions on the speech of public employees is evaluated by balancing the employee's right to speak on a matter of public concern against the employer's interest in an efficient workplace. This Note criticizes the Johnson court's analysis of this balancing test, both for categorizing the reading of pornography as a matter of public concern, and for giving insufficient weight to the employer's showing of disruption in the workplace. Following a discussion of the harm of pornography, this Note proposes that once this harm is included in the equation, the government as employer may restrict the private consumption of pornography to rid the workplace of sexual harassment, discrimination, and inequality.

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