Cal. Supreme Court: Offensive Speech Does Not Equal Sexual Harassment:

The California Supreme Court has issued a very important decision in the Lyle v. Warner Brothers case, more commonly known as the Friends sexual harassment case (I wrote about it here). In a unanimous opinion, the court held that the plaintiff failed to make a prima facie case that the Friends' writers sexual banter created a hostile work environment on the basis of sex. The court's reasoning is summed up in the following sentence: "While [California law] prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely offends."

Having ruled against the plaintiff on statutory grounds, the court did not reach the First Amendment issues this case presented, but Justice Chin wrote a concurring opinion stating that the plaintiff's claim is barred by the First Amendment. Chin's opinion cites Eugene's work very favorably.

The main opinion is significant for two reasons. First, the California Supreme Court has for decades been on the forefront of promoting incredibly expansive interpretations of antidiscrimination laws, creating broad conflict with First Amendment rights and other civil liberties. For example, the California Supreme Court held that a local Boys' Club was a "business establishment" within the meaning of California law and therefore had to admit girls to membership. More recently, the court in the Aguilar case, in a 4-3 vote (two of the dissenters, Stanley Mosk and Janice Brown, have since left the court), upheld a very broad prior restraint on discriminatory speech in the workplace. That this court, in particular, was willing to narrowly interpret hostile environment law, and unanimously (!) is a huge victory.

Second, scholars such as Eugene and me who worry about the civil liberties implications of overly broad antidiscrimination law have tried, in our writings, to emphasize that there is not and should not be a right to be free from offense. The recent Mohammed cartoons controversy has illustrated this point as starkly as one could hope. The California opinion is directly based on the distinction between merely offensive sexual banter that some individuals may find distressing, and truly harassing conduct directed at an individual.

So, while it would have been great to have had the court's majority endorse Justice Chin's (and, by extension, Eugene's) reasoning, it's still a wonderful victory for freedom of expression.

Hans Bader (mail):
This brings the California definition of sexual harassment back into harmony with the definition embraced by moderate and conservative federal appeals courts, as advocated by the Individual Rights Foundation as amicus.

It defines harassment more narrowly than the Massachusetts Supreme Court, which rejects a requirement that harassment complainants show that sexual harassment occur "because of sex" for the plaintiff to recover.

It also restricts the reach of prior bad California Court of Appeal decisions on sexual harassment like Mogilefsky v. Superior Court.

Censorial sexual harassment plaintiffs seeking to sue based on comments they overhear in the workplace will now have a much harder time getting a jackpot through the litigation lottery.
4.20.2006 2:50pm
Nobody Special:
Looking at the amicus list, it also looks like yet another ignominous defeat for the "pile of law professors" litigation strategy.
4.20.2006 2:56pm
Unless we all agree on what constitutes "merely offensive sexual banter that some individuals may find distressing," and what constitutes "truly harassing conduct," I don't see how this gets us anywhere. These are all just characterizations, after all, meaningless without reference to the facts of a particular case.

Was there really any chance that the court would literally hold that "conduct that merely offends" is actionable? Of course not. "Conduct that merely offends" is the kind of descriptor you apply AFTER you've made a fact-based determination that the conduct does not rise to an actionable level.
4.20.2006 3:14pm
Houston Lawyer:
While I applaud the ruling, I believe Steve is right. There is no bright line between "merely offensive" and "harassing". Hence, the whole "hostile work environment" theory should be dropped entirely. Every conceivable offense doesn't deserve a cause of action.
4.20.2006 3:39pm
Lowell R. (mail):
Coincidentally relevant note: The Ninth Circuit ruled against Chase "Homosexuality is Shameful" Harper. Opinion here; Kozinski dissent (who else?) here.
4.20.2006 3:46pm
4.20.2006 4:03pm
Hans Bader (mail):
The Ninth Circuit's partisan, 2-to-1, ruling today in Harper v. Poway that a school can ban the passive wearing of a single offensive T-shirt because it violates the "rights" of gay students sets a terrible precedent for free speech, opening the door to depictions of Mohammed being banned under the theory that they violate the "rights" of Muslim students.

It squarely conflicts with the Third Circuit's unanimous, bipartisan ruling in Saxe v. State College Area School District (3d Cir. 2001) by then-judge Alito that even anti-gay speech is protected and that no one has a "right" not to be offended, thus requiring the invalidation of a sweeping anti-harassment code on First Amendment grounds.

Judge Kozinski is right to dissent from this awful decision. No one has a "right" not to be offended.

Ironically, Judge Reinhardt, who wrote the censorial decision in Harper, is married to longtime Southern California ACLU leader Ramona Ripston. Then again, maybe it's not an irony, given the California ACLU chapters' support for campus and workplace speech codes.

Judge Reinhardt's suggestion that California state harassment law reinforces the school's need to censor the T-shirt is especially ridiculous in light of today's decision in Lyle v. Warner Brothers, in which the California Supreme Court clarified the limited reach of California's harassment law, and Justice Chin pointed out in concurrence that harassment rules are subject to First Amendment limits.
4.20.2006 4:05pm
Ubertrout (mail) (www):
Lowell, I especially enjoyed Judge Kozinski's use of "zillions" in the second footnote of his dissent.
4.20.2006 4:05pm
eddie (mail):
"That this court, in particular, was willing to narrowly interpret hostile environment law, and unanimously (!) is a huge victory."

The likely explanation is that the justices are Friends fans.
4.20.2006 4:13pm
JosephSlater (mail):
One key passage in the decision is this:

Here, the record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA.

This doesn't seem to me to be some huge departure from existing law.
4.20.2006 4:49pm
Bpbatista (mail):
One quick thought as to why the usually very liberal Cal. Supreme Court ruled this way -- look at whose ox is being gored here. As Justice Chin says, the Writers' Guild, etc., amicous brief is a virtual "who's who" of the entertainment industry -- which is overwhelmingly Liberal. I wonder if a different result might have been reached if the defendant was, say, Rush Limbaugh or Fox News.
4.20.2006 4:58pm
Nobody Special:
The "usually very liberal Cal Supreme Court"?!?

Until recently, the California Supreme Court was a shade or two to the right of the United States Supreme Court, and had been that way ever since Rose Bird and company got booted in the 1980s.

It probably is not so anymore, given the replacement of Janice Rogers Brown with Carol Corrigan and the replacement of O'Connor with Alito, however.
4.20.2006 5:22pm
Fishbane (mail):
While I'm not a huge Kozinski fan in general, I loved this, from footnote 8:

Then there is the question of whether we should tolerate intolerance, a question as imponderable as a Möbius strip.

Plus, he worked in a reference to Buffy the Vampire Slayer. Whatever else I may say about him, the man can write.
4.20.2006 6:07pm
I'll admit, crediting references to a Mobius strip and Buffy the Vampire Slayer as evidence of good writing seems a little extraordinary to me....

....Not unlike lauding free speech principles particularly for their application contrary to antidiscrimination norms.

Both seem rather... selective.
4.20.2006 6:15pm
Roach (mail) (www):
There is a massive incommensurability between the principles of most antidiscrimination laws and most first amendment principles. Under the first amendment, one can offend, voluntarily associate and disassociate from others, and generally behave freely (if vulgarly). Under antidiscrimination laws, one cannot offend, one is forced to associate, and tangential "discriminations" such as disparate impacts in work standards and so-called hostile work environments can be policed.

The defect of hostile work environment jurisprudence is the notion that what offends women is "discrimination." Maybe it's just offensive to all decent people, but especially to women. An equal opportunity offender is not discriminating, clearly, he's simply being rude or boorish to all of his peers. The expansive hostile work environment stuff never really reconciled itself with the text of the Civil Rights Laws at issue.

This is characteristic of so much left-liberal jurisprudence. Laws are expressions of abstract ideological goals, in this view, and those abstract ideological principles should be applied directly to cases without regard to the limiting text of the statutes themselves. So, we get things like "separation of Church and State" without regard to how "establishment" is distinct from lesser forms of religious support. Likewise, we get things like Caroline Products and Roemer b/c for liberals the Constitution is an embodiment of liberal principles, and those principles prohibit things like runaway capitalism, limitations on social programs, and any limits on sexual behavior.
4.20.2006 6:39pm

Did you mean to use "equal opportunity offender" in it's technial legal sense of the word? See Holman v. Indiana, 211 F.3d 399. Or did you just mean that "offensive" words ( "___" or "____" or "___") are generally offensive, and no more or less so because one identifies with the group at issue?
4.20.2006 6:48pm
After reading the case, I don't view this as a significant victory for anyone other than Warner Bros.

The court appeared to be very distrusting of Lyle's factual claims, making careful note of exactly how many times the worst profanities were uttered, for example. Plus, the conclusion specifically disclaimed any categorical rule against undirected hostile work environment harassment, which (along with First Amendment creative speech) was the key to the case. Several times in his overly lengthy recitation of FEHA/Title VII interpretation, Justice Baxter noted that undirected harassing speech/conduct may in fact be actionable, if sufficiently egregious.

My legal realist side believes that, seeing the bad facts and the improbability of the plaintiff prevailing on remand, the court merely punted on the First Amendment issue.
4.20.2006 8:48pm
Tom R:
I wonder if the Amici briefs get logged as "the Amici Amici..."

But, I mean, sexual banter whil screenwriting for Friends? Doesn't Calif law have volenti non fit injuria?
4.21.2006 5:39pm