The Volokh Conspiracy - 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.

	[David Bernstein, April 20, 2006 at 1:39pm] Trackbacks 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.