SJC: FREE SPEECH NO DEFENSE VS. HARASSMENT

By Kimberly Blanton, Globe Staff

WEDNESDAY, June 14, 1995

In a decision expected to resonate across the country, Massachusetts' highest court yesterday rejected the notion that constitutional rights of free speech are protection against charges of sexual harassment.

The state Supreme Judicial Court is the highest court ever to rule on the issue that pits First Amendment rights vs. the rights of employees who say they have been sexually harassed in the workplace. Similar cases have been filed in California, Florida and other states but have yet to be heard by courts there.

The SJC rejected the argument, put forth by Harvard law professor Alan Dershowitz, that his client, David Heller, was acting within his rights when he pasted photographs of coworker Sylvia Bowman's face onto nude magazine spreads and passed them around at work.

Heller claimed Bowman, a state employee running for union office, was a public figure, and that the photographs were campaign fliers aimed at ''ridiculing'' her.

The court, in a 5-2 decision, strongly disagreed, upholding a lower court ruling in Bowman's favor. ''The election in this case had no more public controversy than the usual election of a president of a social club'' or a ''condominium association,'' the court said.

''We conclude that the defendant's speech was not entitled to constitutional protection because there was no public controversy.''

Dershowitz said he would appeal the decision to the US Supreme Court. The decision, he said, was proof the Massachusetts SJC ''has become afflicted with political correctness.''

Bowman, now 69, describes her 7-year legal wrangle as a tortuous experience following the demeaning attack against her while she was a supervisor at the state Department of Welfare.

''I am greatly moved and sustained and nourished'' by the court decision, Bowman said, as she sat close to her attorney. ''This affirms that women, and anyone else, do not have to put up with harassment in the workplace.''

After attorney Nancy Shilepsky called Bowman and left a message on her answering machine saying, ''We won,'' Bowman said she has felt ''a little giddiness and lightness and a sense of the burden dropping away.''

The high court upheld a $35,000 award for emotional distress by the lower court. Shilepsky said Heller has sold a condominium and that the money has been put in escrow.

''It's a very important decision,'' said Jeffrey Hirsch, a partner at the Boston law firm of Robinson & Cole and author of numerous books on labor law. ''Whether it's a union or a social club or a condo organization -- to think involvement by a citizen in a very local activity would make them a public figure is outrageous.''

It is unclear whether the issues addressed in Bowman v. Heller are broad enough to be taken up by the US Supreme Court, as Dershowitz hopes.

But if the nation's highest court does accept the case, Dershowitz said he believes that the makeup of the justices bodes well for overturning the Massachusetts decision. ''It's a dead winner in the Supreme Court,'' he said.

Noting the Supreme Court's support of the First Amendment, Harvey Silverglate, the former president of the American Civil Liberties Union of Massachusetts, said, ''There is no theory under which Bowman's claim can survive that does not transgress the First Amendment.''

Shilepsky said she believes the SJC's decision is on solid ground, because it rejected tenuous arguments that union elections are public forums, just as running for president is a public election. ''The bottom line is the court found workplaces are not public sidewalks,'' Shilepsky said, ''and a union election is not a general election to which the first amendment attaches.

''We believe the US Supreme Court will uphold it.''

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