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Vulgarity in creative process protected by First Amendment

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NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Newsgathering

NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Newsgathering   ·   April 21, 2006

Vulgarity in creative process protected by First Amendment

  • Creativity — from writing adult comedy to reporting the news — is constitutionally protected even if it includes sexually coarse and raunchy language, the state high court ruled Thursday in a case involving the popular TV show “Friends.”

April 21, 2006  ·   The First Amendment protects the creative process, which can include sexual repartee, the California Supreme Court ruled Thursday in dismissing a sexual harassment suit brought by a former writers’ assistant for the TV sitcom “Friends.”

Though the unanimous ruling centered on Amaani Lyle’s sexual harassment claims against Warner Brothers Television Productions, a concurring opinion said “the case has very little to do with sexual harassment and very much to do with core First Amendment free speech rights.”

Lyle contended that the coarse and vulgar language that occurred during writers’ meetings during her four months’ of employment equated to sexual harassment against women. “Friends,” which aired for 10 seasons, centered around the lives of six young friends.

Justice Marvin R. Baxter, writing for the court, rejected Lyle’s claim, noting that the “writers’ nondirected sexual antics and sexual talk did not contribute to an environment in which women and men were treated disparately.”

In the concurrence, Justice Ming W. Chin echoed many of the themes presented in a friend-of-the-court brief which argued that ruling against Warner Brothers would limit First Amendment protection for speech in newsrooms, writers’ rooms and other similar workplaces.

“[T]he constitutional guarantees of freedom of expression apply with equal force to the publications whether it be a news report or an entertainment feature,” Chin wrote, quoting the court in 2004’s Gates v. Discovery Communications.

Lawsuits such as Lyle’s “directed at restricting the creative process in the workplace whose very business is speech related, present a clear and present danger to fundamental free speech rights,” Chin wrote.

The California Newspaper Publishers Association and other media groups, including The Reporters Committee for Freedom of the Press, filed the friend-of-the-court brief, after the Court of Appeal ruled partially in Lyle’s favor.

The brief cited several high-profile news stories involving sensitive sexual topics, from coverage of Iraqi prisoner torture at Abu Ghraib to an ABC News broadcast about practices in the pornography industry relating to spread of HIV to coverage of former President Clinton’s impeachment and whether oral copulation is “sex.”

Chin wrote that the First Amendment does not protect all sexually harassing speech.

“Just as criminal threats are beyond protection, so too may the state proscribe sexual harassment. But the proscription must be carefully tailored to avoid infringing on the First Amendment free speech rights in the creative process,” he wrote.

Chin embraced a general test balancing free speech rights and concerns over sexual harassment as proposed by the media groups in their court filing.

“Where, as here, an employer’s product is protected by the First Amendment — whether it be a television program, a newspaper, a book, or any other similar work — the challenged speech should not be actionable if the court finds the speech arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff.”

Warner Brothers won at the trial court level, but the Court of Appeal reversed in part, concluding that there were triable issues of fact for portions of Lyle’s claim.

(Lyle v. Warner Bros. Television Productions; Amici counsel: Kelli L. Sager, Davis Wright Tremaine, Los Angeles)KM

© 2006 The Reporters Committee for Freedom of the Press   ·   Return to: RCFP Home; News Page