On Thursday, lawyers for Justin Baldoni appeared in court, aiming to persuade a judge to dismiss Blake Lively's lawsuit against him, which alleges sexual harassment and retaliation during and after the production of their 2024 film "It Ends With Us."
Baldoni's legal team contended that the allegations stemmed from improvisation during the filming of sexually charged scenes, which did not constitute gender-based harassment. In an attempt to illustrate their point, attorney Jonathan Bach referred to the show "Heated Rivalry," a gay romance drama that recently concluded its first season on HBO Max. Laughter echoed throughout the courtroom as U.S. District Judge Lewis Liman indicated that he was unfamiliar with the series.
Bach further explained that the series featured several "explicit" scenes and was rebutting a point made earlier by one of Lively's lawyers, Esra Hudson. Hudson argued that Baldoni's choice to improvise on set was not an excuse for kissing and nuzzling that Lively had not consented to, thereby providing a basis for a claim of gender-based discrimination.
Bach countered this argument, asking if a male actor on "Heated Rivalry" improvising during an intimate scene with another man would lead to a complaint of gender-based discrimination. He frequently returned to the idea that any touching between Baldoni and Lively was part of their characters' relationship in the film and had nothing to do with Lively's gender.
As the first attorney to speak at the podium during the hearing, Bach began his argument by stating that Lively signed onto "It Ends With Us" knowing that it would feature "hot and sexy scenes" that would become "steamy and turbulent." Judge Liman quickly pushed back, indicating that Bach was surely "not suggesting" that the film's sexual subject matter gave Baldoni license to touch Lively as he pleased.
To further clarify his stance, Bach emphasized that "context matters." If anything "awkward" arose during filming, it was in pursuit of a certain aesthetic. He insisted multiple times that Lively's complaints were "small potatoes" that did not rise to the level of sexual harassment.
Hudson, speaking for Lively's side, first made clear her team's position that key facts were in dispute between the two parties, necessitating the input of a jury. She offered differing perspectives on a particular interaction between Lively and "It Ends With Us" executive producer Jamey Heath during which he entered a room while she was nude from the waist up. While Heath says he heard someone tell him to come in, Lively and her hair and makeup artists recall saying, "Whoa, whoa, whoa, no, no, no."
Hudson then focused on the issue of Lively's consent. She argued that Lively was "kissed, nuzzled and touched" in ways she hadn't consented to while shooting one scene, regardless of knowing she would be acting in intimate scenes. Judge Liman pressed Hudson about the exact meaning of consent in the context of intimate scenes, asking whether and how improvisation may come into play.
Hudson clarified that she wasn't saying improvisation should be off-limits or that an actor must give consent for every individual motion in a scene. However, for improvisation to be considered consensual, there should be a conversation about what kind of touching can be expected – hence the advent of nudity riders and intimacy coordinators.
Though Judge Liman continued to question whether every touch-related decision could be for a jury to decide – "That can’t be right," he said – Hudson maintained that in this scenario, there was a subjective standard they needed to look at: Lively was uncomfortable, surprised and leaned back, indicating that her consent had not been given. Whether or not another generally reasonable person would have reacted similarly, Hudson said, should be up to a jury.
Judge Liman took the arguments under submission and will rule on the motion at a later point. The case is scheduled for trial in May, and Liman may opt to narrow the scope of the allegations that a jury will consider.
