Among Friends

The protracted battle between the First Amendment and the PC notion that we're all entitled to go through life without being made to feel uncomfortable took an unexpected turn two days ago. The California Supreme Court -- a pioneer in curtailing free speech, ostensibly to protect the "vulnerable" from "verbal harassment" -- unanimously reversed a lower court decision that would have allowed a sexual harassment lawsuit to proceed to trial against the producers of the sitcom "Friends."

Amaani Lyle, a former member of the show's scriptwriting team, based her employment discrimination claim on having been exposed to sexual humor and innuendo during brainstorming sessions for the sitcom. A court of appeal decided in 2004 that Ms. Lyle could sue Warner Brothers Television Productions, Inc., because, when she took a job as a scriptwriters' assistant assigned to summarize ideas bandied about in creative sessions, she had to endure banter uttered in the course of creating scripts for what the court described as "a show about the lives of young sexually active adults."

This raised the possibility that a jury would be asked to decide not only what was said in Ms. Lyle's presence that constituted "sexual harassment," but whether it was really necessary for the scriptwriters to go about their task in such an offensive manner. Were lewd words and gestures part and parcel of the creative process, or was banter indulged in "for purely personal gratification"? Such second-guessing of the creative process would have a chilling effect on writers.

Civil libertarians took some measure of hope when the California Supreme Court agreed to review the appellate court's decision. But also some trepidation -- because in 1999 this court had upheld a lower court's injunction prohibiting the use of racially charged language by an employee of an Avis facility toward fellow workers. "Prior restraints" against speech have long been considered the most severe form of censorship and are almost never sustained by appellate courts. Thus Aguilar v. Avis Rent-a-Car was deemed by First Amendment scholars to be both outrage and aberration. But the four justices who voted to uphold the injunction were still on the seven-member court to review Lyle.

So it was a welcome surprise when the state Supreme Court ruled that "sexually coarse and vulgar language" in a "creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes" could not be punished for being used in the presence of a member of the work-team. The court stressed that none of the offensive words were uttered directly at Ms. Lyle, but rather merely in front of her; nor was she the subject of the banter. In short, she was a member of a team in a job she had voluntarily sought, with full knowledge of the program's content.

Along the way the court reaffirmed important but forgotten principles. The mere use of sexually tinged language in front of a woman could not be considered harassment unless it was so direct and pervasive as to constitute "discrimination because of sex" in the form of "disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Mere sexual banter would not suffice.

Because the court concluded that the banter did not constitute harassment, it did not take up the question underlying workplace sexual harassment litigation (responsible for employers' curtailing virtually all controversial and potentially offensive speech in offices and factory floors): Does the First Amendment protect such speech from official punishment even when it is deemed to violate state and federal anti-harassment statutes and regulations? In other words, are many of our anti-harassment laws and speech codes unconstitutional?

But one member of the court, Justice Ming W. Chin, did reach the underlying constitutional question: "This case has very little to do with sexual harassment and very much to do with core First Amendment free speech rights." Quoting Felix Frankfurter, Justice Chin declared that "we must not tolerate laws that lead to timidity and inertia and thereby discourage the boldness of expression indispensable for a progressive society."

Opponents of another plague on free speech -- campus "harassment codes" aimed at penalizing student speech that might annoy a fellow student on the basis of race, gender and sexual orientation -- also found unexpected encouragement in Lyle. If a court widely deemed one of the nation's most hostile to free speech could recognize the need to protect robust and even obnoxious speech in a "creative workplace," shouldn't universities, by virtue of their truth-seeking mission, enjoy the highest degree of freedom from censorship, and campus harassment codes that regulate speech be abolished?

Workplace censors have indulged in vast overreaching -- and we may hope that the California Supreme Court's newfound understanding of this fact may migrate into other states and areas of civic life. Indeed, one little-noticed development in a federal appeals court will likely speed up that migration. In February 2001, in Saxe v. State College Area School District, the U.S. Court of Appeals for the Third Circuit invalidated on First Amendment grounds the anti-harassment speech code of an entire public school district in Pennsylvania.

The opinion did not attract much attention at the time, but that changed recently. The unanimous opinion in Saxe was written by then-Circuit Judge, now Supreme Court Justice, Samuel Alito.