3:56pm PT by Eriq Gardner
A 79-Year-Old Doing Hip-Hop? 'The Simpsons' Is Where Free Speech Battles Age Bias Claims
As the old saying goes, no business is like show business. For one thing, show business is speech business. But what acts by an entertainment producer are legitimately free speech, and what acts are plain ol' discrimination? That's not always clear. Just look at the ongoing case of Alf Clausen, the 79-year-old who was fired as Simpsons composer after 27 years of celebrated work on the animated classic. As his lawsuit heads toward an important hearing next week, Clausen looks to undercut Fox's positioning that this dispute relates to an important First Amendment issue.
Clausen is suing Disney and its Fox divisions with the claim that his termination was due to age and disability discrimination. The musician says he has been diagnosed with Parkinson's disease and he objects to how Simpsons producers dumped him in favor of Hans Zimmer's company.
In April, in an attempt to defeat the suit, Fox gave a different side of the story. According to the defendant's court papers, Clausen was fired after producers raised concerns about his work in connection with one particular hip-hop–themed episode of the animated show. Simpsons producer James L. Brooks wondered if Clausen was the right person to prepare rap music, while others allegedly were disturbed by the discovery that Clausen had been delegating some of the work of composing music for The Simpsons to others, including his son Scott Clausen. Overall, according to declarations by other top producers on the show, the feeling was that the music could be improved by replacing Clausen.
"Defendants have presented evidence that the decision not to use Clausen as composer in future episodes of The Simpsons had speech-related motivations," wrote an attorney for the Simpsons defendants.
"Lies and deceit," responds Clausen's just-filed opposition. (Read in full here.)
"Mr. Clausen’s evidence … demonstrates that, since at least 2008, Fox had known he regularly delegated the composition of music to members of his team," states the brief. "This fact is confirmed not only through Fox's own cue sheets, but emails between Matt Selman, Al Jean, Carol Farhat and even James Brooks, wherein discussions about Scott Clausen and others composing cues are undeniable."
The plaintiff's attorneys then add, "The notion that Mr. Clausen was unable to capture the showrunners’ vision is equally ludicrous. … Mr. Clausen won two Emmys, five Annie Awards and became the most nominated composer in Emmy history, amassing a record 23 Emmy nominations for his work on The Simpsons. The mere fact that Al Jean and Matt Selman routinely skipped the recording sessions suggests how much faith and confidence they had in Mr. Clausen delivering their vision."
As for whether Clausen is capable of doing hip-hop, the composer says Brooks is only revealing "discriminatory ageist beliefs that Mr. Clausen was only good at old styles of music, rather [than] up-to-date genres, such as rap, electronic, etc. — even though the evidence and his work history prove otherwise."
At an Aug. 5 hearing in Los Angeles Superior Court, the issue for the judge won't necessarily be whether Simpsons producers were justified in replacing Clausen, who also says he's worked within budget parameters. Instead, the question may be: Was the firing about the music? Because if it's about the music, Fox stands a very good chance of prevailing on its anti-SLAPP motion. Clausen implies that his firing wasn't about the music.
California's SLAPP statute is intended to swiftly dispense with frivolous lawsuits interfering with someone's free speech. Under the first prong of SLAPP analysis, a judge examines whether a legal action arises from an act furthering a defendant's First Amendment activity in connection with a public issue. That analysis gets somewhat complicated with regards to entertainment and media companies. Courts don't want to overlook discrimination, but on the other hand, judges are mindful that these entities produce speech as a regular function. That sometimes means that a controversial decision by an entertainment or media defendant can be connected to a significant issue of speech. No wonder the topic has been the subject of very recent appellate opinions (like this one, or that one).
So, was Clausen's firing motivated by a desire to improve the music on The Simpsons — as Fox contends — or is that reasoning just pretextual? And how does a judge weight the evidence? Here, Clausen's attorneys Thomas Girardi and Ebby Bakhtiar attempt to convince the judge that Fox's prior knowledge about work delegation, among other things now in submission, add up to an inference that Fox is being deceitful with respect to the reasoning behind the decision to terminate the show's longtime composer.
If Clausen doesn't prevail on this point, L.A. Superior Court Judge Michael L. Stern will then turn toward an analysis of the merit of Clausen's claims. Under the second prong of the SLAPP statute, a plaintiff must establish a probability of prevailing before moving any further in the case. Clausen's lawyers translate this as meaning the suit need only show "minimal merit" (which they believe they have met), although Fox is likely to argue the screen is higher, particularly given the legitimate rationale they have offered for Clausen's termination.