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Jewish World Review Oct. 6, 2004 / 21 Tishrei, 5765

Jonathan Turley

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Consumer Reports

‘Friends’ lawsuit could set dangerous precedent — and that's no joke | After 10 seasons and six Emmys, the television sitcom "Friends" attained the status of a social icon. According to a recent lawsuit, however, some of the same lines and scenes that made it a highly rated comedy may make for a highly costly lawsuit.

Amaani Lyle is suing the makers of "Friends" for harassment based on the "hostile work environment" created by its writers. "Friends" used a boiler-room process to develop scripts. Writers threw out lines and ideas, then harvested what was usable from reams of useless banter. It was Lyle's job to type these thoughts and jokes into a computer so the writers could later search for a comedy diamond in the conversational rough.

Lyle alleged gender and racial discrimination (she's black) and cited the hostile work environment created by the barrage of sexual, racial and religious references common to comedy boiler rooms. A state appeals court has rejected Lyle's claims of discrimination but held that she had made a viable hostile-workplace argument. The case, now before the California Supreme Court, could have a sweeping effect on television writing and other settings where potentially offensive topics and language are the rule.

The depositions in the Lyle case make it clear that sitcoms are a little like laws and sausage: You may not want to watch — or hear — them being made. What shows up on-screen often begins as a crude anecdote that is progressively watered down for television. One "Friends" writer recounted how his tailor had touched his private parts while measuring his inseam — a scene later played out in an episode. Another writer related how he had once engaged in oral sex with a guy in a wig that he thought was a woman. On-screen, a character kissed a presumed woman in a dark bar and later discovered the truth.

The court of appeals agreed that being subjected to such talk could constitute a hostile workplace even when there was no intent to discriminate or harass. It noted that California courts had ruled that a person was guilty of sexual harassment if the conduct "sufficiently offends, humiliates, distresses or intrudes upon" another individual "as to disrupt [a person's] emotional tranquillity in the workplace."

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Now, there has always been a contradiction between our public laws and private tastes. While the public supports equal opportunity laws, it also favors sitcoms with characters who routinely make taboo references to race, sex, gender and religion. Indeed, most sitcoms could be used as case studies of prohibited speech and conduct. In real life, Sam the bartender of "Cheers" would be the Equal Employment Opportunity Commission equivalent of a war criminal.

The Lyle lawsuit does not challenge the use of sexual, racial or bawdy comments on "Friends"; instead, it seems to require that scripts be created through a type of Immaculate Conception. Yet there may be jobs in which workers should anticipate (and have to tolerate) potentially offensive speech.

The "Friends" case should prompt California courts to adopt a more practical understanding of what constitutes a hostile workplace, as long as the "hostility" isn't directed toward an individual. There's an obvious difference between people spewing out sex-laden jokes in a comedy shop rather than an accountant's office. Consider a secretary at an adult film company objecting to the continual discussion of sex acts. Or an office manager for a white supremacist group suing over derogatory references to other races. If free speech is to be protected, weight has to be given to having reasonable expectations when accepting such jobs.

Schools are another environment that demands freedom of expression. There has been a growing crackdown on free speech through speech codes created to prevent hostile environments. Such codes have been used so broadly that some schools treat speech like smoking, as a potentially hazardous element that must be controlled. At Texas Tech University, educators created a 20-foot "free-speech gazebo" for 28,000 students. Schools often label speech as hostile when it is merely unpopular. Some have barred anti-affirmative action bake sales by conservative students while allowing pay equity bake sales for feminists — in both cases, different classes of people were charged different amounts for cookies.

Whether it's in sitcoms or at universities (or even in the porn industry), chilling speech isn't the way to prevent discrimination and harassment. It won't make for a better society, just bad jokes and worse education. For any self-respecting TV writer, even awards wouldn't compensate for an EEOC-approved process and sanitized scripts. After all, with "Friends" like that, who needs Emmys?

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JWR contributor Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Click here to visit his website. Comment by clicking here.


© 2004, Jonathan Turley