SAN FRANCISCO, June 17, 2004—The Foundation for Individual Rights in Education (FIRE) has joined a national coalition that is urging the California Supreme Court to reverse a state appellate court decision that has profoundly chilling implications for free speech. FIRE joins concerned law professors and organizations in arguing that the decision in Lyle v. Warner Brothers Television Productions et al. (Lyle) could be used to redefine a great deal of constitutionally protected expression as unprotected “harassment.” In Lyle, the California Court of Appeal held that creative discussions in which writers of the popular sitcom Friends developed ideas and created scripts could constitute sexual harassment of individuals listening to the sometimes bawdy banter of the writers. The amicus (friend-of-the-court) letter demonstrates how Lyle could have frightening consequences for free speech, especially on college and university campuses.
“This amicus letter challenges a legal decision that could destroy the free and open exchange of ideas both on and off campus,” said Greg Lukianoff, FIRE’s director of legal and public advocacy. “If this decision is not overturned, it could transform ‘harassment’ into the exception that swallowed the First Amendment. This would have a particularly devastating impact at colleges and universities, where bizarre definitions of ‘harassment’ already are commonly used as an excuse for stifling the free expression of various points of view,” Lukianoff added.
The accuser in Lyle alleged that she was subjected to harassment by virtue of the frequent sexual banter of the writers—both male and female—of Friends while they discussed ideas and developed storylines and scripts for the show. Although she admits she was not the target of any of the comments, she claimed that some of the comments were derogatory towards women in general and therefore created a “hostile environment” for her work. FIRE joins the Center for Individual Rights and the National Association of Scholars in submitting the letter, which was written by attorney Frederic D. Cohen of Horvitz & Levy, LLP, in Encino, California. The letter argues that writers’ offices, like universities, are “communicative workplaces” that encourage and depend on free-wheeling and uninhibited dialogue and discussion. Rules that give individuals the power to punish anyone who offended them could spell the end of the open exchange of ideas. The letter lists several examples of activities that could be suppressed through restrictions, such as “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.” All of these classes feature sexual themes and would be at risk if the current decision in the Lyle case goes unchallenged. Discussions involving speech that anyone might find religiously or racially offensive would also be at risk. The letter points out that Lyle, when added to other California court decisions, would create “a de facto mandatory speech code for all universities.”
FIRE has documented instances on hundreds of campuses where overbroad definitions of “harassment” have been abused to stifle speech. Most recently, FIRE has challenged a “discriminatory harassment code” at SUNY Brockport which lists “jokes…making fun of any protected group”; “cartoons that depict religious figures in compromising situations”; “calling someone an ‘old bag’”; and “[s]ex-oriented and/or lewd verbal kidding, joking, remarks, questions or gestures” as examples of punishable “harassment.”
Indeed, during the past two decades the misinterpretation of federal sexual harassment law by colleges and universities became so rampant that on July 28, 2003, Assistant Secretary Gerald A. Reynolds of the U.S. Department of Education’s Office for Civil Rights issued an open letter to all college and university presidents in the United States that explained what should have been obvious— harassment law and federal regulations must be interpreted in a manner clearly consistent with the First Amendment.
“If Lyle is not overturned,” Lukianoff concluded, “institutions in California that rely on the free flow of ideas—including the state’s colleges and universities—may no longer be afforded the full constitutional protections that they deserve. A claim of offense would be enough to silence the most essential debates and discussions. This could usher in a new and particularly disturbing phase in the ongoing battle for free speech on campus.”
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.
Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; firstname.lastname@example.org