Every year when I attend a national conference of administrators for America’s colleges and universities, one message comes through loud and clear: claims of harassment, sexual or otherwise, are out of control.
At this conference, experts review harassment case law, recent suits and settlements from across the country. They also tell horror stories of absurd harassment accusations they have battled and quote statistics placing the cost of defending just one of these suits, no matter how frivolous, at hundreds of thousands of dollars, with the average award to plaintiffs equally high.
In my work at the Foundation for Individual Rights in Education, the genesis of the problem has become obvious: Students and far too many professors and administrators make no distinction between "harassment" and "offense." Offended students will often seek punishment for jokes or even political opinions through the student judiciary and lawsuits.
Unfortunately, the legal landscape is so badly muddied by a number of overly expansive or unclear court opinions that universities believe they have to take seriously even claims that clearly implicate unquestionably protected speech. Due, in part, to the frenzy to protect themselves from these lawsuits, universities often respond to any report of "offensive" speech aggressively – and free speech is often the first casualty.
A current case that threatens to exacerbate the confusion between "harassment" and protected speech is Lyle v. Warner Bros. Television. 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.
Lyle did not allege that the speech was directed at her. Rather, she thought the joking showed a "complete disrespect" for women and was therefore "harassment."
A lower California court rightfully treated the suit as frivolous. After all, Hollywood comedy writers are hired not just to make crude jokes, but to make the funniest crude jokes they can for programs such as "Friends." How can they do their jobs if anyone overhearing those jokes could sue them for millions of dollars, merely because they found those jokes tasteless?
An appeal court in California, unfortunately, did not see it this way and overturned the lower court’s decision, essentially allowing the most sensitive listeners a veto over content they find offensive.
While it is easy to forget, the original justification for "hostile environment" sexual harassment laws was to prevent women from being discriminated against (that is, singled out for negative treatment) because of their gender. As a sign of how far the law has strayed in California, the judge virtually laughed off the writer’s claim that this wasn’t harassment because they just treated Lyle like everyone else at the meeting.
By rejecting this argument, California courts have turned "discrimination" on its head. Now sexual discrimination can include not singling out women for different treatment in the workplace. I sometimes wonder, half-jokingly, if the P.C. left and cultural conservatives are somehow in cahoots in an attempt to bring about a neo-Victorian age in which rudeness is against the law and any modern-day Lenny Bruces would be thrown in jail.
The court did, however, allow for the possibility of a "creative necessity" defense. This would mean that if Warner Bros. could show that the sexual comments were absolutely necessary to the creative process, then it might be able to protect itself from sexual harassment liability.
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."
Fortunately, the California Supreme Court has agreed to review this decision. A wide range of groups including the Student Press Law Center, the Los Angeles Advertising Agencies Association, the Center for Individual Rights, the Motion Picture Association of America and the Foundation for Individual Rights in Education have joined in filing an amicus brief that explains the grievous implications of this decision for expression at all "communicative workplaces" – workplaces that rely on the uninhibited flow of ideas in order to function correctly.
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.
In the 1980s and ’90s, colleges and universities passed speech codes often defining "harassment" as merely speech that "offends," "demeans" or "stigmatizes," in a sneaky attempt to bypass the First Amendment. Despite multiple court decisions that have overturned these codes, the number of these overbroad "harassment" codes actually increased on campuses over the years. The problem became so bad that in 2003 the Office of Civil Rights of the Department of Education actually had to issue a letter of clarification explaining to universities that "harassment" does not mean merely being offended.
In spite of the civil rights office’s letter, ridiculous allegations of harassment continue. During the past year, students across the country have been found guilty of harassment for clearly protected speech. At Occidental College a student radio shock jock was found guilty of sexual harassment for mocking male and female student representatives – and practically everyone else – on air. At the University of Massachusetts, Amherst, students were threatened with criminal harassment charges for a drawing that mocked race-baiting on campus.
At the University of New Hampshire, a student was found guilty of harassment, kicked out of the dorms and sentenced to mandatory psychological counseling for posting a flier suggesting that co-eds could lose weight by taking the stairs. And at Rhode Island College, a professor was brought up on charges of "harassment" for refusing to punish students’ offensive yet constitutionally protected speech.
Universities across the country will be sent into a liability panic if Lyle is allowed to remain good law. After all, how do you properly discuss Chaucer, Nabakov, Joyce or any number of modern writers without talking about sex? Wouldn’t this make hosting plays such as Angels in America, The Vagina Monologues, or even many by Shakespeare extremely risky?
Readers should not laugh off these scenarios as far-fetched. Equally silly allegations have already been at the center of sexual harassment lawsuits, and I constantly receive e-mail from students who believe they have been harassed simply by hearing things they didn’t like.
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.
If the California Supreme Court does not take this case as an opportunity to restore some sanity to harassment law, we can only expect things on campus to get worse.