Court Upholds Hate Speech Gag

The Recorder/Cal Law, August 3, 1999
By Greg Mitchell

The California Supreme Court upheld an injunction Monday that prohibits a car rental employee from using racial epithets in the workplace. "

Once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited 'prior restraint,'" wrote Chief Justice Ronald George.

But the closely watched case spawned five separate opinions, with a trio of anguished dissents and a concurrence that deprived George of a majority.

It's common for employees to sue over past harassing speech. Monday's case is unusual because of the injunction barring the use of certain words and epithets in the future.

The author of the concurring opinion, Justice Kathryn Mickle Werdegar, agreed that, in this particular case, the injunction could be found valid so long as it is redrawn to include an "exemplary" list of words forbidden in the workplace.

But she said George had refused to acknowledge that the court was "sailing into uncharted First Amendment waters" with its decision.

The dissents were ever harsher. "I can think of no circumstance in which this court has brushed aside such an important constitutional protection as the right to free speech on the basis of so little analysis or authority," wrote Justice Janice Rogers Brown.

For George and Justices Ming Chin and Marvin Baxter, deciding the constitutional validity of the injunction issued against Avis Rent A Car and its employee, John Lawrence, was pretty simple.

Lawrence and Avis were sued in 1993 by a group of Latino co-workers who said the shop steward has called them names like "wetback" and snapped towels at them.

After a jury awarded damages under the Fair Employment and Housing Act, San Francisco Superior Court Judge Carlos Bea enjoined Lawrence and Avis from using racial epithets in the future. A bitterly divided First District Court of Appeal panel upheld the injunction, but said it must include a list of the banned words and could only cover Lawrence at work.

The state and federal constitutions frown on prior restraints on speech. But George said the injunction wasn't a prior restraint because Lawrence had already had his day in court and a jury had found his speech created a hostile work environment.

George based his argument on a series of cases, including People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, where the justices upheld a gang injunction two years ago. In that case, George noted, the court observed that "[u]nlike the pervasive 'chill' of an abstract statutory command that may broadly affect the conduct of the absent class and induce self-censorship, the decree here did not issue until after these defendants had their day in court."

But Werdegar said George was ducking the real question: whether the First Amendment permits restrictions on speech that create a hostile workplace. According to Werdegar, the U.S. Supreme Court hasn't given a definitive answer, but its decisions in sexual harassment cases hint at how the highest court would respond.

The high court, she concluded, would permit some restrictions on racially hostile or abusive speech at work.

Werdegar noted that the state has a compelling interest in curbing race discrimination and that Lawrence can still express his ideas away from work. She said his Latino co-workers were a captive audience and that restrictions on work speech were somewhat akin to "time, place and manner" restrictions. With that, Werdegar handed George the fourth vote needed to upheld the injunction.

Justices Stanley Mosk, Joyce Kennard, and Brown each attacked different parts of the plurality and concurring opinions, and all but demanded the U.S. Supreme Court take the case.

Mosk said that even if speech can amount to employment discrimination, future speech can't be banned "because the offensive content and effect of using any one, or more, verboten words cannot be determined in advance."

Kennard, meanwhile, savaged the idea that a judicial finding that past speech caused a harm supports the prior restraint of similar speech in the future.

That's akin, she said, to saying that a newspaper that had been found to have defamed a politician could be stopped from publishing other derogatory statements about that politician in the future.

Brown's dissent included an impassioned defense of the First Amendment and its tolerance of ugly speech, but it also recognized the motive behind Bea's novel injunction. "When we are confronted with bigotry, our visceral reaction is to strike back hard, which in this case took the form of the tough injunction the court upholds today."

But she argued -- as did Werdegar -- that the U.S. Supreme Court has never addressed whether civil rights laws that ban offensive verbal conduct in the workplace run afoul of the First Amendment. "Nevertheless, the plurality opinion assumes the high court resolved that issue long ago in favor of censorship," she wrote.

"Every age has its fashionable ideas and its disfavored ideas," wrote Brown in Aguilar v. Avis Rent A Car System, 99 C.D.O.S. 6144. "Today this court reopens the door to censorship with a resounding yes."

Neither Edwin Currey, who represented the Latino plaintiffs, nor Joel Kelly, who represented Lawrence and Avis, could be reached for comment.

Michelle Alexander, an attorney with the American Civil Liberties Union, praised the decision, and said it was in line with U.S. Supreme Court precedents. The ACLU, which typically backs free speech over restrictions, filed an amicus curiae brief in support of the plaintiffs in this case.

"The First Amendment is not a license to discriminate," she said. "The U.S. Supreme Court has made clear that speech that is protected on the sidewalk isn't protected at work."