CA High Court Sides With 'Friends' Writers

Script writers for both television sitcoms and dramas have been given the license to be as raunchy as they like during the creative process ' as long as their raw talk doesn't single out specific people as the butt of the jokes. In a case that put the entertainment and publishing industries on edge ' and had some Hollywood honchos speaking out ' the California Supreme Court unanimously ruled that sexually coarse and vulgar language is often a necessary part of the creative process when producing a hit TV show. Lyle v. Warner Brothers Television Productions, S125171.

The case involved alleged harassment by writers for the award-winning sitcom 'Friends,' and the decision, authored by Justice Marvin Baxter, held that crass brainstorming ' complete with foul words and lewd sexual simulations ' crosses the line only if it targets a person because of his or her sex or is severe enough to create a hostile work environment.

Neither behavior occurred in Lyle, Baxter held. '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,' he wrote. 'Moreover,' he continued, 'there was nothing to suggest the defendants engaged in this particular behavior to make plaintiff uncomfortable or self-conscious, or to intimidate, ridicule or insult her.'

Adam Levin, a partner in Los Angeles' Mitchell Silberberg & Knupp who represented the writers and Warner Brothers, credits the court with achieving 'an appropriate balance between civil rights and civil liberties.' 'Now,' he says, 'my clients can continue doing what they do best ' writing and creating hit television series.'

In a separate concurring opinion, however, Justice Ming Chin argued that the court should have gone further and ruled that the writers' words and actions were also protected as free speech. 'Creativity is, by its nature, creative. It is unpredictable,' he wrote. 'Much that is not obvious can be necessary to the creative process. Accordingly, courts may not constitutionally ask whether challenged speech was necessary for its intended purpose.' Suits, such as that resolved in Lyle, he continued, 'present a clear and present danger to fundamental free speech rights.'

Three male writers for 'Friends' wound up in court after Amaani Lyle, a former writer's assistant, sued them and Warner Brothers for allegedly subjecting her to a hostile work environment during her 4 months on staff in 1999. Lyle, now a senior airman writing press releases for the Air Force in Germany, claimed constant banter about the writers' sexual activities and proclivities ' along with constant talk about such topics as anal and oral sex ' went too far. One writer kept a coloring book in which he drew breasts and vaginas on female cheerleaders, Lyle said, while all three made vile sexual remarks about 'Friends' actresses Jennifer Aniston and Courteney Cox Arquette.

The L.A. County Superior Court had granted summary judgment for the writers and other defendants, awarding them more than $21,000 in costs and nearly $416,000 in attorney fees. But in 2004, L.A.'s 2nd District Court of Appeal reversed, holding that Lyle had a right to have her hostile work environment claim heard by a jury.

The state supreme court ruling went far in defending the writers, saying Lyle needed to show that the crude language and acts were directed toward her and other women, and that there had to be a 'concerted pattern' of mistreatment. 'That the writers commonly engaged in discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas for this particular show was neither surprising nor unreasonable from a creative standpoint,' Baxter wrote.

'Indeed,' he added, 'plaintiff testified that, when told during her interview for the 'Friends' position that 'the humor could get a little lowbrow in the writers' room,' she responded she would have no problem because previously she had worked around writers and knew what to expect.'

Baxter also said, however, that language similar to what was used by the 'Friends' writers could be construed as harassment in different situations. 'We simply recognize,' he wrote, 'that, like Title VII, the [Fair Employment and Housing Act] is not a 'civility code' and [is] not designed to rid the workplace of vulgarity.'

In his concurrence, Chin quoted extensively from briefs filed by amicus curiae from various writers' guilds and from television bigwigs ' including Steven Bochco, co-creator of 'Hill Street Blues,' 'L.A. Law' and 'NYPD Blue,' and Norman Lear, creator of 'All in the Family.' In fact, Chin said he couldn't imagine 'All in the Family,' which dealt with mostly racial bias, having achieved success if writers feared lawsuits.

Chin also recognized that the writers with 'Friends' went to extremes. 'They pushed the limits ' hard,' Chin wrote. 'Some of what they did might be incomprehensible to people unfamiliar with the creative process. But that is what creative people sometimes have to do.'

Los Angeles lawyer Scott Cummings, who argued Lyle's case, couldn't be reached for comment. But Jeffrey Winikow, a solo practitioner in Los Angeles who argued as an amicus for the California Employment Lawyers Association, downplayed the ruling, saying it wasn't the 'broad sweeping endorsement' the entertainment industry sought. 'The decision itself is so factually specific,' he said, 'that I don't think it's going to have much practical effect either inside the entertainment industry or in employment cases in general.'

But Kelli Sager, a partner in Davis Wright Tremaine's San Francisco office who represented several newspaper corporations as an amicus, hailed the ruling. And she highlighted Chin's concurrence, which 'outlined the importance of protecting the creative process and the high hurdles plaintiffs will have to meet in any case that involves the exercise of free speech.'

Script writers for both television sitcoms and dramas have been given the license to be as raunchy as they like during the creative process ' as long as their raw talk doesn't single out specific people as the butt of the jokes. In a case that put the entertainment and publishing industries on edge ' and had some Hollywood honchos speaking out ' the California Supreme Court unanimously ruled that sexually coarse and vulgar language is often a necessary part of the creative process when producing a hit TV show. Lyle v. Warner Brothers Television Productions, S125171.

The case involved alleged harassment by writers for the award-winning sitcom 'Friends,' and the decision, authored by Justice Marvin Baxter, held that crass brainstorming ' complete with foul words and lewd sexual simulations ' crosses the line only if it targets a person because of his or her sex or is severe enough to create a hostile work environment.

Neither behavior occurred in Lyle, Baxter held. '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,' he wrote. 'Moreover,' he continued, 'there was nothing to suggest the defendants engaged in this particular behavior to make plaintiff uncomfortable or self-conscious, or to intimidate, ridicule or insult her.'

Adam Levin, a partner in Los Angeles' Mitchell Silberberg & Knupp who represented the writers and Warner Brothers, credits the court with achieving 'an appropriate balance between civil rights and civil liberties.' 'Now,' he says, 'my clients can continue doing what they do best ' writing and creating hit television series.'

In a separate concurring opinion, however, Justice Ming Chin argued that the court should have gone further and ruled that the writers' words and actions were also protected as free speech. 'Creativity is, by its nature, creative. It is unpredictable,' he wrote. 'Much that is not obvious can be necessary to the creative process. Accordingly, courts may not constitutionally ask whether challenged speech was necessary for its intended purpose.' Suits, such as that resolved in Lyle, he continued, 'present a clear and present danger to fundamental free speech rights.'

Three male writers for 'Friends' wound up in court after Amaani Lyle, a former writer's assistant, sued them and Warner Brothers for allegedly subjecting her to a hostile work environment during her 4 months on staff in 1999. Lyle, now a senior airman writing press releases for the Air Force in Germany, claimed constant banter about the writers' sexual activities and proclivities ' along with constant talk about such topics as anal and oral sex ' went too far. One writer kept a coloring book in which he drew breasts and vaginas on female cheerleaders, Lyle said, while all three made vile sexual remarks about 'Friends' actresses Jennifer Aniston and Courteney Cox Arquette.

The L.A. County Superior Court had granted summary judgment for the writers and other defendants, awarding them more than $21,000 in costs and nearly $416,000 in attorney fees. But in 2004, L.A.'s 2nd District Court of Appeal reversed, holding that Lyle had a right to have her hostile work environment claim heard by a jury.

The state supreme court ruling went far in defending the writers, saying Lyle needed to show that the crude language and acts were directed toward her and other women, and that there had to be a 'concerted pattern' of mistreatment. 'That the writers commonly engaged in discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas for this particular show was neither surprising nor unreasonable from a creative standpoint,' Baxter wrote.

'Indeed,' he added, 'plaintiff testified that, when told during her interview for the 'Friends' position that 'the humor could get a little lowbrow in the writers' room,' she responded she would have no problem because previously she had worked around writers and knew what to expect.'

Baxter also said, however, that language similar to what was used by the 'Friends' writers could be construed as harassment in different situations. 'We simply recognize,' he wrote, 'that, like Title VII, the [Fair Employment and Housing Act] is not a 'civility code' and [is] not designed to rid the workplace of vulgarity.'

In his concurrence, Chin quoted extensively from briefs filed by amicus curiae from various writers' guilds and from television bigwigs ' including Steven Bochco, co-creator of 'Hill Street Blues,' 'L.A. Law' and 'NYPD Blue,' and Norman Lear, creator of 'All in the Family.' In fact, Chin said he couldn't imagine 'All in the Family,' which dealt with mostly racial bias, having achieved success if writers feared lawsuits.

Chin also recognized that the writers with 'Friends' went to extremes. 'They pushed the limits ' hard,' Chin wrote. 'Some of what they did might be incomprehensible to people unfamiliar with the creative process. But that is what creative people sometimes have to do.'

Los Angeles lawyer Scott Cummings, who argued Lyle's case, couldn't be reached for comment. But Jeffrey Winikow, a solo practitioner in Los Angeles who argued as an amicus for the California Employment Lawyers Association, downplayed the ruling, saying it wasn't the 'broad sweeping endorsement' the entertainment industry sought. 'The decision itself is so factually specific,' he said, 'that I don't think it's going to have much practical effect either inside the entertainment industry or in employment cases in general.'

But Kelli Sager, a partner in Davis Wright Tremaine's San Francisco office who represented several newspaper corporations as an amicus, hailed the ruling. And she highlighted Chin's concurrence, which 'outlined the importance of protecting the creative process and the high hurdles plaintiffs will have to meet in any case that involves the exercise of free speech.'