The California Supreme Court’s decision (PDF) in Amaani Lyle v. Warner Brothers Television Productions, Inc., tossing out a lawsuit by a disgruntled member of the creative script-writing staff of the popular television program “Friends,” gives an enormous boost to the cause of free speech not only in the workplace, but, by extension, on the college campus. FIRE joined in filing a friend-of-the-court brief in the case precisely because it recognized, at the start, that the outcome of this lawsuit would, in the end, have an important influence on the ongoing battle that supporters of academic freedom have been waging for decades to prevent campus rules against “harassment” from destroying the kind of free-wheeling and uninhibited discussion and argument that are the hallmarks of liberty.
Indeed, the California Supreme Court’s decision—both the majority opinion signed by all seven justices, plus an additional “concurring” opinion signed by one of those justices (Chin)—makes clear the wisdom of the decision by FIRE and a host of its allies who joined together to file that brief. Here’s how and why.
Plaintiff Amaani Lyle sued because she was a member of the script-writing team and, as such, had to sit in on meetings of the team as its members bantered back-and-forth in what they conceded was a sexually charged (in terms of speech) manner. She claimed that this banter made her feel exceedingly uncomfortable and hence constituted sexual harassment. Under both California state and federal law, sexual harassment is legally actionable if it is so severe that it constitutes a form of workplace discrimination. As the court said, “the critical issue…is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” “This means,” said the court, that “a plaintiff in a sexual harassment suit must show the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.” The justices ruled that the banter here did not rise to that level, in part because it was not directed to Ms. Lyle but was rather a part of the creative process engaged in by the script-writing team.
So, how does this have implications for the academic freedom that FIRE and its fellow friends-of-the-court saw, from the start, would likely be affected by whatever decision the court would make?
“The circumstance that this was a creative workplace,” wrote the justices, “focused on generating scripts for an adult-oriented comedy show featuring sexual themes is significant in assessing” whether the speech constituted harassment. The record of the case, concluded the court, demonstrates that this was the creative process at work, and not harassment aimed at discriminating against Ms. Lyle or somehow changing the conditions of her job. In other words, the place where and circumstances under which speech occurs have to be taken into account. And college and university campuses, of course, are the society’s quintessential institutions dedicated to free speech, academic freedom, and robust discussion, argumentation, and inquiry. On a college campus, ideas—including disturbing ones—are the primary product. College education aims to make students uncomfortable, not complacent; it challenges them, rather than assures them that their long-held ideas and attitudes are the only correct ones. Thus, if the logic of the California Supreme Court is to be followed, it would be virtually impossible to sue successfully for even the most offensive speech on a campus of higher education unless the speech was directed to a particular individual under circumstances where it constituted true harassment. And merely making someone uncomfortable with words and ideas does not constitute true harassment.
A concurring opinion by Justice Chin (who also endorsed the majority’s conclusions) went even further. The majority, having decided that the speech at issue in this case did not obtain the level of harassment, never reached the question of whether the First Amendment protected such speech—that is to say, since the speech was not “harassment” within the meaning of California’s sexual harassment statute, the court did not have to decide whether the First Amendment protected the speech even if it somehow constituted harassment within the statute’s definition. But Justice Chin went on, pointing out that because “the First Amendment protects creativity,” the plaintiff’s case was simply a non-starter. No further analysis was necessary, he wrote. “Lawsuits like this one, directed at restricting the creative process in a workplace whose very business is speech related,” he wrote, “present a clear and present danger to fundamental free speech rights.” (Emphasis in the original.) It is not up to juries, he continued, “to dissect the creative process in order to determine what was necessary to achieve the final product and what was not, and to impose liability for sexual harassment for that portion deemed unnecessary.” (Emphasis in the original.)
“Creativity is, by its nature, creative…unpredictable,” Chin concluded, proceeding to quote and cite First Amendment paladin and FIRE supporter Professor Eugene Volokh of the UCLA Law School. Setting forth a virtual rallying cry for freedom of speech and thought not only in the script-writing room but on college campuses as well, Justice Chin concluded: “We must not tolerate laws that lead to timidity and inertia and thereby discourage the boldness of expression indispensable for a progressive society.” He could, of course, have added: “and likewise indispensable for higher education.”
The friend-of-the-court brief was an effort well worthwhile, signed as it was by not only FIRE, but its allies: Alliance of Motion Picture and Television Producers, Center for Individual Rights, Los Angeles Advertising Agencies Association, Motion Picture Association of America, National Association of Scholars, Rubin Postaer and Associates, and the Student Press Law Center. A magnificent effort, and an important win. Thanks and congratulations go to all.