Legal Commentary

New Jersey Legislature?s Italian American Caucus Argues That the Making of Jersey Shore May Violate Hostile Work Environment Harassment Law?

By Eugene Volokh

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.)

Full post as published by The Volokh Conspiracy on December 28, 2009 (boomark / email).