Don't Sue 'em, Shame 'em

BOSTON — 'TC Boston. -- When I hear these stories I often try to imagine the original scene at the office.

What was in the mind of David Heller when he cut out a photograph of Sylvia Bowman, the 61-year-old co-worker running for union president, and glued her head to the body of a naked model, spread-eagled and holding a banana?


Why didn't the first five colleagues in the office who saw this "artwork" tell him to burn it and to crawl back into his cave?

But that was the scene in 1987 and now the venue is a courtroom. Last week, the tale arrived at the Massachusetts Supreme Judicial Court and may well be headed for United States Supreme Court. The case of Sylvia Bowman vs. David Heller has become the latest and perhaps most heralded example of the conflict between sexual harassment and free speech.


Of course, if Ms. Bowman had been running for president of the United States instead of president of her union, she wouldn't have had a case. People have the right to say whatever they want about public figures, in words or pictures. Remember when Hustler magazine depicted Jerry Falwell having sex with his mother in an outhouse? The Supreme Court called it satire.

If, on the other hand, David Heller had created such images about a woman co-worker or underling who wasn't running for office, he wouldn't have much of a defense. Remember when Teresa Harris sued her boss for abusive language? The Supreme Court said that words could make a sexually offensive environment. They called it harassment.

But union politics lie somewhere between the free marketplace of ideas where anything goes and the workplace where there are legal limits to what you can say to a "captive audience" of employees.

So Mr. Heller's lawyer, the ubiquitous Alan Dershowitz, argues that Sylvia Bowman had willingly plunged into "the rough and tumble" of a political campaign for which she just needed a tougher hide. And her lawyer, Nancy Shilepsky, argues that Mr. Heller attacked her as a woman, not a candidate, and that destroyed her ability to work.

Ms. Bowman was indeed traumatized. The lower court ruled that the "artwork" wasn't satire, it was harassment. But this case falls into the famous gray area that often makes for better conversation than law. Today, if there's a misunderstanding between men and women about sexual harassment, it's about verbal, not physical attacks. It's about words and the threshold of fear.

As Deborah Tannen writes in "Talking Nine to Five," women often experience -- feel -- the threat of physical assault in what men think of as merely words. She describes the reactions to one woman's midnight cab ride with a driver who berated her for miles. Other women who hear this story usually share her terror. Men often believe that yelling isn't so serious. Life, it seems, has finely tuned women's antennae to sounds of male violence.

But life has also taught girls from the earliest playground experience that it may be unsafe to fight their own battles against boys. Daughters are told, and learn, to go to the teacher, and then the dean, and then the law. But sometimes it's not dangerous -- just difficult -- to deal directly with the offender.

Ms. Bowman was devastated by these grotesque images, in part, because of her earlier experiences of abuse. But Mr. Heller had no history of hostility. Nor were women a beleaguered minority in their workplace. And she was running for office.


So as a First Amendment junkie and an opponent of sexual harassment, I think that this case sits right on the border between the laws allowing speech and forbidding discrimination. Either way I look, the view is unhappy.

Have you seen "Disclosure"? When it opened, I was appalled that the first big movie on sexual harassment would be about a man as victim. Similarly, in the still-new, malleable area of sexual harassment, I wouldn't want such a dicey case to end up at the Supreme Court making the law of the land.

Bowman v. Heller may be resolved on the narrow grounds of labor-union law. But in the volatile area of sexual harassment, we've all got to learn how to get out of the gray area without getting into court. Sometimes perhaps shame is as good as a lawsuit.

Oh by the way, did I tell you where Ms. Bowman and Mr. Heller worked? The Department of Welfare. That's right, they belonged to the union of social workers, those people trained in the human skills, the art of helping others to get along.

Ellen Goodman is a syndicated columnist.