LOS ANGELES, February 10, 2005—Since June 2004, the Foundation for Individual Rights in Education (FIRE) has been part of a national coalition urging the California Supreme Court to reverse a state appellate court decision that has profoundly chilling implications for free speech. The broad coalition includes the National Association of Scholars, the Student Press Law Center, the Center for Individual Rights, the Motion Picture Association of America, the Alliance of Motion Picture and Television Producers, Rubin Postaer and Associates (a prestigious advertising agency), and the Los Angeles Advertising Agencies Association, all of whom are concerned that an adverse decision in Lyle v. Warner Brothers Television Productions et al. (Lyle) would redefine a great deal of constitutionally protected expression as unprotected “harassment.” Such a ruling would have frightening consequences for free speech on college and university campuses. The amici, whose brief was filed on Monday, February 7, were represented by Horvitz & Levy, the largest civil appellate firm in California and one which frequently argues before the California Supreme Court.
“The free exchange of ideas both on and off campus will be threatened if this decision is not overturned,” remarked David French, FIRE’s president. “The Supreme Court of California must realize that the wrong decision in this case will have an impact far beyond the realm of TV comedy. Colleges and universities in California will likely face many speech-related lawsuits if this decision stands, and will inevitably react with strict prohibitions on speech to avoid costly litigation. Students who do not have the resources to defend their rights will feel the brunt of these restrictions,” he added.
Plaintiff Amaani Lyle, who was briefly a writer’s assistant for the popular sitcom Friends, has alleged that the frequent sexual banter of the show’s male and female writers subjected her to harassment as they discussed ideas and developed storylines and scripts. While admitting that she was not the target of any of the comments, Lyle claimed that some of the comments were generally derogatory towards women and therefore created a “hostile environment.”
The amicus brief, written for the national coalition by attorney Frederic D. Cohen of Horvitz & Levy LLP in Encino, California, argues that “communicative workplaces,” such as writers’ offices and universities, depend on free-wheeling and uninhibited dialogue and discussion to function. Giving offended individuals the power to sue anyone whose speech bothered them—even if not directed at the offended individual—could spell the end of the open exchange of ideas. Activities that could be suppressed might include “a feminist studies course criticizing pornography, a medical school class on human sexuality…or a public health series on means of combating the spread of AIDS,” according to the brief. Any employee of the university—from a professor to an eavesdropping groundskeeper—might take offense to conversation on such topics and could sue the institution.
Discussions involving speech that anyone might find religiously or racially offensive would also be at risk. As the brief points out, the legal risks inherent in making any person within the range of hearing potentially offensive speech a possible plaintiff would create “a de facto mandatory speech code for all universities.”
Such a situation is not farfetched. FIRE has documented instances on hundreds of campuses where overbroad definitions of “harassment” have been abused to stifle speech. For instance, in November 2004, FIRE defended a student at the University of New Hampshire who was kicked out of his dorm and forced to live in his car after he was accused of violating the university’s “harassment” policies for putting up posters suggesting that freshman girls who wanted to lose weight should take the dorm stairs rather than tying up the elevator. (Under pressure from FIRE, the university relented.)
Greg Lukianoff, FIRE’s director of legal and public advocacy, concluded, “Institutions throughout California that rely on the free flow of ideas, from state universities to the entertainment industry, face a dire threat from the Lyle case. The wrong decision in this case will make an already absurd situation on campus and beyond even worse.”
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. Please visit thefire.org to read more about FIRE’s efforts to preserve liberty on campuses across America.
David French, President, FIRE; 215-717-3473; email@example.com
Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; firstname.lastname@example.org
Frederic D. Cohen, Horvitz & Levy LLP: 818-995-0800; email@example.com