Friday, March 13, 2009
Kimberly D. Phillips, Texas Tech University School of Law, has published "My Body is a Sacred 'Garment': Does the First Amendment Protect Clothing Designers Who Work Naked?" Here is the abstract.
A Warner Brothers employee, Ms. Lyle, sued the writers of the TV program, Friends, for sexual harassment because the writers used sexually explicit coarse and vulgar language during their script writing sessions for the show. In the Supreme Court of California's majority opinion regarding the suit (Lyle v. Warners Brothers Television Productions, 132 P.3d 211 (2006)), the majority held, among other things, that the plaintiff's sexual harassment claims were not supported by the facts because the discussions of the Friends writers were not "aimed at Lyle or other female employees" or "severe or pervasive" enough to constitute sexual harassment.
Further, the court concluded that the Friends writers did not treat women differently from men; both sexes were on the receiving end of the writer's crude jokes, comments, drawings, and behavior. Basically, the court considered the sexual conduct as a necessary part of the Friends writers' job; because the Friends show was a sexually explicit TV program, writing for the show was necessarily going to involve the writers discussing sexual words and conduct, including their own sexual conduct.
While the majority declined to consider whether the writers' crass words and conduct was protected by the First Amendment right of free speech; the concurring opinion tackled this issue with vigor, stating the case was more about free speech rights than sexual harassment. The judge in the concurring opinion opined that creative speech, used to create an employer's constitutionally protected work product (i.e., books, movies, television programs), is protected under the First Amendment, and can never create a hostile work environment unless the speech was directed at the plaintiff. If the speech was directed "at or about" the plaintiff, then the offending speech is not protected as creative expression under the First Amendment, and the court could then analyze whether such offending speech was sexually harassing speech.
In a more recent case, Mary Nelson, among several other female employees, filed suit against, Dov Charney, the founder of the avant guard clothing manufacturing company, American Apparel, claiming that he sexual harassed her during her employment with his company. Mr. Charney and his attorney subsequently argued, during media interviews, that his vulgar and coarse language (as well as his meetings with the plaintiff in his underwear) would be protected by the First Amendment as creative speech used to create a constitutionally protected work product (fashion instead of TV scripts) via the Lyle v. Warner Brothers Television Productions case.
Download the paper from SSRN here.