Lukianoff in the ‘Daily Journal’: ‘“Lyle” Portends Life Without Freedom, “Friends,” “Seinfeld”’

By on March 14, 2005

I devoted my regular column in the California Daily Journal last week to the coming decision in Lyle v. Warner Bros. Television. I explain the basics of the case:

The plaintiff, Amaani Lyle, was hired to take notes on the hit sitcom “Friends.” When she was fired four months later, officially on grounds that she could not take notes quickly enough to keep up with the writers’ rapid-fire brainstorming, she filed a lawsuit for sexual and racial harassment. The basis of her claim? That in the course of taking notes for a comedy show obsessed with sex, she was—shock upon shock—present for constant sexual joking among the writers.

While I think Harvey’s piece did a great job explaining the absurdity of the case, I wanted to expand upon the impact the Lyle case would have on campuses across the country if not overturned:

Whatever the future consequences of the appeal court’s poorly considered opinion, overly expansive interpretations of harassment have already had a disastrous effect on our nation’s most important “communicative workplace”—our colleges and universities. Claims of harassment are not an incidental or occasional threat to free speech on campus, they are the single biggest loophole to punish protected speech on campus and have been for decades now….

If Lyle is not handily overturned, the university counsels and the “risk management” experts will warn their institutions that the category of speech that can be considered “harassing” has, yet again, expanded. The colleges, trying to avoid being sued, will respond with increased vigilance to address student reports of “harassment” even if the alleged harassment is little more than a comment that angers another student.

The paranoia about sexual harassment liability will rise, the concern for protecting robust expression will, once again, be sacrificed and too many unlucky students will graduate with a belief that speech is only free as long as no one objects to it. Having seen this pattern reproduced over the years with previous harassment decisions, I can all but guarantee this is exactly what will take place.

As for the “creative necessity” defense that the appeals court offered to try to mitigate the damage the decision would have on places that rely on open communication to function:

This meager concession to the free speech and the creative process is woefully inadequate. Courts have wisely tried to keep out of the business of adjudicating the content of speech, since there is a nasty human tendency to find a way to punish opinions or expressions that we don’t like. Even the funniest jokes, when placed in quotes and out of context in legal briefs, tend to look very sinister, indeed. Can you imagine Jerry Seinfeld being dragged in front of a court to justify the “necessity” of including jokes about masturbation, oral sex and homosexuality in creative meetings? I can say with great confidence that, in such a situation, Jerry’s guilt—or innocence—of harassment would depend on whether his jury “got the joke.”

Let’s hope the California Supreme Court understands the potential harm allowing this decision to stand will have. If it does not, however, I am sure the U.S. Supreme Court will eventually have to intervene and I am very confident that free speech will trump the increasingly amorphous definition of harassment.