That’s what this letter from the Caucus appears to say. In part, the letter just condemns the show; I can’t speak to that, since I haven’t watched the show. But the letter also argues that the use of the terms “is a breach of Viacom’s Global Business Practices Statement requiring a harassment-free workplace environment,” and that “Viacom has a legal and ethical responsibility to uphold policies intended to maintain a harassment-free work place” — a pretty clear allusion, it seems to me, to legal prohibitions on hostile environment workpalce harassment.
I’ve argued before that hostile work environment harassment law may sometimes violate the First Amendment (at least when applied to speech other than threats, fighting words, and other First Amendment exception, as well as some other one-to-one speech to unwilling listeners). Fortunately, the California Supreme Court resisted the application of harassment law to the making of a TV show, in Lyle v. Warner Brothers. Lyle involved comments made during the writing process, but the same logic should apply at least as forcefully to speech actually broadcast to the public. But that decision was based on a narrow reading of California state workplace harassment law; federal law has been read somewhat more broadly, and New Jersey law is in some respects broader still. (Jersey Shore was shot in New Jersey, so New Jersey state hostile work environment law would apply there, as would the separate federal law.)
I think that ultimately the First Amendment defense to certain hostile work environment claims should and will prevail, at least in “communicative workplace” cases such as Lyle and a hypothetical case brought by a cameraman, cast member, or whoever else who was offended by any “offensive, inaccurate portrayal of Italian Americans” or the use of “[p]ejorative words ‘guido’ and ‘guidette.’” (I think it should also be accepted in what are generally seen as non-communicative workplaces, for instance when people sue based on anti-Islam, anti-Muslim, and anti-Arab department-wide e-mails sent by a police department counter-terrorism advisor, but I’m not nearly as confident that it will be accepted there.) But until that happens, the threat of liability, and of massive litigation expenses remains. And it strikes me as very bad when government officials try to threaten speakers such as MTV with the risk of such legal liability, based on the supposedly ideologically offensive content of the material that the speakers distribute.
Disclosure: I was a consultant for Warner Brothers’ lawyers in Lyle, but my views on the subject long predate my work on the case. (My first article on the matter was published in 1992.)
ShelbyC says:
“Fortunately, the California Supreme Court resisted the application of harassment law to the making of a TV show, in Lyle v. Warner Brothers.”
Didn’t they simply find that the statements at issue didn’t violate California harassment law? The fact that Friends was a TV show and not another employment situation had nothing to do with their finding, correct?
December 28, 2009, 1:33 pmCrunchy Frog says:
Congrats to the New Jersey pols – not only do they get to drive all TV and film production out of the state, but they get to be the butt of criticism in countless TV shows and films, from vindictive show writers. Good job all around.
The lesson, as always – never pick a fight with someone who has a bigger microphone than you.
December 28, 2009, 1:45 pmDavid Nieporent says:
Just once I’d like to see someone with the guts to tell these sorts of grandstanding pols:
Dear Politicians,
With regard to your letter of X date, if you have nothing better to do with your time, we suggest you resign from your positions and give your salaries back to taxpayers, as you aren’t earning them. In the meantime, we refer you to the First Amendment and tell you to shove it up your collective [rear ends].
Sincerely,
Producers.
P.S. Thanks for the free publicity.
December 28, 2009, 2:16 pmAJK says:
I’m curious how a letter with that many typos gets sent out as an official statement. Is it really that hard to have one reasonably observant person read the letter over before they send it out?
December 28, 2009, 2:19 pmptt says:
Wouldn’t it have been more effective for the Legislature to just make the show’s producers an offer they couldn’t refuse?
December 28, 2009, 2:28 pmRichard Nieporent says:
So which Viacom executive will get a horse’s head in his bed?
December 28, 2009, 2:28 pmA.S. says:
As a New Jersey native who spent many drunken high school nights in Seaside Heights, I’ve got to say that the idea set forth in the linked letter that the show does not represent a “naturally occuring subculture in New Jersey” is ridiculous. Of course it isn’t completely accurate – it’s reality TV, not a Ken Burns documentary (which themselves take certain liberties, given the restrictions imposed by time and narrative). But morons like these kids were not uncommon in Seaside Heights when I was there (though, admittedly, that was 20 years ago).
December 28, 2009, 2:51 pmPeteP says:
I think all WWII movies and documentaries should be banned also. They portray Germans in a negative stereotype that might be offensive to some people.
Also, they should not be allowed to arrest any more black people on ‘COPS’.
As to ‘The Sopranos’ ….. malone !!! Gotta go !
December 28, 2009, 2:55 pmA. Criminal says:
The letter: “We find the content to be an offensive, inaccurate portrayal of Italian Americans and contrary to New Jersey’s efforts to reduce hate and bias-related crime.”
Not to worry! Italians are white and therefore cannot be victims of “hate and bias-related crime.” It’s a form of government-issued magic.
December 28, 2009, 3:07 pmEugene Volokh says:
ShelbyC: The majority opinion is complicated, but it does rely at least in part on the nature of the workplace; consider, for instance, the key passage describing the facts as part of “considering the totality of the circumstances, especially the nature of the writers’ work,” or the passage noting that “the record here reflects a workplace where comedy writers were paid to create scripts highlighting adult-themed sexual humor and jokes, and where members of both sexes contributed and were exposed to the creative process spawning such humor and jokes. In this context, the defendant writers’ nondirected sexual antics and sexual talk did not contribute to an environment in which women and men were treated disparately.” The precedential scope of Lyle does indeed extend beyond just TV programs; but it is most clearly and directly applicable to communicative workplaces.
December 28, 2009, 3:18 pmEugene Volokh says:
A. Criminal: The Supreme Court’s leading hate crime case, Wisconsin v. Mitchell, involved a hate crime by blacks against whites; there have been quite a few other cases that likewise involved white victims, especially ones selected as targets because they were Jewish. I can’t speak to the degree to which anti-Italian, anti-Jewish, or anti-white hate crimes are prosecuted, compared to the degree to which (say) anti-black hate crimes are prosecuted; I’m not sure there has been reliable research on this. But it seems pretty clear that hate crimes with white victims are indeed regularly prosecuted.
December 28, 2009, 3:24 pmCJColucci says:
The NJ Italian-American Caucus is a bunch of guidos and guidettes. And I get to say this, for obvious reasons.
December 28, 2009, 3:56 pmptt says:
Uh… perhaps “guida” or “guidina” or “guidetta”, but “guidette”!?!?!
December 28, 2009, 4:12 pmCJColucci says:
Their word choice, not mine. But what do you expect from a bunch of guidos?
December 28, 2009, 4:24 pmBill Poser says:
Italian-Americans seem to be strangely hyper-sensitive given their prominence in US life and the near total absence of hate crimes or even significant discrimination against them. Remember the bizarre claim by Ken Ciongoli of the national organization that “Scalito” was an anti-Italian slur?
December 28, 2009, 5:07 pmptt says:
Sorry, bad timing of posts… I wasn’t commenting on yours.
December 28, 2009, 5:36 pmCJColucci says:
No offense taken, even if you had been. It would have been a fair comment.
December 28, 2009, 5:38 pmTweets that mention The Volokh Conspiracy » Blog Archive » New Jersey Legislature’s Italian American Caucus Argues That the Making of Jersey Shore May Violate Hostile Work Environment Harassment Law? -- Topsy.com says:
[...] This post was mentioned on Twitter by Steven Suchar, Eugene Volokh. Eugene Volokh said: New Jersey Legislature’s Italian American Caucus Argues That the Making of Jersey Shore May Violate Hostile Wor.. http://bit.ly/6yblRK [...]
December 28, 2009, 7:00 pmI-Tie says:
I think it would be interesting to hypothesize about the response (both on this blog and elsewhere) if the cast of this show were Jewish rather than Italian. I am exceptionally hard to offend by any standard, but I think this show has almost zero redeeming value.
On the other hand, I oppose all forms of censorship (at least 99.9999999999% of the time). I personally will simply avoid watching this show.
December 29, 2009, 3:23 amGuy says:
Even without explicit reference in the opinion, “resistance” could still be hypothesized in light of the fairly apparent avoidance concerns.
December 29, 2009, 4:39 amLarryA says:
Yeah, it’s not like the entertainment industry treats them like gun-owners or anything.
So it’s average for reality TV?
December 29, 2009, 12:33 pmMedia Analysis: Jersey Shore « Reporting 1 Blog says:
[...] Guido act and accent just for television. Domino’s Pizza removed their ads from the show and the New Jersey Italian American Caucus thought the show should be cancelled. The Guido subculture is becoming much more popular now [...]
January 25, 2010, 7:05 pmKarine Hiberno says:
I love Italian food! I think there is no better place to stay.. ppl are so relaxed and handsome!! Thanks for this lovely piece of info! :)
May 27, 2010, 4:21 pm