Alex Harris notes that hypocrisy can affect obscenity prosecutions, at the expense of free expression. He quotes a lawyer who observes that “Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” calling into question whether they really are applying “community standards” as obscenity law requires.
The same problem exists in far more severe form in sexual harassment cases. Juries have found employers liable for sexual humor overheard by the plaintiff that’s no grosser than what you can find in a sit-com on prime-time TV, and sexual discussion no more graphic than what many women enjoy reading in magazines like Glamour, Redbook, and Cosmopolitan. In the somber surroundings of the jury box, few jurors will admit that they like sexual humor, even if they in fact do. The Individual Rights Foundation pointed that out in its amicus brief in Lyle v. Warner Bros. Television Productions, 132 P.3d 211 (Cal. 2006), which dismissed a lottery-sized lawsuit against sitcom writers (and their employer) for telling sexual jokes as part of the process of producing the sitcom “Friends.” (I helped write that brief).
I earlier discussed the First Amendment and sexual harassment rulings here.