Commentary

Hostile Work Environment at “Friends”?

This article was published in the Orange County Register, August 13, 2004.

Just when you thought you’d finally heard the last of Ross and Rachel, Friends is in the news again. But this time it’s not the actors who are stealing headlines. It’s the scribes behind all those sarcastic Chandler jokes who are in the limelight for a change. And they are in trouble.

Former Friends writers’ assistant Amaani Lyle has sued Warner Brothers and three Friends writers for sexual harassment. She claims that the writers created a “hostile work environment” by engaging in sex-related comments and bawdy jokes during writers’ meetings. It may sound far-fetched—Lyle herself was never a target of any of the comments—but a California state appellate court has already allowed Lyle’s claim to proceed.

Now it’s up to the California Supreme Court to decide if the sex-related musings of a crew of kibbitzing sitcom writers are a form of constitutionally protected expression or punishable harassment. Both common sense and the First Amendment suggest the former approach.

If any sex-related speech at a Hollywood writers’ meeting that happens to offend someone can be deemed illegal harassment, then America is in for some mighty dull television. One can only imagine how pedestrian “Sex in the City” would have been if episodes of the series had been hatched during story meetings with this sort of “hostile work environment” threat in mind: Carrie meets charming single man, and they share a coffee with their chaperone; Samantha holds hands with two different men in one night.

One of the joys of the United States in general, and of artistic centers like Hollywood in particular, is the incredibly eclectic mix of words, images, and music that flow freely from creator to audience at dizzying speed. Virtually everyone can find a work that speaks to him, whether it be a religious text, a salacious soap opera, a silly sex farce, a wholesome children’s story acted out by plush animals, or an episode of Friends. To take away any of these myriad options, as the Lyle decision threatens to do, would be to destroy more than individual speech rights. It would also destroy a large part of American culture.

The very concept of brainstorming, which is based on the spontaneous contribution of ideas and has provided the first spark of inspiration for many great (and not-so-great) works, would be seriously compromised in any workplace, classroom, or studio if everyone had to self-censor for sexual content before throwing out a thought. It doesn’t seem like much of an exaggeration to predict that the drying up of new, edgy, and provocative art would not be far behind.

Moreover, the Lyle case cannot be reconciled with the First Amendment. Surely, if the Constitution protects the speech rights of for-profit pornographic website operators, as the United States Supreme Court has recently reminded us it does, it also must protect the casual, if not always classy, discussions of creators at work. Otherwise, we risk sacrificing productive banter, discussion, and debate in deference to whatever subjective notions of propriety and good taste the most sensitive person in earshot may have.

More generally, if the Lyle opinion is allowed to stand, any Californian whose job involves dealing with controversial matters that raise issues potentially offensive to some people — AIDS education, abortion counseling (pro or con), civil rights and affirmative action and much more—-will be at risk of a harassment lawsuit. The only out provided for defendants by the California Court of Appeals is to prove that any “offensive” comments are made “within ‘the scope of necessary job performance,’” a determination that, as UCLA law professor Eugene Volokh notes, will necessarily involve vague and subjective perceptions of what speech is “necessary” to any particular job.

If the Justices of the California Supreme Court appreciate what makes its state, and its country, special and worthy, they will step in and correct the lower court’s mistake. Real friends don’t let friends censor Friends.

David E. Bernstein, professor at George Mason University School of Law, is the author of You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003), to be released in a paperback in October 2004.