*1 Aug. S054561. 1999.] [No. al., et Plaintiffs and Respondents,
OSCAR AGUILAR INC., al., SYSTEM, et Defendants Appellants. A CAR AVIS RENT *4 Counsel Kraemer, Cuneo, & & Hirschfeld Kelly
McKenna Curiale Dellaverson Rutter, Dellaverson, F. Baum Joel P. Donna M. John Kelly, Joanne A. Myers Thomas for Defendants Appellants. Adelstein; Bader the National Michael E. Rosman Hans F.
Bruce *5 Union, Foundation, and the Law Council the Reason Libertarian Writers behalf of Defendants and for as Amici Curiae on Rights Center Individual Appellants. of Free Jefferson Center for Protection
J. Joshua Wheeler for Thomas and as Curiae on behalf of Defendants Appellants. Amicus Expression Jr., Bedecarre, Bronson, McKinnon, P. Edwin L. Albert Currey, Bronson & Dodek; Renee Centro and Legal Bossart Adam M. La Raza Mary Halfpenny, for Plaintiffs and Saucedo Respondents. Chen for American Civil C. Ann Brick and Edward M.
Margaret Crosby, behalf of Curiae on of Northern California Amicus Liberties Union and Plaintiffs Respondents. Shiu, Middleton, Foerster, Patricia A. Jennifer & William Alsup;
Morrison Center as for the Law and Elizabeth Letcher Employment Claudia Center and Curiae on behalf Plaintiffs Respondents. Amicus Opinion
GEORGE, C. J. found that jury defendants had in engaged employment A discrimination, to be the of racial part permitting plaintiffs target epithets repeatedly spoken by fellow In addition to employee. awarding court damages, trial issued an injunction prohibiting offending such employee the future. Defendants using epithets argue such constitutes a restraint that violates their constitutional follow, to freedom of For the right reasons that speech. we hold that a remedial continued use of racial prohibiting epithets does not violate the right freedom of if there has been determination that the use judicial of such will contribute to the epithets continuation of a hostile or abusive work environment and therefore will constitute discrimination. employment
I The is from a present appeal judgment awarding damages injunctive relief. Defendants have not of the trial provided reporter’s transcript elected to proceedings, have means of an in lieu proceed by appendix a clerk’s We glean from this rather limited record. transcript. following 26, 1993,
In a first amended dated 17 Latino complaint April employees Inc., individuals, Avis Rent A Car sued System, Avis and 10 named causes of action alleging discrimination in violation of the Code, Fair (FEHA) (Gov. Act et Employment Housing seq.),1 § wrongful violation of intentional discharge infliction of public policy, distress, emotional infliction of emotional negligent distress. “drivers,” alleged were Avis as complaint plaintiffs employed by at its San Francisco to move Avis vehicles airport facility, among parking lots and from one location to another. Defendant John Lawrence was airport “the service station at the SFO AVIS location and authorized manager was to direct and control the drivers.” The complaint alleged Lawrence harassed He called “verbally Latino [plaintiffs] constantly. routinely only *6 names, drivers ‘motherfuckers’ and other and de- derogatory continually race, meaned them on the basis of their national and lack of origin English (Italics skills.” Defendant Black language original.) was Kathy alleged have conducted a into the theft of a discriminatory investigation suspected vehicle, calculator from a rental and Latino detaining only questioning In the course of officer was summoned and employees. inquiry, police Code, statutory specified. 1All further references are to the Government unless otherwise Service would Naturalization and the Immigration told that were plaintiffs following found the calculator was The if did they cooperate. be called to plaintiffs. and Black apologized day, verdicts, as fol- finding returned jury special
On October Ramirez, Lazo, Hernandez, Carlos Oswaldo German Plaintiffs Ramiro lows: a by against or discriminated were harassed and Mario Serrano Reyes, damages was awarded of these plaintiffs Each Black. supervisor, ha- were Peraza $15,000. and Orlando Mojica Plaintiffs Pedro amount knew or should Avis Black and Lawrence. against by or discriminated rassed and to these employees with respect conduct known of Lawrence’s have in the amount damages each awarded and Peraza was no action. Mojica took against or discriminated $25,000. harassed Marcos Recinos was Plaintiff known, know, it have Lawrence, nor should but Avis did not Black dam- Recinos was awarded to him. conduct with respect about Lawrence’s harassed or $25,000. Fonseca was Plaintiff Miguel the amount ages known or should have Avis knew discriminated Lawrence. against by action, Fonseca no but and took conduct with Fonseca Lawrence’s respect distress, damages. no and the awarded jury emotional did not suffer severe 15, 1994, request held to consider plaintiffs’ was hearing On December ongoing no evidence of there was argued relief. Defendants for injunctive “Well, harm, harm, and the court responded: of ongoing nor any danger that ... to find jury sufficient for there evidence presented was there, charac- had a common all of whom working four who were plaintiffs Latino racial teristic, is, Latinos or members Hispanic were they continual and in acts of harassment so had engaged Lawrence ancestry, there, because those conditions for people severe as to alter working test; or should have known that Avis knew Secondly, was the statutory [^] at the Department of the action that harassment. It be that bringing effect on here had a chilling and the action Housing of Fair Employment survives the that that effect chilling I to make sure the harassment. But want end of this process.” “Well, making the court is the hearing: court further stated during trial, that based on the during observed of fact based on evidence
finding com- already to the extent and discrimination harassment showing evidence based on his Lawrence, likelihood a substantial on Mr. there’s mented restrained.” in the future unless that he will do so actions 14, 1995, damages awarding court entered judgment On February Lazo, Ramirez, Hernandez, $15,000 each to in the amount Avis against Serrano, jointly Avis and Lawrence and damages against Reyes, *7 $25,000 Peraza, to and Recinos. The in the amount of each severally Mojica, that stated “Defendant John court also issued an as follows: injunction ethnic and desist from racial or using Lawrence shall cease any derogatory at, of, or of Avis directed epithets descriptive Hispanic/Latino employees Inc., Rent A Car and shall further refrain from uninvited System, any he intentional of said as touching long Hispanic/Latino employees, Inc., Avis Rent A Car in California. Defendant System, employed [^] Avis Rent A Car Inc. shall cease and desist from defendant System, allowing John Lawrence to commit of the acts described in above any quoted [the or under circumstances in which it knew should have known paragraph], acts; and or such shall further not investigate permit investigations regarding breaches of its rules or such are investigations when practices limited to or are of said who subjects targets Hispanic/Latino employees defendant, unless the circumstances are such that no other than employees or of such targets investigation(s).” Hispanic/Latinos reasonably subjects further ordered to certain notices advising Avis injunction post instances of conduct any discriminatory harassing employees report statement in and English Avis or its employees “publish policy re- with delineating employee rights manager responsibilities Spanish of racial or national harassment gard origin employee complaints discrimination . .” . . “from the
Defendants appealed mandatory prohibitory injunction of the the Court of with Judgment,” Appeal reporter’s portion providing issued, but not of the at which the was hearing transcript posttrial the court of the trial with providing reporter’s transcript proceedings. in lieu of a Defendants further elected to prepare appellants’ appendix clerk’s transcript. “that to the extent the injunction
The Court of concluded prohibits Appeal it is to use racist continuing epithets workplace Lawrence sound, but to the extent it reaches it constitutionally beyond to be exceeds the of the FEHA violation sought prevented improperly scope The Court of reversed the and must be modified accordingly.” Appeal the case to the trial court and remanded judgment injunctive portion manner that . . . limits its directions to “redraft the in a with to defendants’ argument to the In scope workplace.” response or ethnic of the use of racial “derogatory epithets” injunction’s prohibition to add “an further ordered the trial court was the Court of vague, Appeal racial or ethnic derogatory epithets, specifying list prohibited exemplary in order used in the Lawrence” workplace by such as those actually epithets is forbidden.” Plaintiffs to “more Lawrence Avis what warn precisely
129 the terms of of restriction the Court Appeal’s not challenged have decision, of that court’s review sought but Avis and Lawrence injunction, consti- of Appeal, the Court as limited that the even injunction, arguing granted We of expression. restraint of freedom tutes an improper prior to address question. review
II necessary that it is of this state declares “as public policy The FEHA seek, all of persons and right opportunity and safeguard protect on ac- or obtain, abridgment discrimination and without hold employment creed, color, race, ancestry, origin, physical national religious count status, sex, condition, or age.” marital medical disability, mental disability, ” (Brown ‘fundamental.’ to be court has declared (§ 12920.) policy “This P.2d Cal.Rptr. 37 Cal.3d v. Superior unrest, domestic strife ‘foments discrimination “Employment for development fullest utilization of its capacities the state of the deprives advance, the interest employ- affects substantially adversely 12920.) ees, (§ The express purpose and the in general.’ employers, public such eliminate effective remedies which will the FEHA is ‘to provide addition, has directed that (Ibid.) the Legislature In discriminatory practices.’ its so as to accomplish purposes. the FEHA is to be construed ‘liberally’ Court, 486.) 12993.)” 37 Cal.3d (§ (Brown v. Superior of race on the basis discrimination is harassment One form of employment unlaw- (h)(1), states that it is subdivision or national Section origin. . . because of race . ... or other any [or] ful an employer person, “[f]or of an or Harassment national ... to harass an origin employee applicant. than an or agent supervisor other applicant employee employee or should knows if the or its entity, agents supervisors, shall unlawful and appropriate and fails to take immediate have known of this conduct 7287.6, title section California Code of Regulations, corrective action.”2 harassment, defines harassment to include (b)(1)(A), “[v]erbal subdivision on a basis enumerated comments or slurs derogatory e.g., epithets, Act.” constitute also may harassment in the workplace
Verbal (42 Act of U.S.C. of the Civil Rights under title VII discrimination “Jury a document entitled augment appeal the record on with and Lawrence move to 2Avis states, supervisor not a “John Lawrence is pertinent part, Instruction No. 23” others, deny untimely. among motion is We object ground, that this Plaintiffs on the Avis.” record, verdicts appear special from the augment but observe that it does not motion to meaning of plaintiffs within jury “supervisor” that Lawrence was found (h)(1). subdivision section VII), (Meritor the federal of the FEHA. 2000e et Title seq.; counterpart § 49]; Bank v. Vinson Savings Cal.Rptr.2d Los Beyda City Angeles Cal.App.4th *9 FEHA].) Ex cases be considered in the interpreting VII 547] [Title effects of this form of plaining potentially debilitating employment discrimination, the Court has observed: “A discrimi United States Supreme . . . can and often will detract from abusive work environment natorily on the discourage remaining employees’ job performance, employees (Harris or them from in their careers.” v. job, advancing keep Forklift 367, 370-371, 17, 126 L.Ed.2d Inc. 510 U.S. S.Ct. Systems, [114 345, 295]; 1988) 349.) F.2d (6th Davis v. Monsanto Chemical Co. Cir. course, not of a racial slur in the violates the Of utterance every workplace FEHA or Title VII. As the United States Court has recognized all conduct that bemay the context of sexual harassment: “[N]ot ‘term, condition, described as ‘harassment’ affects privilege’ employ ment of Title VII. For sexual harassment to within meaning [Citations.] actionable, be it must be severe or ‘to alter sufficiently pervasive and create an abusive working conditions of employment [the victim’s] Vinson, (Meritor Bank 477 U.S. Savings supra, environment.’ v. [Citation.]” 2399, 2405.) reaffirmed this standard in court high Inc., Harris 21-22 Systems, v. Forklift enough 126 L.Ed.2d “Conduct that is not severe or pervasive 302]: to create an hostile or abusive work environment—an environ objectively hostile or abusive—is Title beyond ment that a reasonable would find person Likewise, does not subjectively VII’s if the victim perceive purview. abusive, condi to be the conduct has not altered the actually environment and there is no Title VII violation.” tions the victim’s employment, conduct court that it had “made it clear that observed Recently, high to a in the terms and conditions of must be extreme to amount change (1998) 524 . . . .” v. Boca Raton (Faragher City 2275, 2284, 662, 677].) claims evaluating courts the same standard California have adopted acts of sexual alleged In an FEHA claim under FEHA. rejecting had created a hostile work envi- harassment directed toward other women Pedro Court of Fisher San ronment for the plaintiff, Appeal held that Cal.Rptr. Peninsula Hospital Cal.App.3d to alter so as “sufficiently the harassment of must pervasive complained environment working and create an abusive the conditions of employment (Id. 608.) must that the defendant’s . . . .” “The plaintiff prove work a reasonable employee’s perfor- conduct would have interfered with of a well-being affected the mance and would have seriously psychological (Id. at 609- pp. offended.” actually and that she was reasonable employee occasional, isolated, sporadic, cannot be omitted.) fn. “[HJarassment of harassment a concerted must show trivial[;] pattern rather the plaintiff 610.) (Id. at nature. routine or a generalized [Citation.]” a repeated, of that case, validity not contest the do Avis Lawrence In present them. They against monetary damages awarding judgment portion the FEHA they supported violated findings concede that jury’s violates award damage do not claim they substantial evidence case, therefore, it is established Amendment. of this For the First purposes for work environment conduct created a hostile or abusive that Lawrence’s race, held liable and that Avis was properly on the basis plaintiffs *10 (See Matthews Lawrence.3 this misconduct failing knowingly prevent 598, 350]; 603-604 (1995) Cal.Rptr.2d Court 34 Cal.App.4th [40 v. Superior 1206, 1210 (1995) Cal.Rptr.2d 31 v. Court Page Superior Cal.App.4th 529].)
IH of the judgment challenge only portion Avis and Lawrence that, both general, relief. It is awarding injunctive beyond question courts enforcing and and Housing of Fair Department Employment instances of FEHA are not to redress only past employment empowered discrimination, Section a recurrence of such misconduct. but to prevent the FEHA is “to effective remedies states that the provide purpose adds: “In discrimination. Section 12920.5 which will eliminate” employment discrimination, rem effective order to eliminate it is necessary provide and and deter unlawful employment practices edies that will both prevent Accord effects of those on aggrieved persons.” (cid:127)redress adverse practices finds that an and Commission Housing if the Fair ingly, Employment order the “to has in an unlawful it engaged may employer employer practice, 12970, Further, (§ (a).) subd. cease and desist from the unlawful practice.” relief to the Commission order may prevent prospective “[affirmative (§ (a)(5).) subd. Similarly, recurrence of the unlawful practice.” extent, whether, that constitutes racial regulation question 3The and what scholarly subject been the may the First Amendment has or sexual harassment violate Browne, Harassment and the Censorship: Hostile-Environment (Compare debate. Title VII Gerard, (1991) in a Hostile LJ. 481 and The First Amendment First Amendment 52 Ohio St. (1993) Notre Dame L.Rev. Speech Harassment Environment: A Primer on Free Sexual Comment, (1992) UCLA L.Rev. Speech Workplace Harassment Freedom with Against Environment Sexual Harassment Sangree, Title Prohibitions Hostile 1791 and VII 461.) (1995) defend Rutgers Because Sight L.Rev. the First Amendment: No Collision employ amounted to unlawful challenged finding past that their conduct ants have not not, not, FEHA, address that broad need and do in violation of the we ment discrimination issue here. can, do, courts and often issue recurrence injunctions prohibiting “that, continuation of in a discrimination. We have held civil FEHA, action under the all relief in noncontractual available generally (Commodore actions . . . be obtained.” Home Inc. v. Systems, Superior 912].) 32 Cal.3d P.2d This Cal.Rptr. includes relief. injunctive (Snipes City of Bakersfield 760].) 869-870 Cal.App.3d Cal.Rptr.
Avis Lawrence that the was unneces argue initially because the record does demonstrate “Lawrence used words sary, above, As noted determined constitutionally prescribable.” jury FEHA, that Lawrence’s conduct violated the and defendants concede that substantial evidence. The record before this finding supported by Lawrence, court does not reveal the used because defend words precise ants elected not to of the trial We provide reporter’s transcript proceedings. claim, therefore, defendants’ because failed to this court reject they provide (Ballard with a record to evaluate this contention. v. Uribe adequate 41 Cal.3d 574-575 715 P.2d Cal.Rptr.
Defendants also because the argue unnecessary was record does not demonstrate that Lawrence conduct “engaged ongoing *11 that relief.” The trial court found to the arguably might injunctive justify court is a fact contrary, based evidence stating: making finding “[T]he trial, that the harassment observed based on evidence during showing Lawrence, and discrimination to the extent commented on Mr. already by do there’s a substantial likelihood based on his actions that he will so claim, future unless restrained.” In order to on this defendants must prevail But, show that this is not substantial evidence. as noted finding supported above, the trial defendants elected not to a transcript provide reporter’s have no basis which to Accordingly, argue proceedings. they upon to the trial court’s finding evidence adduced at trial was insufficient support to a continuation of defendants’ that relief was injunctive necessary prevent unlawful conduct. relief is unnecessary,
Defendants claim we must conclude that injunctive had ceased because it from the trial court’s comments Lawrence appears The conduct during proceedings. his unlawful pendency present contention, be that the may trial court rejected observing “[i]t of Fair and Housing of the action at the bringing Employment Department harassment,” a effect on the and finding and the action here had chilling and discrimination Mr. [by “based on the evidence harassment showing , commented on . . . there’s a substantial to the extent already Lawrence] unless that he do so in the future likelihood based on his actions will that a mere fact ruling. not err in so court did The trial restrained.” of a lawsuit conduct during pendency from unlawful refrains defendant relief to issuing injunctive court from the trial necessarily preclude does not conduct. of the unlawful a continuation posttrial prevent relief where against injunctive arguments courts have rejected “[M]any (2 to sued.” being only response their changed practices defendants 1748, 1996) ch. Lindemann, (3d ed. Discrimination Law Employment discrimination omitted.) subjected employment “Generally, person fn. discrimination, [citation], unless future against to an injunction entitled . An . . unlikely repeat practice, [citations]. it is employer proves been sued fails after it has actions only that takes curative employer to justify the violation that it will repeat sufficient assurances provide (9th Cir. (E.E.O.C. Corp. Goodyear Aerospace an injunction.” denying 17; (6th Inc. & Nursery Crafts, EEOC v. Frank’s 1989) 813 F.2d intentional 1999) finding any employ- 467 [“upon Cir. 177 F.3d discrimination, discretion to craft court broad ment a district possesses law”]; with the compliance that will ensure employer’s 1994) (7th [injunc- Cir. 40 F.3d Co. Dombeck v. Milwaukee Valve to different reassigned had been tion harasser victim although proper F.2d (7th 1990) Cir. areas]; Inn Corp. U.S. E.E.O.C. v. Gurnee work harassment although future sexual proper 817 [injunction prohibiting terminated]; County cf. Marin harasser had been of the sole Realtors, Cal.Rptr. Inc. v. Palsson 16 Cal.3d Bd. of alleged illegal practices P.2d discontinuance voluntary 833] [“ ‘[T]he of judicial charges illegality sphere does not remove the pending of such validity of determining or relieve the court of duty power the challenged practices the mere volition of party where charges [Citation.]”].) be resumed.’
IV is invalid claim that the injunction and Lawrence further Avis free guaran that their rights it is a restraint violates because I, Constitution, and article Amendment to the federal teed 2, defendants’ first consider of the California Constitution. We section the federal Constitution. claims under
A.
“Congress
states:
the United States Constitution
The First Amendment to
. . . .” This
the freedom of speech
. . . abridging
shall make no law
Fourteenth
states
through
to the
to free
right
speech applies
fundamental
652,
(Gitlow
(1925)
due
Amendment’s
clause.
v. New York
268 U.S.
process
S.Ct.625, 630,
69 L.Ed.2d
[45
terms,
stated in broad
to free
is not
Although
right
625,
697,
628,
(Near
(1931)
absolute.
v. Minnesota
283 U.S.
S.Ct.
75 L.Ed.
and of the
is also not an absolute
[“Liberty
press
[(1927)
and the state
its abuse.
right,
may
Whitney v.
punish
California
641,
1095]];
[(1931)
U.S. 357
S.Ct.
71 L.Ed.
Stromberg
California
532,
1117]].”].)
283 U.S.
S.Ct.
75 L.Ed.2d
crimes can consist
Many
359 [51
words,
Code,
(Pen.
653f),
such as
a bribe
solely
spoken
soliciting
§
Code,
Code,
(Pen.
118),
(Pen.
422).
threat
or
terrorist
perjury
making
§
§
698,
355,
(1995)
As
stated in In re M.S.
10 Cal.4th
we
Cal.Rptr.2d
threats,
P.2d
state
even those
consisting
may penalize
1365]: “[T]he
statute
out for
threats
singles
relevant
pure speech, provided
punishment
outside the
of First Amendment
In this
falling
scope
protection. [Citations.]
context,
Amendment
of the First
is to
goal
protect expression
‘
is,
in some fashion in
“communication in
engages
dialogue,
public
which the
seek to
or are
communication
persuade,
persuaded;
participants
beliefs,
which is about
or
to take
changing maintaining
taking
refusing
’
(See
action on the basis of one’s beliefs . . . .”
also NAACP
[Citations.]”
886,
3409, 3427,
(1982)
v. Claiborne Hardware Co.
458 U.S.
916 [102
1215];
Drivers Union v. Meadowmoor Co.
312 U.S.
552, 554-556,
Fallon,
1200];
85 L.Ed.
132 A.L.R.
295 [61
Harassment,
That
Dog
Sexual
Content
First Amendment
Neutrality,
13.)
also
consist
Didn’t Bark
Ct. Rev.
Civil wrongs
may
Sup.
words,
infliction of emo
such as slander and intentional
solely
spoken
valid,
not aimed at
tional distress. A statute that is otherwise
and is
protected
because the
does not conflict with the First Amendment simply
expression,
use
or other
statute can be violated
words
spoken
expressive
(Roberts v. United States
activity.
Jaycees
of invidious discrimination in
the distribution of available publicly goods, cause evils that has a interest government prevent— unique compelling conduct transmit. Accord from the of view such wholly apart point like violence or other activities expressive ingly, types potentially communicative such harms distinct from their impact, prac produce special to no constitutional tices entitled protection.”].) words, or in either alone This when reasoning equally spoken applies *13 conduct, discrimination. As already amount to employment with conjunction noted, the use of racial Court has held that the United States Supreme constitutes that is severe or sufficiently “employment epithets pervasive Inc., (Harris Systems, in of Title VII v. discrimination” violation Forklift Vinson, 57), and 477 U.S. 17; Bank v. supra, Savings U.S. Meritor supra, any suggestion inconsistent with at least decisions are implicitly these Further constitutionally protected. of this nature 2538, 2546, more, S.Ct. (1992) 389 in v. St. Paul R.A.V. in discussing 305], made this point explicit court high 120 L.Ed.2d constitutionally pro words spoken certain circumstances in which violate laws can in circumstances tected, some words stating: “[S]ince treason, for (a law against conduct but against directed not against speech secrets) . . . defense the Nation’s enemy by telling is violated example, at a directed the reach of statute within incidentally can be up swept Thus, deroga for sexually example, rather than conduct speech. [Citations.] words, Title words,’ a violation of other among produce tory ‘fighting prac discrimination sexual against VII’s general prohibition (1993) 508 U.S. tices, Mitchell (See also v. Wisconsin [citations].” 436].)4 . . . fail to “address asserts we concurring Justice Werdegar’s opinion is, the First Amendment permits that whether a critical preliminary question, that creates under FEHA for liability pure speech of civil imposition environment,” that this issue and asserts hostile or abusive work racially (Conc. of Werde uncharted First Amendment waters.” opn. takes us “into above, conclude J., 147-148.) as noted we contrary, at To the gar, post, pp. Harris, Meritor, R.A.V., that it is clear from the court’s decisions in high liability of civil past that the First Amendment permits imposition Defendants that create a hostile work environment. instances of pure speech case is whether the The sole issue in the do not otherwise. argue present the issuance of an prohibit Amendment also permits actions. discriminatory continuation of such Paul, Appeal supra, the Court of 4Relying upon v. St. the decision R.A.V. “secondary effects” of it was aimed at the present upheld
in the
case
because
“secondary
doctrine
agree that the
effects”
epithets. We do not
Lawrence’s use of racial
Barry
In TimesFilm v. Corp. ordinance 403], challenged municipal a film distributor 5 L.Ed.2d racial discrimination]), that utters or tolerates employer and an unprotected employment working to alter the pervasive workplace that are so severe or insults in the epithets conditions, refuge in the claim similarly may not take targeted minority employees harassment, constitutionally be treated as spoken, because not racial discrimination. their all for examination “submission of motion pictures prior
required exhibition,” this was an invalid restraint claiming expression. public prior that the state must the motion picture The film distributor argued permit that oc- thereafter could violation of law any be shown only punish ordinance, stating curred. The court high disagreed upheld of absolute distributor’s “is founded argument upon privilege claim under the First Amendment—a claim without sanction restraint against prior (Id. 394].) in our cases.” 49p. U.S. 51 Maryland
The decision Freedman v. reaffirmed the rule announced in Times Film Corp. that a of submission of motion Chicago, supra, requirement of exhibition does constitute an advance invalid pictures necessarily restraint, but clarified such a must include “procedural requirement (Freed- of a safeguards designed obviate dangers censorship system.” Maryland, man v. 380 U.S. at such One *17 is that before an safeguard issue the exhibition of injunction may prohibiting a motion there must be a determination that the film does picture, judicial not constitute The court stated: “The protected expression. high teaching that, our cases is because a in only determination an judicial adversary ensures the to freedom of proceeding necessary sensitivity expression, only a a procedure judicial determination suffices to a valid requiring impose (Ibid.) final restraint. [Citations.]”
In Paris Theatre I v. Slaton 413 U.S. [93 Adult 2633-2634, 446], the court high statute author- upheld Georgia materials, an izing the exhibition of obscene prohibiting stating: “Here, no restraint on the Georgia exhibition of the films involved imposed in this case until after a full and a final adversary proceeding judicial determination Court that the materials were consti- Georgia Supreme tutionally unprotected.” Comm’n,
In Human Pittsburgh Press Co. v. Rel. 413 U.S. United States Court an order from upheld prohibiting newspaper manner advertisements in a that would constitute publishing employment discrimination. The ordinance at issue in that case city discrimi- proscribed nation in in a manner similar to the FEHA and had been employment to forbid from wanted” advertise- interpreted newspapers carrying “help in ments columns under such as “Male gender-designated captions Help Wanted” and “Female Wanted.” ordinance made Help Observing sexual discrimination in court held that the illegal, high conduct, First Amendment did not such “We have no protect illegal stating: doubt that a could be forbidden to a want newspaper constitutionally publish (413
ad a sale of narcotics U.S. at proposing soliciting prostitutes.” p. 2560].) S.Ct. at The court concluded: Amendment p. high “Any might interest which be served commercial advertising ordinary and which interest proposal might outweigh governmental arguably altogether absent when the commercial supporting regulation activity itself is and the restriction on is incidental to a valid illegal advertising (413 limitation on economic U.S. at S.Ct. at activity.”7 p. p. The court Press Co. then addressed the that Pittsburgh argument order forbidding gen- the advertisements newspaper publishing The columns was a restraint on der-designated prohibited prior expression. court, it held high first never had that all noting injunctions against “The of a were stated: vice restraint impermissible, special newspapers . . communication will . before an determi- suppressed adequate nation that it is First Amendment. order unprotected by present [^] does not Because the order is based on endanger arguably protected speech. conduct, course this is a case in which continuing repetitive as to effect of is asked speculate publication. [Citations.] Moreover, the order is clear and no more than broadly necessary. sweeps And because no interim relief was the order not have into granted, gone will final effect before our determination that the actions of Press were Pittsburgh omitted; (413 2561], fn. also U.S. at see unprotected.” Center, Madsen Women’sHealth fn. 2 Inc. 2516, 2524, all injunctions 607] [“Not however, affect restraints’ the sense ‘prior incidentally expression, *18 (1971) York that the term was used in New Times Co. United States 403 [v. 2140, 822]], U.S. S.Ct. L.Ed.2d or Vance Universal Amuse- 713 29 [v. 1156, (1980) 413]]”].) ment 445 308 Co. U.S. S.Ct. The court that once a court has found high recognize decisions foregoing unlawful, that a is an order injunctive pattern speech prohibiting specific of that is not a continuation repetition, perpetuation, practice prohib- (Kramer (3d 1991) Cir. ited restraint” of Thompson “prior speech. 666, held that repeatedly F.2d United States Court has Supreme [“The be an not considered unconstitu- injunction will against speech generally that tional restraint it is issued after a has determined the speech if prior jury reason, the same constitutionally injunction is For protected.”].) does not a restraint prohibited prior issue in the case constitute present 557, 7In Comm’n 447 U.S. 566 [100 Central Hudson Gas & Elec. v. Public Serv. 2343, 2351, 341], high speech to come court stated: “For commercial L.Ed.2d Amendment], misleading.” activity and not be it at least must concern lawful within [the (See Brewing Rubin v. Coors Co. 476 [115 also 532, 538-539].) the order “is clear and expression, provided no more than sweeps broadly Comm’n, necessary.” Press Co. v. Human Rel. (Pitsburgh 2553, The at issue is based a injunction upon course continuing that has been determined to repetitive speech judicially Thus, violate the FEHA. Avis and Lawrence from prohibiting continuing violate the FEHA does not violate their First Amendment rights.
A discussion is found in Auburn persuasive (1st Police Union v. Carpenter 1993) Cir. 8 F.3d which a Maine statute upheld prohibiting persons officer, soliciting benefit of a enforcement property law agency, or association. Violations of the statute could be enjoined penalized The court civilly. that an appeals rejected argument injunction against such solicitation would constitute necessarily an invalid restraint on prior “A restraint is a expression: prior government regulation limits or conditions in advance the exercise of First Amendment protected activity. the classic form Although restraint involves an prior [Citation.] adminis scheme, trative [citation], licensing judicial injunction prohibits speech to a prior determination that the also constitutes a unprotected prior restraint. Any system restraints of prior [Citation.] ‘comes to this bearing heavy its constitutional presumption against validity.’ [Ci Court, however, . . . tation.] ‘has held [H] never that all [H] injunctions ‘The impermissible.’ vice of a re special prior [Citation.] straint is that communication will either suppressed, directly inducing excessive caution in the before an determination speaker, adequate that it is the First unprotected by Amendment.’ An [Citation.] tailored, is narrowly based upon course of continuing repetitive speech, after a granted only final adjudication on the merits that the (Id. does not constitute unprotected 903; an unlawful restraint.” Retail Credit v. Russell Company 234 Ga. S.E.2d ‘The order present 62] [“ the defendant from prohibiting [an continuing false credit information about the report does not plaintiff] endanger arguably protected Because the order is speech. based on a con conduct, course of tinuing repetitive this is not a case in which court is asked to ”]; to the effect of speculate Haseotes publication’ v. Cumberland Farms, (Bankr. 1997) Inc. D.Mass. 695.)8 216 B.R. *19 of
By parity
reasoning,
use of racial
pervasive
has been
epithets
determined
judicially
to violate the FEHA not
is
First
protected
contexts,
variety
a8In
upheld injunctions
courts have
prohibiting the continuation of a
expressive
course of
(Vendo
conduct
that violates a specific statutory prohibition.
Co. v.
623,
635-636,
Corp.
2881, 2891,
Lektro-Vend
fn. 6
[“nothing
prevents
. . .
a
enjoin[ing]
federal court . . .
the commencement of
[from]
proceedings
additional state-court
if it
concludes from
course and outcome of the first one
proceedings
laws”];
that such
would
a
constitute
violation of the antitrust
Hosp.
San Antonio
(9th
1997)
Carpenters
v. So. Cal. Council
Cir.
[upholding preliminary
Amendment, (Cf. and such unlawful conduct be may enjoined. properly Canners, 1067, 1990) Inc. F.2d Beverage (11th E.E.O.C. v. Cir. 897 1070 directed to abusive injunction language [upholding racially workplace, issues]; without free Robinson v. Jacksonville addressing Shipyards, speech (M.D.Fla.1991) Inc. Amendment F.Supp. [holding does to not bar relief course of conduct found injunctive against continuing harassment, constitute sexual verbal harassment and including display and sexually verbal harassment are not explicit photographs: pictures “[T]he act as because conduct form of protected they discriminatory speech environment.”].) hostile As the amicus curiae brief of American work Civil Union au- suggests, Liberties of Northern California controlling thorities establish that be where fair “[s]peech may enjoined judicial has determined that a process unprotected.” repetitive pattern speech
B. Defendants also that the violates argue injunction the California Constitu- I, (a), tion. section Article subdivision California Constitution states: and his or write her senti- “Every person may freely speak, publish ments right. on all for abuse of this A law subjects, being responsible or not restrain or Avis and Lawrence may abridge liberty press.” court, on a decision of this handed more than a rely down heavily century an ago, earlier version of this interpreting provision. 458],
In v. 112 Cal. P. this court Dailey Superior invalidated a court order prohibiting performance advertising superior circumstances criminal of a that was based of a case play upon pending trial, that was to to “We are clear go entirely about unequivocally declaring: that the had no the order forms the basis of jurisdiction court make which for such order was an proceeding, attempted infringement rights upon I, citizen section article of the constitution of this guaranteed every state. section ‘Every That citizen write provides: may freely speak, sentiments on all for the his publish subjects, being responsible [or her] Facility Rats”]; “This Medical Full of Carpenter (6th Is reading banner v. Lothschuetz 1990) [directing entry injunction limited Cir. F.2d “narrow and continuing reiterating defamatory prohibit same libelous [the defendant] Union, Community University Inc. Tenants charges”]; 42 Ohio O’Brien v. St.2d libelous, judicially all the Op.2d Ohio 327 N.E.2d has been found if 753] [“Once met, requirements injunctive injunction publication for restraint of continued relief Sys. Training Caswell (Italics of that same Advanced may original.)]; proper.” v. 1984) Equip. (Minn. therefore Co. 352 N.W.2d A.L.R.4th hold 299] [“We below, a full disparaging limited to material either after as it is found libelous trial, (D.Ariz., Saja stand.”]; Federal Trade Comm’n jury not unconstitutional 7, 1997, Civ-97-0666-PHX-SMM) [upholding prohib Oct. No. 1997 WL donations].) iting of fraudulent charitable continuation solicitations of *20 be or of that and no law shall to restrain the abridge abuse right; passed is terse and of or of the of this section liberty wording press.’ construction needed. The right and its so is not vigorous, meaning plain unlimited, write, of the citizen to and his sentiments freely speak, publish of that but he is at the hands of the law for an abuse He right. responsible he shall have no censor over him to whom must to permission apply write, but he held to the law for shall be accountable what speak, publish, writes, he It is that this right he what what he speaks, publishes. patent write, exercised, be to cannot abused until it is speak, publish, before it is exercised there can be no responsibility.”
The above cannot be as language quoted Dailey broadly interpreted circumstances, court, defendants a under all from suggest, prohibit enjoin- ing Dailey The circumstances in involved a true restraint in “speech.” prior court had a which to its superior prohibited production play prior first performance because the was based circumstances simply play upon criminal case. The faced pending Dailey court was not with the whether injunction an the continuation of conduct that question prohibiting has been determined to be unlawful constitutes restraint. judicially prior therefore, Dailey, does not support position (Ginns case constitutes an invalid restraint. present prior Savage 520, 524, Cal.2d fn. 393 P.2d used in Cal.Rptr. [“Language any is of course to be opinion understood facts and the light court, then issue before the and an is not for a opinion authority proposition considered.”].) not therein
Recent
of this court
decisions
demonstrate that we
have
adopted
defendants,
rule advocated
any
impinging upon
right
free
an
constitutes
invalid
restraint. In Wilsonv.
expression
Superior
116],
Under the California case thus does not constitute a prohibited present continu- defendants were enjoined restraint of because simply speech, been determined to a course of that had judicially ing repetitive speech *22 harassment in violation of the FEHA. constitute unlawful
V that, claim if some relief injunctive against Defendants further even because future racial the order in this case is invalid epithets permissible, above, it is broad. As noted one of the overly injunction prohibited provision racial or ethnic defendant Lawrence from “using any derogatory epithets at, of, directed of Avis Rent A Car descriptive Hispanic/Latino employees Inc. . . to the extent .” The Court System, Appeal upheld provision it Lawrence “from to use racist in the work continuing prohibited epithets that, but ruled to the extent the to conduct outside place,” prohibition applied the “it exceeds the of the FEHA violation workplace, improperly scope to be and must be modified In further sought prevented accordingly.” claim, to defendants’ the Court of restricted the response additionally Appeal the trial court to add the “an injunction by to directing injunction exemplary list of racial or ethnic prohibited derogatory epithets, specifying epithets, such as those used Lawrence” in order to “more actually by warn Lawrence Avis what is forbidden.” Because neither precisely nor defendants have review of those limitations of the plaintiffs sought scope their injunction, before us and we no on validity express opinion that matter. that,
Defendants assert even as modified the Court of Appeal, injunction is broad because it overly Lawrence enjoins employing terms of’ racially derogatory Avis’s even ‘.‘descriptive Hispanic employees, outside of those hearing employees.
Defendants argue use of racial outside the epithets hearing does not contribute to a hostile if the Hispanic employees work environment audience does not find unwelcome and the of the racial subjects invective are unaware The Court of dis- they being maligned. Appeal “Continual use of racist agreed, stating: epithets poisons atmosphere even when some of the invective is not directed at or even workplace, heard the victims. If the at Avis’s San Hispanic/Latino employees Francisco location know Lawrence is free to continue his airport voicing backs, behind racist their on-the-job it will remain a hostile epithets place circumstances, which to work. Under the there was direct where present invective, racist continued indirect invective would serve to maintain environment, abusive work thus both are properly enjoined.” The United States Court has held that an imposes a content-neutral restriction must “burden no more upon expression (Mad
than to necessary significant serve interest. government [Citations.]” Center, Inc., sen v. Health Women’s supra, Acuna,
2516, 2525, 593, 608]; ex rel. Gallo v. People supra, 1090, 1120.) to Cal.4th court “Our close attention the fit high explained: of an and the it objectives between restrictions imposes rule, is consistent with the from First Amendment general apart quite considerations, be no ‘that relief should more burdensome injunctive than defendant relief necessary provide complete plaintiffs.’ [Cita Center, Inc., (Madsen Health Women’s 512 U.S. at tions.]” 2516, 2525, 593, 608].) *23 to Because defendants elected not a of the trial provide transcript proceed- that, no we have basis which to conclude in the ings, particular upon case, of it to use of circumstances this was the the unnecessary prohibit even the of to a racial outside in order epithets hearing plaintiffs, prevent environment. continuation of hostile work It that the certainly possible racial use of even outside the would contribute epithets hearing plaintiffs to an of racial the hostile work atmosphere hostility perpetuate would defendants. in the environment created limited record before us Nothing that the was more than to necessary burdensome suggests injunction prevent violations the FEHA.9 The trial court found that Lawrence’s future John use of racial was severe or to constitute epithets pervasive sufficiently dissenting injunction necessarily opinion suggests 9Justice Kennard’s overbroad repeated initially racial must type pervasive epithets because it is not limited to the or to the creation or be shown order establish of an abusive hostile work environment. The however, authority, support proposition cites no to that once it has been estab dissent sufficiently pervasive epithets or a lished existence of severe or racial insults environment, enjoin already an abusive a court not workplace has created work by continuing offending party perpetuating from environment to use such abusive racial epithets or in the future. insults matter, general repeated a conduct has been found to constitute a As when course of enjoin future employment practice, nuisance or unlawful a court is authorized to individual In likely perpetuate practice. that are the nuisance or unlawful E.E.O.C. v. acts continue 1994) (6th injunction— upheld Metal Casket Co. Cir. 24 F.3d court Wilson finding leaving following prohibited harassment—-that defendant from sexual conduct, alone, any Although standing this did constitute premises employee. with female harassment, enjoined, “related sufficiently it could be because it was to the properly sexual case, 842.) (Id. explained: the instant appeals unlawful The court of “In proven conduct.” employees either until female pattern emerged. a distinct of sexual harassment Wilson waited portions him of the facilities or transferred them to isolated areas. were alone with in isolated isolated, they grabbed them and fondled their breasts and buttocks. With Once were he Ellis, engage in oral fondling, forced her to sex and Barbara addition to unwanted Wilson sexually female and asked them to propositioned employees intercourse. Wilson also sexual behavior, company’s premises. pattern him off Based on this accompany accord, (Ibid.-, enjoins harassment to occur.” appropriately conduct which allowed sexual 1977) (5th Kentucky Packaging Cir. F.2d Fried Chicken v. [“An Diversified fashioning against party protective. can be as well as In relief who therapeutic discrimination. The trial court further found that injunctive relief was a continuation of the necessary abusive work environ- prevent ment. the trial court Accordingly, enjoined Lawrence “using any at, of, ethnic racial or directed derogatory epithets descriptive Hispanic/ Latino of Avis Rent A Car employees Inc.” Because System, Lawrence’s use of such determined past had been epithets judicially FEHA, violate the him from prohibiting continuing discriminatory does not activity constitute an invalid restraint of speech.
VI The judgment the Court of is affirmed. Appeal Baxter, J., Chin, J., concurred.
WERDEGAR, J., Concurring. This case the colli presents sion of two basic very values the United States Constitution. protected by The first is Const., to live one’s life free discrimination. of racial (U.S. XIV.) Amend. The second is to one’s mind free speak of government Const., (U.S. I.) Amend. censorship. trial court balanced these two *24 bedrock constitutional to conclude defendant principles John Lawrence val could be idly enjoined in a form of a engaging found was speech jury in violation of the Code, Fair and (Gov. Act. Employment Housing § (hereafter et FEHA).) seq. A divided Court of affirmed the trial court Appeal judgment, but remanded the case to the trial court with directions to narrow the terms of the it to injunction by limiting and to an provide list of exemplary words. prohibited
To the extent the plurality affirms the opinion Court of judgment Appeal, with my of the understanding context of the purpose (see list” of “exemplary post, 9), words fn. I concur.1 I write because the separately does plurality opinion not address what I to be believe is, a critical preliminary whether the First question, Amendment permits of civil imposition under FEHA liability that creates a pure speech hostile or racially abusive work environment. to address this By declining standards, transgressed has governing legal equity a court of proscribe is free to activities that, alone, standing unassailable.”].) would have been Thus, although alone, single epithet, standing use of racial would not create a hostile environment, work jury once the had pervasive pattern determined that a of such use had environment, created a hostile work the trial court in case this did not abuse its discretion in concluding that each perpetuate additional instance would the hostile environment and should enjoined. agree plurality 1I also opinion’s “secondary with conclusion that the effects” doctrine ante, (Plur. 4.) does not control this opn., case. fn. fails to that we are with question, plurality opinion acknowledge case into uncharted First Amendment waters. No decision sailing has, Amendment United as declared First States Court Supreme yet, indeed, environment; restrictions on a hostile work creating permits one schola among of considerable debate First Amendment question (Volokh, (1995) rs.2 How Law Free 47 Rutgers Harassment Restricts Speech 563; L.Rev. Title Sangree, Against VII Prohibitions Hostile Environment (1995) Sexual Harassment the First No Sight Amendment: Collision Fallon, L.Rev. 461 Harass Rutgers Sight); No Collision Sexual (Sangree, ment, Content and the Amendment That Bark Neutrality, Dog First Didn’t Gerard, (1994) (Fallon, Harassment); Ct. Rev. 1 Sexual First Sup. in a Amendment Hostile Environment: A Primer on Free and Sexual Speech Comment, 1003; (1993) Harassment Notre Dame L.Rev. Freedom (Volokh, Harassment 39 UCLA L.Rev. 1791 Speech Workplace Browne, Harassment); Workplace Title VII as Censorship: Hostile-Environ ment the First Ohio Harassment and Amendment St. LJ. Strauss, (Browne, Title Censorship); VII Sexist Speech Workplace 1.) 25 Harv. C.R.-C.L. L.Rev. a serious arises Accordingly, question whether or not the in this case constitutes impermissible prior restraint on defendant John Lawrence’s speech.
As I direct absence United States explain, despite any a hostile environment falls authority creating work finding speech Amendment, outside court decisions protection existing high that, theory strands woven coherent provide analysis together, produce case why the in this does not violate defendant explains Lawrence’s First Amendment rights.
I *25 outset, At the I note the record in this case is inad- appellate woefully in on an by Defendants this equate. proceeded appeal relying appellants’ of a is a choice under the in lieu clerk’s This appendix permissible transcript. lively scholarship 2“There is a debate First Amendment over the constitutional status within harassment, discriminatory particularly workplace. of A number of decisions verbal liability finding part VII turned in on would harassment under Title have whole or what we ordinarily seriously the recognize ‘speech’; yet as few have considered the relevance of courts judicial regard. stepped in this have into the vacuum First Amendment commentators law, argued to gusto. applied have that Title harassment as with Some commentators VII’s nearly abridges protected by freedom of the First Amendment. Others speech, speech all necessary workplace equality entirely have harassment as both to consistent defended law point free doctrine. Still others situate themselves some speech principles with (Estlund, speech.” of to application middle and advocate some restrictions Title VII (1997) Workplace Harassment 72 The Architecture the First Amendment and the Case of of 1361, 1363-1364, omitted.) fns. Notre Dame L.Rev.
149 but, Court, 5.1), (see Cal. of rule rules Rules governing appellate procedure choice, the record not reveal what defendant as a of that does consequence said that the found created a hostile work environment Lawrence jury of also how often he made violation FEHA. The record does not reveal Defendants, course, what of utterances or in context. offending case, in this the burden of record on bear providing appeal appellants (Null (1988) to claims. Los 206 City Angeles their v. adequate adjudicate of 1528, 1532, 492]; Buckhart v. San Fran- 1535 Cal.Rptr. Cal.App.3d [254 etc., 1032, Bd. (1988) cisco Residential Rent 1036 Cal.App.3d 197 [243 518, 298]; Witkin, (4th 1997) Procedure 9 Cal. ed. Appeal, pp. Cal.Rptr. § 562-564.) If the record furnished is establish the of an insufficient to merits it is who bears risk of appellant’s legal position, appellant uncertainty ante, (See, e.g., caused lacuna. claims plur. opn., [rejecting record]; to City for failure an Null v. Los provide adequate Angeles, supra, 1536.) at p. if this an Even defendants took risk for court willingly, appellate Amendment such a adjudicate case on record important sketchy unfortunate. Were we of the nature and Lawrence’s frequency apprised verbal outbursts find we would his did against plaintiffs, perhaps environment, create a hostile actually work resolution of thereby rendering issue important (See constitutional v. People unnecessary. Hernandez (1998) Cal.4th (dis. 845-848 P.2d Cal.Rptr.2d 465] J.) should Werdegar, not decide constitutional opn. issues until [court so]; necessary (1998) do Bennett People v. 17 Cal.4th 393 [70 (conc. J.) [same].) 949 P.2d Cal.Rptr.2d Werdegar, opn. Were we with a record the nature Lawrence’s provided describing epithets, find, we would that his fell into the perhaps example, category words,” so-called which the court has found “fighting high unprotected (See First Amendment. Chaplinsky v. New Hampshire 1031].) Or his L.Ed. if offensive was perhaps, conduct, combined with different First Amendment concerns would (See Texas implicated. v. Johnson U.S. 397 342]; United States O’Brien U.S. 367 a record Lacking that would resolve these we must decide questions, case as we find it. I I now find the proceed explain why briefly plurality I next a different opinion’s analysis unsatisfactory; forth put analysis sup- portive judgment.
n defendants, the From abbreviated record we discern that provided by may the found environment defendant Lawrence created a hostile work jury
150 in a continuous of racial and other engaging using pattern practice to demean and embarrass a The Latino workers. epithets group plurality we not in concludes need this case confront the constitutional opinion thorny alone based of whether constitute the basis question speech liability environment, on the creation of a hostile work that “defendants reasoning have not the their conduct amounted to unlawful challenged finding past not, FEHA, in the we discrimination violation of need employment [so] not, ante, (Plur. 3.) do address that broad issue at fn. here.” opn., the the
By never establishes taking approach, plurality opinion speech case is the at issue in this the First Amendment. Although unprotected by law” an declares under “well-established the is not opinion restraint, the invalid “because order was issued after the only jury discrimination, determined that defendants had in engaged employment order their activ- the defendants from unlawful precluded continuing simply ante, 138), length as discussed at hereafter ity” (plur. opn., greater 152-155), I can locate from this court or the United (post, authority no pp. Court in States that concludes that creates workplace environment, alone, hostile work can be made the basis racially standing law, (under civil either FEHA the similar federal title VII of liability VII)3) et (42 (hereafter Civil Act of U.S.C. 2000e title Rights 1964 seq.) § not consistent with First Amendment’s state shall guarantee (See make York laws the freedom of Gitlow v. New “abridging speech.” 629-630, (1925) 666 L.Ed. [applying [45 states].) Amendment to the can that a plurality opinion’s legislative body implicit assumption a statute the effect of constitutional validly pass having removing protection from is unfounded. For the mere fact has decreed Congress example, an VII) title that the creation of abusive hostile work (by enacting law mean racial environment violates federal does not necessarily Amendment. the First such a work creating atmosphere unprotected by cannot, Amendment one’s First Congress by legislation, change scope (United (1990) States v. Eichman rights. (42 seq.) et prohibited by is also federal U.S.C. 2000e § 3Harassment law. FEHA, “Although wording wording particulars title VII differs some objectives acts are antidiscriminatory overriding public policy purposes two City Angeles (Beyda Cal.Rptr.2d Los Cal.App.4th
identical.”
v.
law,
547].)
authority
emerging
such as
there is a
of state
area of
“Where
dearth
discrimination,
interpreting title VII.”
appropriate
consider
federal cases
it is
1409, 1416,
116].)
(Mogilefsky
Superior
Cal.Rptr.2d
fn. 5
Cal.App.4th
v.
when
“Although
controlling,
interpreting
federal
title VII
instructive
they are
cases
Stores,
106,112
Lucky
Inc.
(Spaziano
Cal.App.4th
analyzing
claim.”
a FEHA
Cal.Rptr.2d
*27
Amendment];
L.Ed.2d
Protection Act of
violated the First
[Flag
287]
S.Ct.
City
cf.
Boerne v. Flores
In on the liable for defendants were relying jury’s finding FEHA, defendants’ failure to violating together with challenge finding case decid- resolve this without appeal, plurality opinion attempts contrast, the critical First Amendment involved. In ing I believe we question must confront the fundamental preliminary whether question speech creating hostile work environment is racially the First Amendment. I protected by now turn to that question.
IH
I
begin my
with
that we must assume
analysis
recognition
for purposes
of this
that defendant
appeal
Lawrence
in a
engaged
pervasive practice
workers,
hurling racially
insults at Latino
tinged
them out as the
singling
Inc.,
of his
recipients
offensive
Defendant Avis Rent A Car
epithets.
System,
Lawrence’s
tolerated this
employer,
outrageous
behavior
was
thus
in the creation of a
complicit
hostile and abusive work envi
racially
ronment.
I assume the
Though
finds such
majority
words distaste
persons
ful, their utterance nevertheless is
the free
generally
protected
guarantee
First Amendment to the United States Constitution. If
Lawrence’s invective would not have caused a reasonable
to react
person
with violence
568),
v. New
if
(Chaplinsky
Hampshire,
his
did
words
not incite
in imminent lawless action under
people
engage
circumstances
such action
making
likely (Brandenburg v. Ohio
reasonably
curiam)),
23 L.Ed.2d
if his
(per
words were not
(Miller
obscene under the Miller test
v. California
his a of the here. contain point plaintiffs “[i]nsults to hear. is entitled his audience to ‘Strong view speaker express in and effective rhetoric cannot be channeled nicely extemporaneous purely ” A (Fried, Jurisprudence: The New Amendment Threat dulcet First phrases.’ 242, 225, (1992) to U. Chi. L.Rev. NAACP v. Claiborne Liberty 59 quoting 886, 3409, 3434, 73 (1982) Hardware Co. 458 U.S. S.Ct. L.Ed.2d 928 [102 Greenawalt, 1215]; They Speech? also Insults and Are Protected Epithets: see 287, (1990) 42 is coincidence that the less L.Rev. no Rutgers [“It and more radical are those who often use words and phrases privileged discourse.”].) has might be to civil As Court judged impair Supreme observed, the State has no to cleanse trenchantly “[sjurely right public debate to the where it is to the most point grammatically palatable squeamish 1780, (Cohen (1971) 403 S.Ct. us.” v. U.S. among [91 California 284].) L.Ed.2d then, workers, What, of the Latino were the rights unwilling of who listen, to of racial invective? Do have the targets they Lawrence’s right to work free of discrimination and intimidation? Do Lawrence’s right racial do First Amendment their Most rights trump rights? fundamentally, of First Lawrence’s offensive come within the racially epithets protection Amendment? The R.A.V. Harris
A.
Relevance
of
noted, ante,
the decisions of the
Court provides
As
nothing
Supreme
that is so
definitive
on whether racist
guidance
speech
a hostile
and constant that it creates
and abusive work environ-
pervasive
Amendment’s
of freedom
guarantee
ment is
First
protected by
speech.
however,
decisions,
from two
court considers such
suggest
high
Hints
the First Amendment.
outside the
speech
protective scope
1992, the
held the
Paul’s
ordi-
City
municipal
In
St.
(R.
Paul
was unconstitutional.
A. V. St.
banning
nance
certain hate speech
degree
presumption against prior
The
restraints
heavier—and the
L.Ed.2d 584] [citations].
penalties.
against
expression
by
on
criminal
protection
imposed
broader—than
limits
society
punish
deeply
prefers
etched in our law: a free
theory
Behind the distinction is
they
them and all others
rights
break the law than to throttle
few who abuse
after
say, and
line
always
know in
what an individual will
beforehand.
It is
difficult
advance
illegitimate
finely
so
that the risks
freewheel-
legitimate
between
often
drawn
Promotions,
(Southeastern
(1975)
Ltd. v. Conrad
420 U.S.
ing censorship
are formidable.”
1239, 1246,
448],
original.)
government
43 L.Ed.2d
italics
558-559
S.Ct.
”
“
(New
York Times
v. United States
Co.
justify
‘heavy
restraint.
bears a
burden’
2140, 2141,
(per
Organization
curiam);
822]
1577-1578,
a Better Austin v. Keefe
(R.A.V.).) Justice
The the justices R.A.V. decision con concurring separately expressed cern that the rationale into the majority’s called question constitutionality VII, sexual harassment claims under title which declares it “an unlawful for an ... employment practice to discriminate employer against any terms, conditions, individual with to his respect compensation, privileges race, color, sex, because of such employment, individual’s religion, Thus, White, (42 national 2000e-2(a)(l).) U.S.C. Justice origin.” writing § for four stated justices, that the broad uses Court principle “[u]nder case, decide the hostile work environment claims based sexual present should (R.A.V., harassment fail First Amendment . .” review . . supra, (conc. White, U.S. at J.).) 409-410 pp. p. opn. 2557] Addressing Justice title Scalia VII claims did question, replied not come within ambit “since words can in majority’s analysis: some circumstances violate laws directed not but against against speech treason, (a conduct law against for example, violated telling enemy secrets), the Nation’s defense a content-based of a subcategory particular class of can prescribable within the reach of swept up incidentally Thus, a statute directed at than conduct rather speech. [Citations.] words, words,’ example, sexually derogatory ‘fighting among other a produce violation of Title VII’s dis- general prohibition against sexual (R.A.V., crimination in 505 U.S. at employment practices, supra, [citations].” 2546], added.) S.Ct. at p. italics course,
Of
claim and
R.A.V.did not involve a title VII
thus its pronounce-
ment on whether such a claim
the First
would survive under
Amendment is
Moreover,
dictum.
was
referring
what Justice Scalia
when he explained
that,
words,
in addition to
some “other words” could
fighting
produce
valid
constitutionally
hostile work environment claim under title VII is
conundrum,
need
for us
enough
unclear. We
not unravel this
however. It is
viewed
concurring opinions
recognize
majority
“[w]hen
all nine
it
Justices
in R.A.V. assumed
conjunction,
appears
participating
that the core Title
that creates a discrimina-
against
VII prohibition
(Fallon,
hostile work environment would
constitutional muster.”
torily
pass
Thus,
Harassment,
12.)
Ct.
although
Sexual
Rev.
Sup.
R.A.V.did not “hold” that
violative
title VII
harassing workplace in the case
the court would so hold.
suggest
unprotected speech,
opinions
hint
its views
it
next
further
when
year,
gave
decided Harris v.
Inc.
It to be. Court in Harris found where simply was not The Supreme VII, in of title the abusive and hostile environment is created violation work to relief on her to show she ability entitlement is plaintiff’s dependent (Harris, 510 U.S. at S.Ct. supra, suffered injury. p. psychological [114 O’Connor, for the Harris nor 371].) majority, Neither Justice who wrote harass- or mentions whether Ginsburg, concurring separately, Justices Scalia alone, a of title VII consistent may constitute violation ing speech, standing with the First Amendment.5 Nevertheless, I find strands of analysis thus remains open.6 question that, which, if
in decisions taken indicate even together, several court high work environment majority point 5The at one noted that whether a hostile abusive Harris factors, harassing including of several whether requires exists under title VII consideration (Harris, supra, p.at S.Ct. offensive 510 U.S. conduct is severe “or mere utterance.” 377, Harris, R.A.V., supra, argues 510 U.S. Fallon that after 505 U.S. 6Professor 17, First Amendment virtually might hold that the “it inconceivable environment is creating protected hostile abusive work speech racially Amendment, restrictions such be to some speech may subject I turn discussion of these strands. consistent with amendment. now to
B.
in the Workplace
Speech
course,
Of
in
wholly
government regulation
is not
speech
protected
all
the location of
to the degree
protection,
relevant
places;
speech
if
under the
(Frisby
will receive
First Amendment.
any,
Schultz
(Frisby)
487 U.S.
420]
limits,
ascertain what
if
we
any, may
speech,
placed
protected
[“To
have often focused on the
of that
the nature of
‘place’
speech, considering
the forum
seeks
v. City
Heights
Lehman
Shaker
speaker
employ.”];
418 U.S.
302-303
L.Ed.2d
(plur.
770]
nature of
the forum
interests involved have
opn.)
conflicting
[“[T]he
remained
determining
afforded
important
degree
protection
Amendment to the
question.”].)
[First]
For
uttered
afforded
traditional
forum is
example,
public
highest
from state
degree
protection
(Perry Ed. Assn. v.
regulation.
Perry
948, 955,
Local Educators’ Assn.
(Perry).) Streets
been held in
“have
parks
immemorially
and,
mind,
trust for the use of the
time out of
been used for
public
have
citizens,
purposes
assembly,
between
and dis-
communicating thoughts
*31
496,
cussing
(Hague
(1939)
v. C. I.
307
515
public questions.”
O.
[59
964,
S.Ct.
1423].)
83 L.Ed.
Content-based restrictions on
uttered
speech
in a traditional
forum must be
public
tailored to achieve a
narrowly
compel-
state
ling
interest.
at
(Perry,
955].)
45
S.Ct. at
supra,
p.
p.
[103
well,
may occur in
fora
Speech
as
but in such cases the
nonpublic
government is
permitted
reasonable restrictions on
even
place
speech,
based on
(See
its content.
Jones v. North
Carolina Prisoners’ Union
forbids the
of Title
imposition
sexually
speech.”
VII
for broad
(Fallon,
Harassment,
9.)
Sup.
p.
Sexual
Ct.
at
Rev.
in
Not all
occurs
traditional
even
speech-related activity
publicly
public
Americans,
deal
fora.
most adult
of time is
at
nonpublic
great
spent
For
at issue
this case
at
work. That
occurred
speech
plaintiffs’ workplace
because the
Court
occur-
significant,
recognized
has
Supreme
in the
considerations that sometimes
ring
workplace presents special
permit
First Amendment
For
in Connick v.
greater
rights.
restrictions on
example,
Myers (1983)
(Connick),
(Rankin) clerical First Amendment for con- rights employee’s [violation her on the that she stable to fire while expressing opinion, job, disagreed Rosenthal, killed]; with the he would president’s policies hoped The Strange Permissible Content Discrimination Under the Amendment: *32 L.Q. Case Const. 550-551 Hastings Public Employee that Connick and Rankin in different Connick and [criticizing arguing “point directions”].) and his or her
The intersection of an individual’s
place
free
in
v. Letter
rights also
CSC
Carriers
appeared
case,
(Letter Carriers). In that
the high
S.Ct.
37 L.Ed.2d
[93
796]
7323),
(5
7324(a)(2),
former
now see §
court held
Hatch Act U.S.C.
§
active roles
then
federal
from taking
which as
written prohibited
employees
office,
did not violate federal employees’
political campaigns
public
Although
under the First Amendment.
rights
activity
political campaigns
is core
that would otherwise be entitled to the
political speech
highest
constitutional
the court found substantial
reasons
protection,
public policy
the limitation on
justified
made
employee speech.
judgment
“[A]
[was]
over the last
that it
interest
country
best
of the
century
country,
essential,
indeed
that federal service should
meritorious
depend upon
perfor-
service,
mance rather than
and that the
influence of federal
political
political
on others and on the electoral
employees
(Letter
should be limited.”
process
Carriers,
2886];
at
S.Ct. at
but
see Bauers v. Cornett
p.
p.
[93
(8th
1989)
Cir.
865 F.2d
that Hatch Act was
[explaining
Thus,
amended after
Carriers].)
Letter
strong public policy
avoiding
coercing
to work on
public employees
restric-
political
justified
campaigns
tions on
(Cf.
Amendment
employees’
rights.
v. United States
Snepp
(1980)
Thus, in order to vindicate sufficiently weighty public policies governing court has in workplace, high found the First Amendment past rights employees above, must sometimes give In the cases way. described however, the government restricted the directly public employees. Not so with NLRBv. Gissel Co. Packing U.S. 575 case, (Gissel). In that Sinclair private Com- employer, faced a pany, union organizing its workers. When the campaign among president Sinclair first learned of the Company he to his campaign, spoke employees, attempting dissuade them from a union. He stated that joining “ ” the workers were forgetting ‘lessons of the when a strike past’ had shut down the for three months and plant had then plant reopened “ ” contract; without a union was still on ‘thin ice’ finan- company “ that a cially; ”; strike ‘could lead to the closing plant’ because of their skills, and the age limited usefulness of their the workers would not find if the ready employment (Id. closed. plant 587-588 pp. 1926].) election, In the weeks to the leading up sent company each of the workers letters and (Id. to the same pamphlets effect. at pp. election, 588-589 S.Ct. at When the union lost the it filed to the objections employer’s communications. here,
As the National pertinent (NLRB) Labor Relations Board found Sinclair Company’s communications with its workers violated section 8(a)(1) Act, of the National Labor Relations codified at United States *33 158(a): Code section “It shall be an unfair labor for an practice employer— with, restrain, to interfere or coerce in the exercise of the employees [H] in of United Code section 157 this title.” Title States rights guaranteed views, 158(c) “The of or any argument, section provides: expressing opin- thereof, written, ion, or the dissemination whether printed, graphic, form, evidence of an unfair labor visual shall constitute be practice if no under of the of this such contains any provisions subchapter, expression of threat of or force or of benefit.” The United States Court reprisal promise for the First Circuit affirmed the NLRB’s ruling. Appeals Court, On certiorari before the Sinclair argued Supreme Company of these to the of its violated his First speech president rules application The court the rights. high argument, reasoning Amendment rejected course, of assessment the of “[a]ny employer expression, precise scope (Gissel, must be its relations made in context labor setting.” supra, 1942], added.) at at U.S. italics p. p. Supreme Amendment must balanced be emphasized rights employer’s to the court rights freely,” “the associate against equal employees must “take into account the economic of the on their dependence employees court, (Ibid.) In such a said the free setting, speech rights employers.” must be to “the election relating workplace distinguished speech . . voter or the enactment of . where legislators legislation independent as a freer to be freer to listen more class objectively employers short, (Id. at talk.” at 617-618 In because the speech pp. issue at restrictions on could be speech occurred some workplace, tolerated that if to other settings. would impermissible applied course, Of retain First Amendment while on rights job employees Finkel, 378; 507); Branti Gissel (Rankin, supra, supra, the First did not create a Amendment. general “workplace exception” Still, “in Court validated under congressional power, Gissel Clause, to the work Commerce content-based restrictions in impose embodied in the Constitution. The Gissel effectuate values greater place its understanding unique Court’s rested on holding, large part, and the even subtle nature the employment relationship potential context undermine economic which promotes coercion in this valid policy Sight, supra, Rutgers constitutional interests.” No Collision in (Sangree, 520; Fallon, Harassment, Ct. see Sexual supra, Sup. L.Rev. also of a doctrine Rev. at p. [advocating development Volokh, features but see to distinctive “responding workplace”]; Harassment, [reading L.Rev. at 1820-1822 39 UCLA Workplace pp. more Gissel much narrowly].)
Thus, Connick, Carriers and Gissel demonstrate the Supreme Letter governing workplace— that strong Court’s recognition public policies
159 on free both some limitations the public—may justify speech private is consistent the reality This view with rights employers employees. are not of as jobsites usually thought marketplaces workplaces (Balkin, the ideas Some Realism Plural- political social About testing (1990) to the Duke L.J. ism: Realist First Amendment 1990 Legal Approaches 375, 423 some view as different from [suggesting may speech workplace and, therefore, the political generally]), importance speech preserving aas forum where free will other speech outweigh important rights constitutional diminished. considerations is
C. Are a Audience Employees Captive In to addition court free limitations at high authority recognizing speech another strand that recurs workplace, analytical frequently Supreme Court decisions is here. The Court has number relevant in a Supreme cases that when an audience reasonable to recognized has no way escape an unwelcome hearing greater restrictions freedom message, speaker’s Stated tolerated. even if the expression differently, enjoys speaker she right to free he or has no to speech, corollary right force people listen.
The of a relevance audience to of First captive determining scope Amendment by Frisby, 487 U.S. protection exemplified supra, case, 474. In that Court an ordinance that Supreme upheld prohibited focused front of home. picketing individual’s Although picketing characterized generally as core v. political (Carey Brown 447 263]; U.S. 460 S.Ct. 65 L.Ed.2d Shuttlesworth Birming- [100 935, 939, ham 162]) and was (the so in Frisby resident was because he targeted was who physician abortions), the performed First Amend- explained “[t]he ment government as intrusive when permits prohibit offensive speech audience avoid ‘captive’ (Frisby, cannot the objectionable speech.” at S.Ct. at p. p. court high to similar concerns Bethel Dist. No. responded School (Bethel v. Fraser School, School). In Bethel court on a high upheld discipline imposed high school student who laced sexual at a school gave with innuendo students were to attend. assembly many Although required relying on the at largely presence of children court also stated assembly, high that school authorities in loco children— acting parentis protect “[should] ain audience—from inde especially captive exposure sexually explicit, cent, (Id. 3165], added.) lewd italics speech.”
That the of in important determining a audience presence captive was also discussed in Rowan degree of Amendment proper protection 1484, 25 v. Post U.S. 728 S.Ct. L.Ed.2d Dept. 397 736] [90 Office Rowan, (Rowan). of a In the appellants challenged constitutionality federal law to their name removed householders be permitted request not themed lists so receive mailing they might sexually mailings. law, . “We . . stating: categorically reject upheld to right vendor has under Constitution otherwise argument send unwanted material into the home of another. If this prohibition operates ideas, to the flow of even valid the answer is that no one has a right impede to on an That are often even ideas we press ‘good’ unwilling recipient. of to outside the home ‘captives’ sanctuary subject objectionable (Id. . . not must at 738 . does mean we captives everywhere.” p. S.Ct. at p. [90 Rowan,
In numerous cases Frisby, addition to Bethel School other cited a factor on free have an audience’s limitations “captivity” justifying (FCC 438 S.Ct. v. Foundation U.S. 748-750 speech. [98 Pacifica 3026, 3040-3041, 57 (Pacifica) (plur. opn.) [possibility 1073] in adults tune to radio broadcast contain nonconsenting inadvertently might broadcast at indecent id. ing speech justified precluding during day]; p. Powell, (conc. J.) [“Although S.Ct. at pp. opn. [98 3045-3046] adults to absorb the blow of First Amendment first require unwilling are in away offensive but when before turn they public they protected speech , home.”]; order City . . . different of values obtains v. Erznoznik 2268, 2272, Jacksonville S.Ct. L.Ed.2d 125] [95 (Erznoznik) “the degree on when justified captiv [restrictions to makes it for the viewer or auditor avoid unwilling expo ity impractical sure”]; (conc. J.) id. at of Douglas, at S.Ct. p. opn. p. 2277] that “a ordinance could be utilized within [endorsing narrowly view drawn audiences”]; the interests of captive constitutional boundaries protect at Lehman v. Shaker 418 U.S. at City Heights, supra, pp. riders of transit are a [recognizing opn.) public captive (plur. 2716-2717] at cars]; id. audience inside the at 306-307 advertising placed pp. (conc. J.) bus riders are a Douglas, recognizing captive opn. 2719] [also audience]; 403 U.S. 21-22 supra, pp. Cohen California, pp. message, those to the defendant’s objectionable [noting objecting exhibited on his could avert their jacket, simply eyes].) defend- the restriction on
The relative
here
captivity
plaintiffs
supports
they
at their
because
job
ant Lawrence’s
Plaintiffs were
present
speech.
but
on
Latino heritage,
Lawrence’s
views
their
wished
hear
particular
his
free to
confronted with
away
neither were
walk
when
they reasonably
racial slurs.
could
have avoided
undesired
Although plaintiffs
speech by
their
more
tolerant
quitting
jobs
seeking
racially
with
employment
the cases discussed above indicate the
audience doctrine
supervisors,
captive
is not reserved for situations in which listeners are
unable to
physically
leave, such as
The Constitution
inmates
passengers
airplanes
prison.
does not
to sacrifice their
to avoid a
require plaintiffs
racially
clamorous work environment
more than the doctor in
any
Frisby, supra,
home,
School,
U.S. 474 was
to move from his
students Bethel
required
school,
supra,
675 were
to leave
or the
required
passengers
Lehman v.
Shaker
City
Heights,
Most of the cases cited above did not concern concededly solely captive audience. Frisby, and Rowan relied in addition on the increased Pacifica privacy interest one’s home. (Frisby, 487 U.S. at supra, 484-485 pp. [108 2502]; S.Ct. at p. Pacifica, supra, 438 U.S. at fn. 748-749 pp. [98 3031, 3040]; Rowan, S.Ct. at pp. U.S. at 738 at supra, 397 p. p. [90 home”]; “the [emphasizing of the cf. sanctuary Wilsonv. Layne 1692, 609-610 [119 818] [“The Fourth Amendment embodies this centuries-old for the principle respect .”].) of the home . privacy . . Bethel School relied also on the Pacifica School, (Bethel children. presence U.S. at supra, 478 683-684 pp. [106 3164]; S.Ct. at Pacifica, at p. supra, fn. 749-750 S.Ct. at pp. pp. [98 3030-3031, involved, well, 3040-3041].) Pacifica, Rowan Erznoznik lewd or indecent at speech. (Pacifica, 739-740 S.Ct. at supra, pp. p. Rowan, 3035]; Erznoznik, 1487]; at S.Ct. at supra, p. pp.
U.S. at S.Ct. at p. drive-in theater p. prohibited 2271] [ordinance with screen visible from street from film exhibiting public any portraying nudity].) of the applicability audience doctrine to captive harassing speech is, moreover, debated workplace commentators. by legal (Compare
Volokh, Harassment, Workplace UCLA L.Rev. at supra, 39 1832-1843 pp. audience doctrine should not to the [captive with apply workplace], Sangree, No Collision L.Rev. at 515-518 Sight, supra, Rutgers pp. [rejecting Volokh, Law Professor Volokh’s How Harassment Restricts argument], Free L.Rev. at 571-572 Professor Speech, supra, Rutgers pp. [replying cf. U.S. at Sangree]; California, supra, Cohen v. course, the mere listeners or presence unwitting presumed
1786] [“Of not viewers does serve all automatically justify curtailing speech capable Nevertheless, offense.”].) discussed giving authority least, establishes, at above that the relative firmly captivity ip not audience is a relevant and if important, determining factor dispositive, whether restrictions on are government permissible here, under the First Amendment. I find although Applying concept defendant Lawrence desire to offer low his apparently opinion do Latino workers his not wish place employment, plaintiffs apparently Further, it. to walk away hear were free plaintiffs easily Lawrence’s avert their cover their ears or avoid otherwise speech, eyes, his unwanted I conclude status as forced message. hearing plaintiffs’ recipi ents of Lawrence’s to the conclusion that restrictions lends support hand, on his in the circumstances at constitutionally permissible *37 limited of to and the where is regulation speech solely workplace offended constitute audience. recipients captive Time,
D. The Here Is to a Injunction Similar Place and Manner Regulation related, A but basis for in these countenancing separate, creates circumstances is that an that injunction restricting racially speech time, is and hostile work environment to a analogous permissible place matter, manner restriction on As a in even a tradi- general speech. time, to tional forum be reasonable and manner subject public may place 955].) at restrictions. 460 U.S. S.Ct. at Such (Perry, supra, p. p. content-neutral, must serve a interest restrictions be significant government (Ibid.) In a and “leave alternative channels of communication.” open ample forum, for its also “reserve the forum government may nonpublic otherwise, on regulation intended communicative or as long purposes, to because merely is reasonable and an effort expression suppress (Id. officials view.” public speaker’s oppose Time, and manner have been public and rules generally applied place business, defendants’ fora. As a nonpublic private employer’s place forum; is neither a nor a it nonpublic private property. workplace public Nevertheless, “on one Court has at least occasion applied [the time, and to conduct on occurring manner private property” place doctrine] Theatre, Inc. (Barnes v. Glen The Playtime to Renton referring (plur. opn.),
atres,
29]), and
adapting
I the state’s interest in begin restricting workplace speech with “the announced that it is hostile work environment. state has racially and of this state that it is necessary safeguard public policy protect obtain, seek, and hold of all right persons opportunity (Gov. account of race . . . .” without discrimination or abridgment Code, 12920.) discrimination “foments The state such recognizes § unrest, its of the fullest utilization of domestic strife and state deprives advance, substantially adversely capacities development in general.” affects the interest and the public of employees, employers, (Ibid.) discrimination, course,
Of
the elimination of racial
even
private parties
entities,
has often been found to be a
interest of
governmental
highest
(See,
Concrete Co.
Restricting
of a
hostile work environment
leaves him
alternatives
racially
ample
ductive
Because I
with
agree
his beliefs.
advocating,
simply stating
espousing
of the Court of
decision revers-
the
affirmance
opinion’s
Appeal’s
plurality
the case to
the trial court to “redraft the injunction
ing
remanding
permit
of this
in a manner that . . . limits its
the
majority
scope
workplace,”
in
should be limited to
in the
court
the
this case
agrees
injunction
free to
and at
time outside
any
Lawrence is thus
speak anywhere
workplace.
home,
sidewalk,
it be in his
on the
of his
whether
employment,
place
local restaurant or on the Internet.
his
park,
Center,
Health
Inc.
Madsen v. Women’s
The down although striking parts Supreme zone, limitation was a of a 36-foot buffer finding upheld requirement time, As valid and manner restriction speech. pertinent place here, from court noted the are not high “petitioners prevented question their one of several different message any ways; they expressing (Mad it within the 36-foot buffer zone.” simply prohibited expressing sen, fn. 2 S.Ct. at If the only, in the instant case is limited on remand to apply himto alternative channels of Lawrence will have similarly ample open communication. time, admit- and manner decisions Court’s existing place case, for not does this case not involve only do not wholly govern
tedly forum, is not content-neutral. “The Supreme here public time, and manner regulations Court has stated . . . repeatedly place, *39 review.” in order to receive deferential judicial must be content neutral 16-17, Harassment, fn. Sexual Ct. Rev. at supra, (Fallon, pp. 1994 Sup. is content omitted.) determining neutrality principal inquiry “[The] refer- a ‘without regulation has government adopted whether ” (Madsen, supra, 512 U.S. at p. ence to the content of the regulated speech.’ 2524].) look to the government’s purpose S.Ct. at “We thus 763 [114 (Ibid. S.Ct. at the threshold consideration.”
165 discrimination of racial is the elimination here The state’s purpose concerned with is clearly FEHA thus at the workplace. harassment classified as hence, cannot be the of harassing speech; content to conclude commentators led some This fact has content-neutral. harass time, doctrine in the and manner on the place reliance Harassment, UCLA (Volokh, supra, Workplace ment setting misplaced. Browne, St. 1826-1828; 52 Ohio as Censorship, Title VII L.Rev. at pp. no Supreme of this 521.) beginning opinion, As noted at L.J. at p. court how that do not know we accordingly, decision is directly point; here. balance the diverse interests present would wholly nature of the injunction disqualifies the content-based Whether case need not to this time, doctrine from any application and manner place decided, Instead, consider it is sufficient to components however. be the injunction assessment of whether as relevant to the overall doctrine those compo- First Amendment When rights. violates defendant Lawrence’s of communica- alternative channels state interest and nents—a compelling to be sought enjoined the facts the together tion—are considered with were and the of the unwelcome speech occurred in the recipients workplace audience, case for strong injunction appears. upholding captive state’s contrary holding. must consider the We implications is compelling, interest in racial discrimination in eradicating workplace determination that such discrimination and the state has made a reasonable harmful to “the interest causes “domestic strife and unrest” and is Code, (Gov. 12920.) and the in general.” § employees, employers, public case, as it is undisputed The state’s interest is to this fully applicable at the where both plaintiffs occurred question to listen to Lawrence’s Plaintiffs do not wish defendant Lawrence work. of their Latino them on account constant stream8 of verbiage denigrating matter, free, to leave their jobs but are not as a heritage, they practical hand, Lawrence, on the other of his racial slurs. targets avoid being the sole with exception free to his mind anywhere everywhere, speak the workplace. case, them is undeniably and balancing interests are in in this
Diverse play violates Lawrence’s a difficult task. Were we to find harassment, the courts have held ‘sufficiently pervasive’ determining constitutes 8“In what trivial, occasional, isolated, plaintiff rather sporadic, cannot be that acts of harassment generalized nature. routine or a repeated, of harassment of a pattern must show a concerted (Fisher Hospital Cal.App.3d v. San Pedro Peninsula [Citation.]” 842]; Cal.App.4th Muller v. Automobile Club So. Cal.Rptr. California Savings Bank v. Vinson Fisher]; see also Meritor Cal.Rptr.2d [quoting 573] 2399, 2405, job [finding harassment on the must sexual VII].) liability title can be under “sufficiently pervasive” severe or before there *40 Amendment we would be those rights, concluding rights outweigh rights of the Latino to be free of racial unwanted discrimination. Like plaintiffs however, Lawrence’s asserted interest in free interest also speech, plaintiffs’ XIII, Const., finds (U.S. in our federal Constitution recognition Amends. XIV, XV; 445, (1976) see Fitzpatrick v. 453 & fn. 9 [96 Bitzer 2666, 2670, under [Congress exercising powers section 5 of the 14th Amendment it when relevant amendments to passed case, title VII]). Given the constellation of factors in this no clear present reason Lawrence’s free why should over appears speech rights predominate the state’s and the individual antidiscrimination similarly plaintiffs’ weighty interests. Amendment Lawrence’s First free
Balancing with speech rights to be let alone at equally weighty right their free of plaintiffs jobsite, discrimination, racial I find the several factors in this case— coalescing audience, in the speech occurring workplace, unwilling captive discrimination, state interest in racial compelling eradicating ample alternative for the venues the conclusion that the speech speaker—support if on remand to the injunction, sufficiently narrowed to apply only, will constitutional muster. pass
IV remand, found the narrowed on would not Having injunction, properly Amendment, violate the I reach the same result under the California I, 2, Constitution. (a) Article section subdivision of the state Constitution write and his or her provides: “Every may freely person speak, publish sentiments on all for the abuse of this A subjects, being responsible right. law not restrain or abridge We have liberty speech press.” observed this state constitutional free past guarantee protective “[a] (Wilson more definitive and inclusive that the First Amendment” provision (1975) v. Court 13 Cal.3d 532 P.2d Superior Cal.Rptr. 116]; see also v. York Times Co. 42 Cal.3d Blatty New 1177]) 728 P.2d and its Cal.Rptr. plain meaning prohibits restraints on 112 Cal. (Dailey Superior 458]; P. Pines v. Tomson Cal.App.3d Cal.Rptr. 866]). Lawrence that even if the under the argues permissible Constitution, federal it is under this state constitutional invalid provision, which than is afforded the First greater provides protection Amendment. terms, the First Amendment is in absolute it has not been written
Although I, (a) is true for article section subdivision so The same interpreted. *41 Court, Superior v. As we Wilson explained state Constitution. restraint upon do not. . . suggest prior at 661-662: “We Cal.3d pages re recognize prior The decisions can never be justified. publication ex For circumstances. extraordinary under some be may straints imposed the disclosure that the government may prohibit it has been said ample, that may utterance of words secrets in time of war prevent military Furthermore, restraining an have the effect of force. [Citation.] (see, e.g., rights circumstances protect private issue in some may speech (1942) 20 Cal.2d 511-512 etc. Union Bros. v. Service Magill Bldg. (Securities and commercial 542]) or to practices P.2d prevent deceptive (2d 1971) 446 F.2d Co. Cir. Sulphur Comn. v. Texas Exchange Gulf words, can justify reason 1306).” strong policy In other a sufficiently public afforded by under the heightened protection a restraint on even speech the state Constitution. above, in the state set forth
As the federal constitutional analysis with are at constitutional interests constitutional as well two analysis powerful one’s freedom to write issue. In addition to the “speak, protection on all the state Constitution—like his or her sentiments subjects,” publish mandates to the federal Constitution—also the Fourteenth Amendment Const., I, 7, art. (Cal. § not be “denied laws.” equal protection people Moreover, (a).) guarantee as the state Constitution’s free speech subd. just charter also than federal our state its greater protection counterpart, provides in the work- racial discrimination heightened against provides protection I, Article not be disqualified section 8 place. provides person “[a] business, vocation, or be- a entering pursuing profession, that free cause of . . . race . . . .” It is thus no answer to observe Constitution, document under the state because same greater rights racial discrimination in the also grants greater against workplace. protection consti- once faced a difficult balance between competing We are with again tutional values. confluence limitation on defendant factors that justifies to the States Consti under the First Amendment United
Lawrence’s speech ex the California Constitution. For tution the same result under supports an unwanted hearing that a listener is unable to escape ample, potential free factor in the evaluation of has been cited as message significant (1973) 10 Cal.3d in this state. In Braxton v. Court rights Municipal 697], found that regulation 514 P.2d this court Cal.Rptr. “necessary prevent or loud used in demonstrations was bullhorns speakers audiences in classrooms the work of captive substantial interference with (Id. 149.) City San Jose Similarly, and research facilities.” 205], the Cal.Rptr.2d appel Superior Cal.App.4th that, zone a 300-foot buffer ordinance in creating late court city approved clinic, around the residences of staff members abortion declared “ ” (Id. audience” ‘targeted creates situation.’ picketing activity “captive 341.) an audience’s to avoid unwelcome or Clearly practical ability is relevant to of an unpleasant evaluating validity under the state Constitution. *42 free under
Notwithstanding heightened protection speech rights enjoy Constitution, time, the state and manner restrictions are also recog place (Robins (1979) nized under our state charter. v. Center Pruneyard Shopping 899, 854, 341]; 23 Cal.3d P.2d v. Dulaney Municipal 910 592 Cal.Rptr. [153 777, (1974) 1]; Court 11 Cal.3d 85 520 P.2d v. Savage Cal.Rptr. [112 302]; Trammell Crow Co. 223 1572 Cal.App.3d Cal.Rptr. [273 (N.D.Cal. 1991) Planned Parenthood v. Catholic 765 Holy Angels Church 617, 625.) here not uttered in a F.Supp. Although was public content-neutral, forum and the is not I find the two remaining interest, factors in the state and significant alternative equation—a ample avenues of communication—are relevant under the state Constitution. noted,
As the California itself Constitution recognizes importance Const., I, (Cal. 8.) racial discrimination in the art. eliminating workplace. § Our has declared such discrimination odi- Legislature similarly workplace Code, Code, (Gov. [FEHA]; ous. see also Civ. 51 persons § § [“All free no matter within this state are and and what jurisdiction equal, race, accommodations, their . . . ... are entitled to the full and equal facilities, in all business establishments of advantages, services privileges, whatsoever.”].) kind This court has also observed that the every “policy to seek and free of is funda- right hold promotes prejudice (Commodore mental.” Home Inc. v. Systems, Superior law, 912].) Cal.3d 649 P.2d State both Cal.Rptr. statutory constitutional, thus in the elimination of interest recognizes compelling racial discrimination in the workplace. short,
In I find defendants’ under the California Constitution do not rights the conclusion the must be set aside. compel
V
homes,
are
our
we enter a
world where we
hurly-burly
When we leave
sometimes
to endure the
and undesirable opinions
required
unpleasant
sometimes at-
entreaties of others.
such unwelcome
Unfortunately,
race,
(See,
of our
or ethnic
gender
heritage.
e.g.,
tacks us on
basis
Ohio,
Klux Klan leader made
Brandenburg
[Ku
African-Americans];
Mitchell
remarks about
Contento v.
derogatory
a “bitch”
called plaintiff
Cal.Rptr.
28 Cal.App.3d
591] [defendant
(1977)
No factor in this case the restraint on single justifies present speech indeed, conclu- another case different facts lead to different may posing However, above, sion. for all the reasons stated I conclude that Lawrence’s even if nevertheless be to the constitutionally may subject speech, protected, above, time modest and that an injunction, restrictions discussed place remand,9 narrowed on not violate his to freedom right will properly both the Amendment to the United States guaranteed to him speech by I, (a) Constitution and article section of the California subdivision Constitution.
MOSK, I dissent. J.
The conclude that a remedial under the Fair injunction Employ- plurality Code, (FEHA) et a list (Gov. banning ment and Act Housing seq.), § “exemplary prohibited derogatory epithets,” 9Insofar as the list of racial or ethnic which injunction context of an appellate provide, court directed the trial court to is fashioned in the of, se, of, against racially per perpetuation directed not individual words but the creation environment, hostile work I concur in this limitation as well. Such a list should be intended as prohibiting specified utterance of words explanatory, illustrative rather than mere regardless way, types notice of context. In this defendants will have additional what vagueness in an prohibited by injunction, reducing any potential are inhere partially speech. that even restricts words from use in the derogatory workplace, permissible remedy discrimination defendants employment John Lawrence and Avis Rent A (Avis). Car Inc. I System, our most cherished constitu- disagree. Among tional is that if offensive—should be principles speech—even protected unless, until, harmful it a demonstrable effect. produces I,
Both the First Amendment of the United States Constitution and article (a), section subdivision of the California Constitution restrict the use of content-based restraints on The order at issue prior speech. here—enjoining any future use in the words—constitutes such a workplace specified just restraint. It restricts based on the mere impermissibly assump- tion that these words will create a inevitably hostile and abusive work environment discrimination. is this amounting Nor it a salvaged by restraint on conduct rather than labeling speech. error is because plurality’s particularly glaring they deciding vacuum,
matter in a contextual without benefit of a factual record. They court, thus overlook the of an where free are at duty appellate speech rights stake, to review the trial court’s and the record independently findings whole to assure that any injunction narrowly tailored justified by compelling That is no less in a matter necessity. duty involving imperative As the United States “The workplace. recently emphasized: real social often on a impact behavior constellation of depends *44 circumstances, not surrounding which are expectations, relationships recitation of the used or the acts fully captured by words simple physical Services, (Oncale v. Sundowner Inc. 523 U.S. performed.” Offshore 998, 1003, Here, 81-82 201].) 140 L.Ed.2d we nothing know of the circumstances. We do not even what offensive surrounding know made, whom, remarks were or when. All do we know is parties words”—i.e., have that the remarks did not amount to agreed “fighting involves otherwise has Lawrence protected speech—and not made remarks to any similarly offensive Avis apparently employees since 1992.
Like I abhor discrimination in form. But I feel my colleagues, any equally that we cannot use the of the courts to strongly instrumentality penalize whom, said, It before we know what was and with what speech effect. advance, should be obvious that we not do so in based only of future harm. predictions
I use The crux of the is that the injunction forbidding plurality opinion of a as it issued list of words does not amount to a restraint so was prior long It endorses the discrimination. after a determination of jury past employment American Union of Northern Civil Liberties of amicus curiae formulation “a fair judicial here because California that was properly enjoined I that a of unprotected.” has determined repetitive pattern process am unpersuaded. is used ‘to describe administrative judicial
“The term restraint’ ‘prior issued in advance orders certain communications when forbidding time restrain that such communications are to occur.’ Temporary [Citation.] forbid orders and court orders injunctions—i.e., actually ing permanent (Alexander v. activities—are classic restraints.” examples 2766, 2771, United States definition. It here falls within that was squarely transformed into because it was issued after something acceptable simply discrimination. judicial finding past employment Justice, to the Chief constitutional muster According injunction passes because it their ac- defendants from unlawful simply precludes continuing It does more than that. It otherwise tivity. directly targets protected speech, future use of a list of offensive words in the forbidding any workplace—even outside the and even if welcome or presence overtly permitted. plaintiffs course Although insists that it would plurality opinion prohibit illegal conduct, (See in fact content. it on the basis of regulates speech expressive (5th 1995) El Paso Mun. Police Ass’n. Cir. 51 F.3d DeAngelis Officers 591, 597, 7.) fn. Moreover, it is not true that and all future use even of offensive any will amount to a continuation of the same epithets necessarily unlawful concedes, utterance of a racial As the “not activity. plurality every opinion slur in the violates the FEHA or Title VII the Civil Act Rights [of *45 ante, 130; (Plur. (42 U.S.C. 2000e et at see Fisher p. 1964 seq.)].” opn., § 590, (1989) v. San Pedro Peninsula 214 608 Hospital Cal.App.3d [262 17, 842]; (1993) Harris v. Inc. 510 U.S. 21 Systems, Cal.Rptr. [114 Forklift 367, 370, an . . S.Ct. 126 L.Ed.2d utterance of . epithet 295] [“ ‘[M]ere does not which offensive an engenders feelings employee,’ [citation] to Title affect the conditions of VII.... sufficiently implicate Likewise, if the does to victim not environment subjectively perceive abusive, the conduct has not altered the conditions vic- actually violation.”].) no Title I am not tim’s and there is VII employment, persuaded that a to verbal judicial finding subjected were employees previously 172
harassment in violation of FEHA could restraint on justify prior expression not to words.”1 amounting “fighting
The draws plurality opinion several United States analogies Supreme Court decisions. None inis point.
Thus, the
relies on several decisions
limited
plurality opinion
involving
materials,
remedies
injunctive
the sale or exhibition of
against
obscene
Books,
1325,
(1957)
Inc.
including Kingsley
v. Brown
unavailing. constitu- Supreme of a restriction on commercial tionality of an speech illegal support (Id. commercial at activity. 2560].) S.Ct. at pp. 388-389 p. Again, [93 United States that the order not emphasized endanger “[did] and did not arguably protected court “to as to speech” require speculate (Id. the effect of the in the future. at S.Ct. at publication” Center, 2561].) Madsen v. Women’s Health Inc. 593], L.Ed.2d also relied on majority, inapposite; Madsen, content-neutral,
unlike the issue here is not speech nor can it be said that the burdens no more injunction than necessary, since it forbids use of any words.2 particular contrast, the at issue constitutes a broad touch
By prohibition that, offensive, on core It ing protected speech. words applies although 1“Fighting very injury words”—“those which their utterance inflict or tend to incite an peace”—are safeguarded by (Chaplinsky immediate breach of the the federal Constitution. Hampshire Signifi v. New 315 U.S. 86 L.Ed. cantly, plaintiffs fighting conceded that the offensive at issue here did not consist of words; superior agreed. any court apparently superior Nor did the court find “real and Lawrence, injury” by anyone immediate threat of future had who not harassed Avis since 95, 107, 1660, 1668, (See Angeles Lyons 1992. Los fn. 8 consequences simply emotional of a act are not a sufficient basis for [“The defendant.”].) injury by absent a real and immediate threat of future In the record, absence of a we have no basis to conclude otherwise. 1993) (1st Carpenter length by 2Auburn Police Union v. Cir. 8 F.3d discussed at case, *46 plurality, guidance. barring no that a statute for the offers In which involved solicitation organizations, injunction benefit of law enforcement officers and there was no before the court; the the Appeals the United States Court of First Circuit observed that without
173 the by and are therefore shielded used to ideas or emotions be convey the First Amendment. a underlying there is bedrock principle “If Amendment, of an not the expression it is the government may prohibit disagreeable.” the itself or because finds idea offensive society idea simply 2545, 2533, 397, 105 414 S.Ct. (Texas (1989) Johnson v. 491 [109 1780, 15, S.Ct. 342]; (1971) 403 U.S. Cohen v. L.Ed.2d California 1788, facile that one cannot the indulge assumption 284] [“[W]e of a risk running sup without also substantial can forbid words particular ideas in the pressing process.”].) can amount to employ that the use of assuming derogatory speech
Even slurs, discrimination, even or vulgarity, ment I use of disagree anyfuture has a who by previously in the derogatory epithets workplace—even person constitutionally discrimination—can engaged proscribed. more, one, because the content of or of using That is offensive any effect of cannot be in advance: “The question list verboten words determined is, not, whether the First Amendment often protected Thus, line on the the between permissible content depends speech. incitation to crime violence advocacy impermissible depends, occurs, the the but on what exactly on in which also merely setting had to it utterance the is the content of the say. Similarly, speaker or an determines whether it is protected ‘fighting epithet unprotected ” (1976) comment.’ Mini 427 U.S. (Young v. American Theatres 2440, 2450, reason, 310], omitted.) For I would 49 L.Ed.2d fn. this heavy against hold fails overcome the presumption (Vance on Universal constitutional restraints validity prior speech. Co. (1980) Amusement
413];
Superior
(1975)
Cal.Rptr.
Wilson v.
Court
13 Cal.3d
657 [119
116].)3
468, 532 P.2d
example
particular injunction,
prior
of a
it
determine
restraint
concrete
could not
whether
904.)
summarily cite several federal
plurality
doctrine had been violated.
The
also
{Id.
(Robinson
injunctions;
single
upholding
exception
and state law cases
with a
v. Jacksonville
(M.D.Fla. 1991)
1486),
F.Supp.
Shipyards,
comparable
Inc.
none involves a
Significantly,
widely
been
against
protected speech
otherwise
in the
Robinson has
workplace.
Comment,
(See, e.g.,
Workplace
Speech
Freedom
Harassment
criticized.
of
recent case of
[Robinson],
[“Thus,
the district court was
UCLA L.Rev.
Karner,
Harassment,
wrong.
Speech,
Captive
.
.
Political
Sexual
Workforce
637, 665,
ignored
Robinson court
basic [First Amendment]
83 Cal.L.Rev.
fn.
[“[T]he
conclusion.”].)
analyze
reaching
any
plurality
Nor
the cases cited
doctrine in
do
Constitution,
I,
(a),
light
section
California
question
article
subdivision
which,
against
speech.
post,
protection
prior
as discussed
broader
restraints
affords
concurring
attempt
exception
unpersuaded by
opinion’s
3I am also
create
using
against
discrimination
“strands
prohibition
restraints
case of
logic
concurring
analysis”
precedents.
from United
States
Thus,
upon
scrutiny.
unravels
v. St. Paul
II
I,
2,
(a),
But
need look no farther than article
we
section
subdivision
California Constitution to resolve this matter: “Every
may freely
person
write and
his or her sentiments on all
speak,
publish
subjects, being respon-
sible for abuse of this
A
right.
law
not restrain
abridge liberty
As
in the
I authored in
press.”
majority
Wilson
explained
opinion
Court,
v.
California article section subdivision plainly per- mits Lawrence and Avis for abuse of the but not holding right, responsible of a restraint. “The of this section is terse censorship by way wording prior and its so that construction is not needed. The vigorous, meaning plain write, of the citizen to his sentiments is right freely speak, publish unlimited, but he is at the hands of the for an abuse of that law responsible write, . . . It is that this cannot be right. right patent speak, publish, exercised, abused until it is and before it is exercised there can be no 458]; v. 112 Cal. P. (Dailey Superior responsibility.” Pines v. Tomson 160 Cal.App.3d Cal.Rptr. 866] restraint,’ the section does not use the term [“Although ‘prior plain I, (a) of the first sentence of article meaning section subdivision sanctions, i.e., ‘sentiments’ are from from all protected any prepublication restraints.”].) prior
As the in the Court of below ob- dissenting opinion correctly Appeal served: “Punishment for and are two different very suppression . . . California court has held . . . that things. No ever appellate persons can be restraint on forbidden to subjected prior legally speak speech, of fine or sent to rude or even immoral pain being jail, merely making comments that bad on the listener.” have effects might not, asserts, concurring imply any state or opinion .120 does 305] derogatory speech unprotected prior use of or that a content-based muster; high nor do the pass restraint such as the one issue here would constitutional suggest workplace may regarded public employees court’s decisions as a forum or analysis “captive concurring opinion’s audience.” The under the California Constitution is unpersuasive. Again, any exempting in the absence of sound constitutional basis for equally restraints, against concurring ignores our opinion from the restriction and, instead, theory precedents hopelessly attempts to construct a coherent point audiences, equal protection, captive random “strands” of doctrine taken from cases about time, restrictions, goal Our must be to construe place, and manner and racial discrimination. provisions regard precedent; public with careful has little constitutional otherwise personal policy assurance that the court’s decisions will not be influenced its members’ (See People Cal.Rptr. P.2d views. 21 Cal.4th 103-104 Jefferson J.).) (dis. opn. Werdegar, *48 the California Dailey—and to construe
The
attempt
plurality opinion’s
Thus,
on
ex rel.
fails.
it relies
People
on this
Constitution—narrowly
point
42, 57
(1976) Cal.Rptr.
Room Theatre
Cal.3d
Busch v. Projection
abate
328,
of an action to
600],
the constitutionality
550 P.2d
which upheld
I
at the
As stated
nuisance.
public
the sale or
of obscene material
display
incorrect; the
nuisance
time,
public
in
the decision in Busch was
my view
id.,
(See
at
to
constitutional muster.
p.
at
failed
issue
proceedings
pass
I,
Mosk,
. . . offend article
J.)
(cone. & dis.
of
proceedings
opn.
[“[S]uch
2,
that may
which
action
id.,
the California Constitution
prohibits
section
of
”];
also
at
63-74
or
of
or
see
pp.
‘restrain
abridge liberty
speech
press.’
Tobriner,
of
exhibition
(dis.
J.).)
It
also
it involved
distinguishable:
opn.
obscene, i.e.,
to be
to constitute
and films
magazines
adjudged
specific
or
therein
to
Nor did the majority
purport
apply,
unprotected expression.
cite,
Constitution,
I,
(a).
article
section
subdivision
even
California
The
also
on Goldin v. Public Utilities Commission
relies
plurality opinion
which,
289],
like
(1979)
Finally, the cites rel. Gallo v. Acuna opinion People plurality 596], Cal.4th P.2d upheld validity which Cal.Rptr.2d of an future under the injunction restraining activities of members gang common that Gallo wrongly law nuisance laws. I continue believe was id., Mosk, But, (See J.).) (dis. decided. at 1132-1148 in any pp. opn. event, it is address in Gallo did not unilluminating: majority any question on nor did involving any restraints Gallo involve prior application speech; Constitution, I, article 2.4 whatsoever of California section The that unless an in this concern issues plurality express matter, be I bringing will confined lawsuits. plaintiffs hope repetitive speech, plurality 4The First issue not free as the Amendment addressed Gallo involved “ association, i.e., against ‘[standing, erroneously suggest, but here freedom of sitting, walking, driving, gathering anywhere any view other appearing public or with ” Acuna, gang any (People defendant’ or other member. ex rel. 14 Cal.4th Gallo omitted.) underlying injunction by superior italics court in Gallo also issued words, phrases, gestures, symbols, engaging in other prohibited physical use of clothing gang; wearing it forms of communication that described the also forbade Mosk, id, (dis. J.) (See bearing opn. gang. the name or letters of fn. however, injunction, uncon injunction].) provisions Those were stricken as [quoting holding challenged on review Appeal, point stitutional the Court of and its was by this court. However, would not result. a mere consideration is of little weight policy restraints. light strong against presumption event, In I that the threat of be less any disagree litigation would repetitive effective in terms of than avoiding future discrimination Avis that an individual be As will possibility supervisor jailed contempt. demonstrates, action in this matter damages subject sanctions under FEHA if it amounts to discrimination. strong Faced with the costs of such com- high defending against suits—including *49 fees, and like pensatory damages, attorney punitive damages—employers Avis are it as a indeed. likely regard potent remedy
Ill reasons, For I would reverse the of the Court of foregoing judgment Appeal.
KENNARD, J. dissent. I tension,
Constitutional free are in undeniable if not speech guarantees conflict, with the to be free from discrimina- statutory rights employees verbal harassment that creates a tory hostile work environment. Although this tension debate has generated lively scholarly legal journals, United States Court has to address the issue. This case yet presents one of the the use of certain kinds of problem: injunctions aspect prohibiting content, future on the basis of its as a for hostile environ- speech, remedy ment discrimination. employment here,
As I will content-based issue explain, particular injunction both as drafted trial court and as modified the Court of Appeal, invalid under the free of both the and state guarantees federal speech Constitutions because the fails to establish that an restrict- record future a recurrence of the acts of wrongful ing necessary prevent Moreover, discrimination. even a need for some assuming shown, the here is content-based restriction could be invalid because it is not drawn to narrowly target only prohibited discrimination.
These defects are not curable. In particular, Appeal’s pro a list of forbidden “bad will adding to amend words” posal injunction by less an of free abridgment right speech. not make injunction any Indeed, I whether any injunction workplace expression question prohibiting views, views, abhorrent those can be reconciled with however particular government our system guarantees: free “[U]nder constitutional they because views simply dissemination of prohibit we distasteful, sanction such controversial, prohibition To disturbing. the Bill of Rights.’ of the philosophy be a complete repudiation ‘would Shasta-Diablo, (1995) Inc. v. Williams (Planned Parenthood [Citation.]” Kennard, (dis. opn. P.2d Cal.Rptr.2d Cal.4th J.).)
I discrimi- claiming employment this action brought Seventeen employees (FEHA) Act Housing Fair of the state Employment nation in violation their common Code, as defendants named (Gov. They 12900 et seq.). § one (Avis), and 10 Avis employees, Inc. Avis Rent A Car System, employer, here, plaintiffs to the issue raised John Of relevance of whom was Lawrence. Lawrence, who was them as that Avis had drivers alleged employed at the Francisco International Airport, station San Avis’s service assigned harassing demeaning by verbally created a hostile work environment *50 race, language and lack of English national origin them “on the basis of their Black, con- had that an Avis Kathy supervisor, skills.” also They alleged theft. of an investigation alleged ducted a discriminatory record, to case the the proceeded For reasons not disclosed by appellate verdicts, that the found jury the 17 By trial as to 12 of only plaintiffs. special of these four against had harassed and discriminated Lawrence unlawfully also discriminated With against. respect three of whom Black had plaintiffs, or should have found that Avis knew to three of these four jury plaintiffs, it. The awarded jury conduct and failed to stop known of Lawrence’s $25,000 against each of the three plaintiffs in emotional distress to damages discriminated, no but it awarded and Black had whom both Lawrence alone had discriminated. whom Lawrence to the damages plaintiff against verdicts, decided to the trial court returned these special After jury as that findings verdicts relief. special grant injunctive Interpreting and severe as harassment so continual had in acts of Lawrence “engaged “a court found conditions” for the four plaintiffs, alter the working do so in the future that he will based on his actions substantial likelihood Lawrence, has that he the court said restrained.” Referring “[i]f unless Latinos, that substantial likelihood there is a it four times four against done nor the court disputed But neither the plaintiff he do it . . . .” again will still one attorney only plaintiffs of defendants’ representations in any had not engaged Francisco and that Lawrence for Avis in San worked Defendants Avis of the lawsuit. during harassment pendency an unconstitu- Lawrence was objected injunction proposed but the court these tional of their free overruled abridgment speech rights, objections. court acts had consisted of discriminatory trial found Lawrence’s and the utterance of racial or ethnic touching derogatory epithets.
offensive relevant, here the trial court granted As permanent injunction prohibiting at, “from racial or ethnic directed using any derogatory Lawrence epithets of, and also “from any descriptive Hispanic/Latino employees [Avis]” uninvited intentional of said as touching long Hispanic/Latino employees, he is in California.” The Avis by injunction employed prohibited [Avis] . . . defendant John Lawrence to commit acts “allowing any [such] under circumstances in which it knew or should have known of such acts
. . ." from the of the judgment granting Lawrence Avis appealed portion The Court of found the over- injunction. Appeal permanent insofar as it other than at the broad restricted Lawrence’s activities work- and it in its “deroga- found place, injunction vague prohibition against defects, racial or ethnic To cure these the Court of tory epithets.” Appeal and remanded to the trial court to redraft the reversed permit limit its to the and to add “an list of scope workplace exemplary prohibited racial or ethnic such as those actu- derogatory epithets, specifying epithets used in the Lawrence.” ally determine
To even as limited the Court injunction, whether is an unconstitutional of constitutional free abridgment Appeal, *51 defendants Avis and this court for review filed rights, granted petition Lawrence.
II Constitution, to the The First Amendment to the federal made applicable (1931) (Near the Fourteenth Amendment v. Minnesota 283 U.S. states by 697, 625, 637, 1357]), that shall 732 S.Ct. 75 L.Ed. declares “Congress [51 .” This First make no . . . the freedom of . . . abridging law Amendment only legisla free restricts not guarantee power courts to but also the authority tures to enact laws of general applicability of a violations or threatened violations issue as remedies for injunctions Center, (1994) Inc. (Madsen decree. v. Women’sHealth legislative judicial Indeed, 2516, 2524, 753, 593].) L.Ed.2d 512 U.S. S.Ct. 129 [114 and discriminatory because risks “carry greater censorship injunctions ordinances,” the United States than do general application First Amend of general “a more stringent application somewhat requires (Id. at 764-765 restricting pp. [114 ment to injunctions speech. principles” 2524].) at S.Ct. p. of its is termed on the basis topic
An that injunction regulates speech v. Rec (Rosenberger invalid. content-based regulation presumptively 2510, 819, S.Ct. (1995) 515 U.S. tor and Visitors [115 Univ. of Va. 377, 382 2516, (1992) 700]; Paul 132 L.Ed.2d R.A.V. v. St. [112 2538, 2542-2543, 305].) that injunction regulates 120 L.Ed.2d An S.Ct. views or biases speaker basis particular and is likewise regulation about a is termed a viewpoint expresses topic invalid, Court regards because the United States Supreme presumptively of content discrimination.” discrimination as “an form egregious viewpoint Va., at supra, v. Rector and Visitors Univ. (Rosenberger [115 2516].) S.Ct. at p. basis of its content or
An on the injunction regulates speech viewpoint (Madsen v. is scrutinized more than a content-neutral strictly injunction. Center, Inc., 753, 2516, Health 762-763 S.Ct. Women’s 512 U.S. supra, [114 2523].) If an on content or is based injunction viewpoint, proponent must both that the to serve ordinarily “necessary show state that end.” interest and it is drawn achieve compelling narrowly 37, (1983) Ed. Assn. v. Local Educators’ Assn. 460 U.S. (Perry Perry [103 Center, Inc., 794]; Health S.Ct. 74 L.Ed.2d see Madsen v. Women’s 2524].) at supra, 763-764 S.Ct. pp. content and It is issue here is based on both viewpoint. communicative
based it for its on content because prohibits speech impact— (Reno its to offend the hears it. v. American Civil who potential person 2329, 2342-2343, Union 521 U.S. S.Ct. Liberties 867-868 [117 874]; 138 L.Ed.2d Nationalist Movement 505 U.S. Forsyth County v. 2395, 2403-2404, 101]; Texas v. Johnson 2533, 2543-2544, 411-412 491 U.S. the utterance of “deroga It is based on because it viewpoint prohibits racial or ethnic tory convey embody particular words epithets,” Paul, (R.A.V. bias. v. St. 391-393 *52 those words fighting expressing may prohibit only 2547-2548] [state intolerance].) of racial viewpoint in housing
The state racial or ethnic discrimination may prohibit Indeed, (See so. R.A.V. v. doing it has a interest employment. compelling Paul, 2538, 377, 2549]; Creek St. 505 U.S. S.Ct. Walnut supra, 395 [112 (1991) 54 Cal.3d Manor v. Fair & Com. Employment Housing Kennard, (dis. J.).) 814 P.2d the state Although Cal.Rptr. opn. various means to combat racial and ethnic bias in may general, adopt the they antidiscrimination measures collide with First Amendment when and ethnic bias on the basis of “silencing to combat racial attempt Paul, (R.A.V. 392) content” 505 U.S. or by “handicap- its v. St. supra, (id. the ideas” [ping] expression particular 2548]).. test to determine the of the content- and view- validity The proper at issue here is its restriction on is injunction whether point-based to serve a state interest and drawn achieve necessary narrowly compelling Assn., that end. Ed. Assn. v. Local Educators’ (Perry Perry supra, 948, 955].) The state has interest invidious compelling eradicating employment Paul, (see discrimination R.A.V. v. St.
2538, 2549-2550), (see here that interest surely promotes injunction ibid.), necessary but have not shown that the here is injunction plaintiffs discrimi serve that interest. An award of for damages employment proven alternative, nation is a and content-neutral particu presumptively adequate shows,1 this is the first for a first time offender. So far as the record larly or for case in have been awarded Lawrence Avis damages against which Lawrence, found discrimination. one was Only Avis employee, slurs, an abusive racial or ethnic by using have caused work environment The and he did so as to four of the seventeen only original plaintiffs. confined harassment to a limited time and ceased after plaintiffs was period Thus, to conclude that filed this lawsuit. there is no basis which upon (See Intern. Soc. will not have the desired deterrent effect. damages (5th 1979) Cir. 601 F.2d 833 [rejecting Krishna Consciousness Eaves that one that a restraint be based on the generalization view The trial court’s has a law once is to do so likely again].) who violated that an is is entirely assertion injunction necessary speculative. relief were
Even for the sake of assuming argument injunctive not demonstrate the of an necessity injunction the record does necessary, had court found that Lawrence’s harassment The trial restricting speech. of racial and ethnic epithets. consisted of both offensive use touching discrimi- do not whether the employment verdicts jury’s special specify or a were based on the offensive touching, epithets, nation findings record contains no finding by jury combination of the two. The record, pleadings, includes the disagree plurality appellate which 1I with verdicts, injunction, relating to issuance of the jury’s special postverdict proceedings and all this court to constitutionality requires inadequate to determine us, necessary indulge by the record before presumptions, belied narrowly tailored. *53 envi- alone created hostile work trial court that the utterance epithets do not challenge and Avis ronment for Avis Lawrence any employee. intentional touching. Nothing' of the uninvited injunction prohibiting portion of the injunction, that enforcement of this in the record shows portion of Avis activities concerning of the injunction nonspeech portion Black, not be to a recurrence will effective Kathy prevent supervisor discrimination. hostile environment employment hostile to a recurrence of a Nor is the drawn injunction narrowly prevent For Amendment a regulation work environment for plaintiffs. purposes, more than the exact source drawn “if it eliminates no narrowly targets of the ‘evil’ it seeks to remedy.” (Frisby Schultz “A ban can be narrowly complete tailored, but if each is an activity within only proscription’s scope (Ibid.) evil.” targeted appropriately
Here, the to any Lawrence from injunction prohibits addressing epithets not the four one of whom still works Hispanic employee, just plaintiffs (only Avis) whom found to This is not a class Lawrence was have harassed. action, a criminal or a action civil enforcement prosecution, by government; it is a civil action I am of no individual aware by private plaintiffs. authority court, a trial in a action to award permitting civil individual plaintiffs, relief in to the favor who equitable persons strangers proceeding. Also, the Lawrence not from racial injunction only addressing prohibits and ethnic but also from those epithets Hispanic employees, using epithets of these The latter because it descriptive employees. prohibition, applies even to statements made outside the hearing knowledge any Hispanic to a hostile any contribute employee, encompasses speech unlikely way Thus, work environment for is an invalid infringe- plaintiffs. ment free because it that is not rights activity prohibits expressive evil of discrimination precisely targeted against employment plaintiffs.
Even if the were narrowed to Lawrence only prohibit at the to the Avis he directing epithets workplace employees particular harassed, than As it would still more previously prohibit necessary. concedes, the Chief Justice “not utterance of a racial slur in the every ante, (Plur. 130.) use violates the FEHA.” An isolated workplace opn., odious, of an a hostile environment. however does work epithet, produce harassment, To establish discrimination employee verbal must “the intimida ‘discriminatory show that with permeated tion, ridicule, insult,’ . . that severe or . is ‘sufficiently pervasive and create an abusive alter the conditions of the victim’s employment *54 182 (1993) Inc. 510 (Harris Systems, ....’” v. environment working Forklift 17, 367, 370, L.Ed.2d this standard [enunciating 21 S.Ct. 126 295] [114 under title VII of discrimination
for hostile environment employment Fisher v. San Pedro (42 Act of U.S.C. 2000e et seq.)]; Civil 1964 Rights § 590, 608 Cal.Rptr. Peninsula 214 Hospital Cal.App.3d 842] [262 FEHA].) An for claims under injunction prohibiting same standard [adopting not just utterance of a racial or ethnic insult workplace, every environment, a is not narrowly utterances that hostile work actually produce interest in eliminating to serve the state’s drawn compelling discrimination. can be determined
“[Wjhether is ‘hostile’ or ‘abusive’ an environment Inc., (Harris Systems, at all the circumstances.” looking only by Forklift reason, 17, 367, 371.) I For this question 510 U.S. S.Ct. supra, [114 identified without speech, any injunction prohibiting specifically whether context, effect on could its or its any employee, to its regard frequency, Amendment for injunctions the strict the First scrutiny requires survive and on the basis of content viewpoint. restricting speech dissent, Also, content-based injunction out in his a as Justice Mosk points to be invariably necessarily would restricting workplace speech appear ‘to describe “The term restraint’ is used an invalid restraint. ‘prior prior certain communications' when forbidding orders judicial administrative to occur.’ . . . such communications are in advance of the time that issued forbid activi actually court orders that injunctions—i.e., [Permanent (Alexander restraints.” v. United States classic of prior ties—are examples 2766, 2771, 544, 441], italics 125 L.Ed.2d S.Ct. 509 U.S. of a here fits this definition omitted.) certainly prior at issue restraint. Amendment restraints against “accords greater protection prior
The First (Ne for particular speech.” than it does against subsequent punishment 2817, S.Ct. (1976) 427 U.S. Press Assn. v. Stuart braska Brennan, J.).) The disfavor (conc. particular L.Ed.2d opn. our a free society etched in law: theory restraints is based on “a deeply prior break the law they the few who abuse rights punish prefers after to know It is difficult always and all others beforehand. than to throttle them the line legitimate an individual will between say, in advance what risks of freewheeling is often so drawn finely illegitimate speech Promotions, Ltd. v. Conrad (Southeastern are formidable.” censorship 1246-1247, 448], italics in 420 U.S. 559 [95 se, serious are “the most restraints not invalid Although per prior original.) (Nebraska on First Amendment rights.” tolerable infringement and the least 2803].) Stuart, 427 U.S. Press Assn. v. its constitu against restraint is to a subject “heavy presumption A prior Books, (1963) (Bantam Inc. v. Sullivan validity.” tional 631, 639, restraint to defend Anyone seeking for the burden of showing imposition “thus carries heavy justification *55 (1971) 402 U.S. a Better Austin v. such a restraint.” (Organization Keefe for 1575, 1578, 415, the United States Although L.Ed.2d S.Ct. 29 [91 entails, it burden” “heavy Court has not stated what precisely Supreme is “over includes at least a showing prohibited speech apparently the First violating to be without subject regulation whelmingly likely” Eaves, (Intern. Krishna Consciousness v. supra, Amendment Soc. for immediate, 809, direct, and 833) and that it result in “surely F.2d will (1971) (New York Times Co. United States 403 U.S. v. irreparable damage” Stewart, J.); (conc. S.Ct. opn. [91 12-36, Tribe, (2d 1988) ed. see also American Constitutional Law pp. § 1045-1051). seldom, ever,
Because isolated remarks if cause a hostile work environ- ment, and because the existence of hostile work environment determining circumstances, examination of all relevant it is requires impossible demonstrate in advance that create a any will particular workplace speech (and hostile work environment thus be potentially subject regulation Amendment), that it without much less will violating produce direct, immediate, and seems conclusion irreparable injury. Accordingly, future offensive inescapable injunctions prohibiting any on the basis of content and viewpoint invariably necessarily unconstitutional restraints on prior speech.
The Chief Justice’s does not treat the at issue plurality opinion restraint, here as a nor does it the strict test that the United States apply has mandated for content- viewpoint-based injunctions. It various reasons a less test is suggests why rigorous appropriate, offer other consider these reasons in amici curiae reasons. I plaintiffs turn. I note that an otherwise content-neutral statute or injunction
Preliminarily,
certain
defined
may
narrowly
categories—
within
prohibit speech falling
defamation,
such as
and “fighting
meeting any
words”—without
obscenity,
(See
interest test.
v. New
Chaplinsky
Hampshire
separate compelling
766, 769,
1031].) The
315 U.S.
S.Ct.
86 L.Ed.
words”
“fighting
(see
2326, 2335,
consistently rejected
suggestion
have
Moreover,
the work environment
in one
respect
important
Court
States Supreme
that the United
audience situations
from other captive
is not
hours an
working
employee
it
true that during
considered: While
has
it is
offensive speech,
a coworker’s
hearing
to avoid
free to
elsewhere
go
his or
to express
is not free
elsewhere
go
true that the coworker
equally
has
content-
upheld
the United States Supreme
her
Although
views.
Schultz,
(see Frisby
supra,
on residential picketing
neutral prohibitions
ordinance
regu
[upholding
487 U.S.
2503-2504]
(1980) see also
v. Brown
Carey
but
residential
lating
picketing];
down
[striking
263]
470-471 [100
ordinance]), it has never applied
residential
content-based
picketing
to,
a content-based regulation pro
doctrine
audience
example,
captive
to their
such
neighbors,
offensive
signs
homeowners
hibiting
posting
Paul,
(See also
In a footnote its reference to this containing only decisions for Justice’s cites two federal appellate plurality opinion to constitute course of conduct has been found “when proposition repeated a court is authorized to enjoin a nuisance or unlawful employment practice, the nuisance or future acts that are to continue likely perpetuate individual ante, 9.) But neither of the cited (Plur. fn. unlawful practice.” opn., p. (See v. People addresses issue under the First Amendment. any decisions P.2d (1997) 16 Cal.4th Cal.Rptr.2d Scheid 748] [an considered].) I that agree is not on issues not authority appellate opinion broad free concerns are not courts have equitable when speech implicated, For this to halt of illegal activity. to issue injunctions proven patterns powers reason, here not of the injunction prohibiting I do question portion because this from in offensive engaging touching, portion Lawrence does But the injunction prohib not restrict injunction speech. portion and it does does restrict from offensive iting using epithets speech, Lawrence the First As I have explained, so on the basis of content viewpoint. Amendment, construed the United States Supreme as authoritatively Court, such as courts treats invalid and injunctions requires presumptively to an that them form of cannot subject exacting scrutiny withstand. all,
Insofar as he to consider the First Amendment at the Chief deigns be argue Justice understood to that once a court has may fully fairly that a that to a determined has in contributed hostile person engaged speech environment a court work for without particular employee, may, violating Amendment, the First that not only causing same prohibit person harm to the same the same but engaging also from employee by speech, similar cause harm to might similar similar any any employee. an The Chief Justice that an is not invalid restraint suggests if it is remedial in this sense. remarks justices
Isolated individual United States there be some sort of “remedial suggest injunction” may exception (See, restraints. Madsen v. Wom general prohibition against prior e.g., Center, Inc., Health en’s 778-779 Souter, (conc. J.); but id. at see also fn. 1 opn. 2531] Scalia, (cone, J.) dis. whether opn. [questioning judicial Amendment of First a sanction rights abridgment imposed misconduct].) But court’s do decisions broad high support remedial are from strict injunctions proposition viewpoint-based exempt First Amendment scrutiny they because simply against person issued has once to have who been found engaged produced to a contributed hostile work environment. Press
The Chief Justice here seems Co. rely Pittsburgh particular Human Rel. Comm’n U.S. 376 669], in court commercial which high upheld injunction prohibiting A had commercial transactions. newspaper seg- unlawful proposing *58 into its wanted” classified advertisements columns for “help regated separate men’s women’s this as jobs jobs. prohibited practice injunction local claim that the a antidiscrimination ordinance. a violating Rejecting the an restraint on court reasoned that was invalid injunction speech, on advertisements the segregation the ordinance prohibiting employment discrimination, that the of sex was itself a valid of sexual prohibition basis that the went into effect after a full and final determination only injunction ordinance, no the that the did more had violated newspaper (Id. at the conduct determined to be unlawful. 389-390 pp. than prohibit very extended to 2561].) only at Because the injunction’s prohibition p. be the First determined to already unprotected commercial speech Amendment, did not the and because this determination turn on publication’s not a effect on the court observed “this is jobseekers, actual particular the effect of the asked to as to publication.” which Court is speculate case (Id. S.Ct. at
Here, contrast, the the issue is not commercial speech, speech turn on the discrimination does determination employment effect racial and on because ethnic slurs employees, particular prohibited if only they cause discrimination have effect environment, in turn a hostile work which depends upon, producing other on among subjective impact emotional things, of hostile finding discrimination. Because a environ- claiming employees ment discrimination the effect of and because this speech, turns on particular have, cannot what effect will court court know in advance future this the effect of the that the is asked as to speculate expression prohibits. take a if a
To different a has example, maliciously newspaper published a statement about as determined a after a defamatory public figure, by jury trial, all) full fair not (but some courts issuance of permit would from same injunction prohibiting newspaper again publishing very (3d Kramer defamatory (See 1991) statement. v. Cir. F.2d Thompson 666, 675-676 various decisions To [discussing appellate my point].) however, no court has ever as knowledge, so much that in this suggested situation court could other enjoin newspaper publishing deroga- same statements about the on the tory public figure, that these theory statements might be and their would serve prove defamatory prohibition remedial purpose. addressed, take
To another court has example high specifically obscene, once movie theater a film aby has shown that is determined trial, a full and fair a trial jury following may court thereafter enjoin (Paris theater from film I v. Adult Theatre Slaton exhibiting 2628, 2633-2634, 446]), U.S. 54-55 but it may the theater from other films on a enjoin exhibiting based court’s preliminary (Vance determinations that might obscene. Universal Amusement they 1153-1159, L.Ed.2d 413].) Co. Rather, a final before a court adjudication obscenity required exhibition of a film. enjoin having cause hostile environment
Speech only potential employ- *59 discrimination at least is ment deserves as much that speech protection obscene or two of that are defamatory, potentially types speech categorically under the Amendment. An who has prescribable employer engaged that a verbal harassment hostile work discriminatory permitted produced environment, trial, a full and fair by jury following may as determined in or thereafter be from similar offensive enjoined engaging permitting on that it hostile work environment. theory might again speech produce the basis one restricts on of even Any injunction speech viewpoint, recurrence, discrimination to its must issued and remedy past prevent the evil discrimination and not more narrowly prohibit target than necessary. speech
IV I, 2, Article section of the California Constitution declares: “Every person or her write and his sentiments all may freely publish subjects, speak, abuse of A not restrain or right. this law being responsible that, I with Mosk for the abridge Justice liberty press.” agree reasons stated in II of his dissenting cogently part opinion, here our free is issue violates state constitutional which speech guarantee, (Wilson and than federal Supe- “more definitive inclusive” v. provision. (1975) 13 rior Court Cal.3d P.2d Cal.Rptr.
V
dis
and deserve effective
invidious
Employees expect
protection against
But
crimination at
Federal and state statutes
provide
protection.
work.
discrimination
a co
when the
consists of verbal harassment
alleged
worker,
comes into
the statutory right
equal employment opportunity
conflict
constitutional free
do not sur
speech guarantees.
with
Employees
render constitutional free
when
to work.
rights
they go
wholly
“[T]o
exclude
realm
First Amendment would
workplace
in this
For
the freedom of expression
society.
immeasurably impoverish
is
time or
in their lives in which
can
there
no other
many
they
people,
place
issues,
about
and
concerns with
talk
personal problems,
spiritual
public
(Estlund, The Ar
from diverse
backgrounds
perspectives.”
individuals
chitecture
the First Amendment and the Case
Harassment
Workplace
1375;
Comment,
Dame
see
Political
(1997) 72 Notre
L.Rev.
also
Harassment,
83 Cal.L.Rev.
Sexual
Speech,
Captive Workforce
occurs at the
today
more
arguable
political speech
[“it
us,
And,
as Justice Holmes reminds
than
public square”].)
be
to check
eternally vigilant against attempts
expression
“we should
death,
so
loathe
believe
unless
fraught
they
that we
with
opinions
immediate interference with the lawful
pressing
threaten
imminently
immediate
to save the country.”
of the law
check required
purposes
L.Ed.
(Abrams
States
United
Holmes,
(dis.
J.).)
opn.
*60
discrimination
conflict
Our
law
to resolve the
by
attempts
employment
harass-
to recover
verbal
permitting
employee
damages
discriminatory
ment,
if,
circumstances,
only
but
viewed against
totality of.the
so
a hostile
work
harassment is
severe or
as to create
or abusive
pervasive
whether this
suffi-
environment.
some have
standard
Although
questioned
Comment,
(see,
freedom of
ciently
Speech
Freedom
protects
e.g.,
(1992)
1791),
and
standard’s
Harassment
39 UCLA L.Rev.
Workplace
court,
is at
whether a
after a
validity is not
issue here. What
issue is
trial
discrimination, may
of hostile environment
finding
upset
balance,
side,
it
to one
defined
legislatively
tilting
decidedly
by prohibiting
future
even
use of
isolated
without
to their effect on
regard
any
epithets
I
that an
so drawn
Unlike
would hold
employee.
plurality,
violates the
of the
federal
free
state and
Constitutions. For
speech guarantees
reason,
I dissent.
BROWN, J.,
In America,
can
Father Terminiello
a
Dissenting.
give
“
in which he describes the
crowd outside
auditorium
‘im
”
1,
(Terminiello
from Russia’
ported
(1949)
v.
Chicago
U.S.
19 [69
902,
894,
Jackson,
(dis.
adds,
S.Ct.
J.))
93 L.Ed.
and then
“I
opn.
1131]
here;
speak
Communistic Zionistic Jew
We don’t
them
....
want
we
(Id.
want them
back
go
where
came from.”
S.Ct. at
they
21p.
[69
America,
903].) In
Clarence
can attend a
Klux
Ku
Klan
Brandenburg
hood,
stand near a
rally,
burning cross
a
large
wearing
give
“
Africa,
I
saying,
‘Personally, believe
should
returned to
nigger
”
444,
Jew returned to Israel.’
(1969)
v. Ohio
(Brandenburg
395 U.S.
1827, 1829,
America,
S.Ct.
430].)
23 L.Ed.2d
In
Nazis can march through
Skokie, Illinois,
the streets of the
Jewish
predominately
community
wearing uniforms
(National
Party
swastikas.
Socialist
v.
displaying
96];
Skokie
“[T]ime 17, 22, Holmes, (dis. 63 L.Ed. opn. J.).) For abolition women’s even example, slavery, suffrage, ideas, solar-centric solar were once but system today controversial considered Some conventional wisdom. ideas—like bigotry prejudice—
have from And when always been the will be. we wrong beginning hard, in confronted visceral is to strike back which bigotry, with our reaction case form the But tough took the court upholds today. hatred, resentment, áre hostility, jealousy, envy, vengefulness passions and, humankind old as sentiments may as the of such though expression mischief, cause be at too misery thoughts much hateful cannot quelled a cost to “That at rate is the of our Constitution.” any theory freedom. great (Ibid.) Amendment,
“If there is a bedrock the First it is underlying principle idea because government may not of an expression simply prohibit (Texas finds the idea itself v. Johnson society disagreeable” offensive is, (1989) 342])—that 414 S.Ct. [109 until an this court holds that idea that to offend today. Today, happens (Plur. “not someone in the workplace constitutionally opn., protected.” ante, 137.) at it a “hostile Why? Because creates . ... work environment” p. (id. 126) (FEHA). at in of the Fair Act Housing violation p. Employment Code, essence, (Gov. et In the court the FEHA 12900 has seq.) recognized § the First Amendment. exception
In
Savings
Meritor
Bank v. Vinson
In
Inc.
residents of whom had horrors of the Illinois—some of survived the Holocaust in to face hatred on the of America— only similar streets Europe *62 must about have learned Meritor and Harris wondered hostile and why offensive remediable is in the often environment speech rough-and-tumble of the but not on the streets sidewalks of our workplace, neighborhoods. (See Rowan Dept. v. Post 397 U.S. 738 [90 Office 1491, 25 L.Ed.2d a statute from [upholding protecting objec people tionable the live].) in where A speech they constitutional scholar places would answer that the court high has never addressed whether Title VII’s “ ” ban on ‘verbal . . . “offensive” conduct’ is consistent workplace (Meritor, with the First Amendment. 477 U.S. at S.Ct. at supra, 65p. p. [106 Nevertheless, 2404].) court assumes the resolved plurality high opinion that issue and in favor long ago of censorship. VII, *63 ease at (R.A.V., 505 U.S. at supra, p.
protected speech.” p. Thus, if Title VII’s suggests regulation R.A.V. content-based anything, is invalid to the extent it like the regulates “fully speech protected speech” words, the at issue here. In other if ordinance at issue in R.A.V.was speech it out those fighting unconstitutional because for singled regulation only race, color, creed, the words that violence ‘on basis of “provoke[d] religion ” (R.A.V., 2547]), or at at then gender’ p. a fortiori Title VII is unconstitutional it is a content-based regulation because not limited to words. speech fighting
I can think of no circumstance in which this court has brushed aside such on the basis an constitutional as the free important protection right speech of so And it is no answer that the analysis authority. government little conduct, are whether words merely discriminatory proscribing spoken conduct, it can incidentally regulate of that and therefore integral part (Plur. in the without the First Amendment. violating opn., speech workplace ante, Here, 134-135, 6.) fn. it is speaker’s philosophical pp. that cause the and it is those beliefs injury, beliefs and themselves opinions If censor government that the wants to censor. can government opinions discrimi- merely those beliefs and under the rubric of proscribing opinions conduct, Terminiello for discriminato- then it can also Father natory punish auditorium, it in a Russian Jews in his rily denouncing speech Chicago Blacks, can Clarence Brandenburg advocating deportation punish the streets of Skokie. and it can Nazis from marching through prevent Indeed, rule would create exception if applied generally, plurality’s FEHA, the Legislature Amendment. As part that swallowed has also address of discrimination in our attempted problem neighbor- Code, hoods residential by regulating (Gov. real estate transactions. If, 12955.) in furtherance of this had enacted a goal, Legislature § “verbal conduct” prohibition against a “hostile sidewalk environ- creating ment” analogous similar prohibition applies workplace, courts could then enjoin speeches parades discriminatory express ideas, standard, and under the plurality’s these open-ended injunctions would be constitutional because they merely con- proscribed discriminatory duct with an incidental effect only has not speech. plurality simply what makes the explained different from all the other places where we have to with hateful and put up discriminatory speech.
Moreover, here we are not with a dealing merely regulation we speech, are dealing with an absolute restraint. Prior prohibition—a restraints of prior inimical particularly because do not they a burden merely place on the speaker’s ability to communicate a rather message; erase that they before its message effects can be assessed. The asserts plurality repeatedly restraint at issue here is under the First Amendment permitted “because defendants were simply enjoined a course of continuing repetitive had been determined to judicially constitute unlawful ante, harassment in (Plur. 145; violation of the FEHA.” see also opn., 126, 140-141, 141-142, id. at pp. 147.) So that is “unlawful” is now the state unprotected by and federal Constitutions. That standard turns the effect, world on its head. In “The plurality says, Legislature, acting sentiments, to current response carved out certain popular has ideas from the universe ideas, of ideas and declared them to be bad and once an idea has *64 been judicially ideas, determined to be one of these bad courts can prohibit anyone it.” I expressing disagree.
Justice Werdegar’s concurring it the opinion, though agrees court’s analy ante, sis is (conc. flawed fatally at opn., 149-150) and tries harder to pp. issues, address the First Amendment is no more persuasive. Conceding none of the First Amendment existing doctrines alone the standing permits here, at issue she carves a new from the First Amend exception ment because a (id. 165) “contrary holding” at would mean p. “Lawrence’s First Amendment . . . rights of the Latino outweigh rights to plaintiffs be free of unwanted racial (Id. discrimination.” 165-166.) at pp. Constitution, however, has balanced the already scales. Plaintiffs should not be to racial subjected invectives in the But this case is workplace. not, as Justice Werdegar an choice suggests, all-or-nothing between either or upholding to a “constant subjecting stream of employees ante, (Conc. [denigrating] omitted.) at verbiage.” opn., fn. There is a can sue and It is hard to damages. middle recover ground: employees continue to tolerate any discriminatory speech would imagine employer award, after the cost of and a shouldering damage litigation did, and, award, it including if it would run the risk second hefty paying is and fees. I think that sufficient to deter remedy punitive damages attorney (Id. 166.) any “unwanted racial discrimination.” case freedom As Justice Werdegar recognizes, pits speech against and cannot racial and because tension between freedom equality, equality reconciled, (Conc. best can be is a rough achieved equilibrium. ante, 165, 167.) In this the California Constitution strikes opn., regard, pp. balance between restraints and all by distinguishing appropriate I, (a), other Article section subdivision of the state regulations speech. his freely Constitution write and provides: “Every person may publish speak, or all for abuse her sentiments on of this subjects, being responsible A law or or In right. liberty Dailey restrain may abridge press.” Cal. P. (Dailey), Superior discussing said, earlier, right almost identical version of this we “The provision, unlimited, write, citizen to his sentiments but he publish freely speak, He at the hands of the law for an abuse of shall have right. responsible write, no him to he must for or censor over whom apply permission speak, but he shall be held accountable to the law for what he what publish, speaks, write, writes, he he It is that this publishes. right what patent speak, exercised, cannot be until it is and before it is exercised abused publish, can be no there responsibility.” but we have Dailey, injunctions against speech, only pre-
Since
upheld
words,
other com-
obscenity
scribable
such
where
fighting
(Cf.
relief
injunctive
absolutely necessary.
circumstances made
pelling
ex rel.
v. Acuna
The also does not address concurring broad. Justice Werdegar’s opinion overly issue other than to must be narrowed injunction “sufficiently state (Conc. ante, 166.) at remand to the The p. to workplace only.” opn., apply must “bur that an recognizes restraining plurality opinion injunction to den no more than serve a significant government necessary Center, (Madsen interest” v. Women’sHealth Inc. 593]), but that this injunction S.Ct. argues ante, (Plur. 146.) at
satisfies that standard. I p. disagree. opn., First, record, are because this case on a limited we do deciding very we it, said, not he said exactly know what how often plaintiffs’ supervisor Moreover, what the do not surrounding circumstances were. we know award, whether the to which defendants have chosen not damages challenge, was to an end to the hostile bring conduct created the work adequate Therefore, environment. we do not if the broad know was neces injunction or if a sary, more one use only specific prohibiting, example, pervasive Second, of certain would have sufficed. does not epithets merely prohibit from his com plaintiffs’ supervisor repeating discriminatory rather, ments in plaintiffs’ presence; it him from them prohibits repeating anywhere in the The States made United clear in workplace. Supreme that, Harris “if the victim does not environ subjectively perceive [work] abusive, ment to be the conduct has altered the conditions of the actually victim’s (Harris, there is no Title VII employment, violation.” at 370].) 21-22 at This standard also under pp. p. applies ante, (Plur. Therefore, the FEHA. 130.) opn., if an never p. employee learns about the use of certain words in those words cannot workplace, create a hostile work environment for that I see no reason under employee. this standard to his discrimina enjoin plaintiffs’ supervisor expressing tory to opinions who not offended them. In persons sum, constitutional, even if the at issue were here otherwise it is overly broad as written therefore invalid. has its fashionable In
Every age
ideas and its disfavored ideas.
the early
of this
part
was
about
century,
public
thin-skinned
commu
particularly
nism. Courts tried to
the dissemination of communist
prohibit
punish
ideas, but the United States
Court struck
these
down
decisions
(See,
with a
no.
Gitlow v. New York
None of this condone discrimination but the issue this case discrimination. just workplace, speech, be sometimes. It be It offensive. Speech unpleasant may disgusting. may But, to the it be few rhyme, may injurious. even with Contrary nursery none the state and federal Constitutions of which exceptions, apply, prohibit to extricate using courts from their instrument injunctive power surgical discourse, ideas even popular principle applies disfavored from were, here can tell where ideas from what we from question record, limited both offensive and abhorrent. hold to that a that tells
One of the truths we be self-evident is government its citizens what soon be think. may say dictating they will what they may freedom, But we cannot allow country in a such a puts high premium orthodox, culturally ourselves to captives imposed thinking pat- Indeed, I so no terns. can conceive no imprisonment subjugation complete, absolute, so no so as the enslavement of the mind. debasement abject Thus, it case this is a case about and freedom. is a
Fundamentally,
equality
ideals;
most
about our
and our
highest
about our
basic political
aspirations
failures;
It is
and our
fears.
about
greatest
toughest challenges
deepest
our
freedom,
elusive dream of
and the
not immune
bafflingly
equality
abuse,
It
that make others more than uncomfortable.
is a case
words
speak
two.
about
and freedom and the irreconcilable tension between the
equality
We
all the beneficiaries of the freedom the Constitution guarantees,
costs,
be anguish.
we
its
even
sometimes
all pay
though
price
I dissent.
notes
FEHA has the same broad
as Title
plurality
scope
and,
VII,
ante,
like Title
it
harassment”
at
prohibits
(plur. opn.,
p.
“[v]erbal
“
129) that is
as
‘sufficiently
so
to . . . create an abusive
pervasive
working
(Id.
environment ....’”
at
Fisher v. San Pedro Peninsula
p.
quoting
Then,
Hospital
842].)
with
Cal.App.3d
Cal.Rptr.
[262
an offhand
summary
in Meritor and
and no
holdings
Harris
further
analysis,
states that “these decisions are
least
plurality
at
implicitly
inconsistent with
that
any suggestion
this nature is
constitutionally
(Id.
135.)
at
protected.”
These cases did not
p.
Why?
even discuss
Amendment, let alone
it.
on dictum that
apply
relies
is
Finally,
plurality
not even on
R.A.V. v. St. Paul
point
[112
(R.A.V.).