This month last year FIRE entered the fight against a California state court decision that threatens free speech both on and off campus:
June 17, 2004 FIRE Press Release 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.
As I said at the time: “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.” Whatever people may think of the value of shows like Friends, the potential threat from this outlandish expansion of harassment law should be obvious to anyone in a profession that relies on unfettered discourse—professions that include writers, professors, researchers, and artists, just to name a few. Furthermore, as I wrote in my March Daily Journal column:
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.
Virtually nobody believes that real harassment should not be prevented, but the courts have strayed so far from the original intention of harassment regulations that speech which was once unquestionably protected may now be too risky to bother with (for examples of the abuse of the harassment rationale, check out our case archive). We are still waiting for the final word on Lyle. I hope the California Supreme Court will stop the madness and return the state of the law to one friendlier to liberty.