A Los Angeles judge has stepped down from a case alleging Miley Cyrus discriminated against Asian Pacific Islanders with a facial expression after the plaintiff accused him of racial bias for using the word “Oriental” in a court hearing.

Superior Court Judge Robert L. Hess's language could hardly have been more politically incorrect in the context of Lucie J. Kim's' lawsuit against Cyrus, which alleges the teen idol slurred Asian Pacific Islanders by slanting her eyes when she posed for a photograph with a group of friends.

At a June 4 hearing, Hess expressed “grave doubts” about the merits of the case but gave Kim “one more chance” to amend her complaint and show Cyrus violated California's Unruh Civil Rights Act. He made his verbal faux pas while describing the photo at issue in the case.

The people in the photo, he said, included “Orientals and non-Orientals” and Cyrus's gesture “could be construed as mocking or disparaging of persons of Oriental ancestry.”

Kim filed court papers a week later in which she said Hess's “use of the word 'Oriental' is akin to using the word 'N---er' or 'Negro' when referring to African Americans” and “reflects racial bias” toward Asians.

In refusing to acknowledge that Cyrus' “act of slanting her eyes was a racially offensive gesture,” she argued, Hess “was influenced by [his] own bias against Asians.” That bias “prevent[s] this court from being fair and impartial in this case,” she said.

Hess recused himself last month and the case is now assigned to Judge Ronald Sohigian, who will hear Cyrus' demurrer to the amended complaint Aug. 26. Sohigian's view of the case, though, is unlikely to differ from his predecessor's.

The plaintiff's theory, Hess said, is “an extraordinary expansion of what I understand to be the case law in this area” and “would essentially subject persons to Unruh Act liability for anything that might offend, in practically any context.”

Kim claims Cyrus's slant-eyed gesture violated California's Unruh Civil Rights Act, which makes it illegal for a “business establishment of any kind whatsoever” to discriminate against anyone based on race, color, ancestry or national origin.

In the amended complaint, she cites the use of Cyrus' image on lunchboxes and backpacks, her registration of her name as a trademark, and appearances at the inauguration of President Obama and on “The Oprah Winfrey Show” as evidence that she is an establishment with “a permanent settled position in life and business.”

But Cyrus argues that Kim cannot salvage her case with “superficial changes” to the complaint. “[A] facial expression, which is protected by the freedom of speech, is not actionable under the Unruh Act,” she says in her demurrer, and “being offended by a facial expression seen on an internet news site does not constitute [a] denial” of access to a public accomodation.

By Matthew Heller
8/18/09