Group faces new constitutional waters
September 19, 1999
On Aug. 2, the Supreme Court of California, in a 4-3 decision, placed a prior restraint on speech, including a list of specifically forbidden words. This decision was abetted and encouraged by the American Civil Liberties Union of Northern California and supported by ACLU headquarters in New York.
In Aguilar vs. Avis Rent-A-Car System, the court upheld an award of $135,000 in damages to Latino employees of Avis who had charged employment discrimination in the form of persistent racial epithets and insults by a supervisor, John Lawrence.
But the court went beyond confirming this creation of a hostile work environment that caused employment discrimination. It imposed a prior restraint against such language in the workplace.
Lawyers specializing in such cases say that this is the first time a state supreme court has ruled that it is constitutional to impose such a prior restraint injunction, despite the First Amendment and despite stronger free-speech protections than the federal First Amendment in California’s constitution.
In his vigorous dissent, Stanley Mosk, a long-term, eminent civil libertarian on that court, said this decision does more than prohibit the defendants Lawrence and Avis from continuing their unlawful speech. It goes on to unconstitutionally forbid “any future use of a list of offensive words in the workplace even outside the presence of the (Latino employees) and even if welcome or overtly permitted.” (This “exemplary” list of specific forbidden words is currently being formulated by a lower-court judge.)
Justice Mosk added: “Punishment for and suppression of speech are two different things.”
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Cliff Palefsky, a civil-rights lawyer, told the Los Angeles Times that while “certain and unique circumstances” justify punishing discriminatory speech in the workplace, this decision means that from now on, “it will be almost impossible to clearly define the kind of prohibited speech that will give adequate constitutional notice to the person you’re trying to restrain.”
Furthermore, as Supreme Court Justice William Brennan a hero of the ACLU emphasized: The First Amendment “accords greater protection against prior restraint than it does against subsequent protection for a particular speech.”
Yet the ACLU of Northern California submitted an amicus brief in enthusiastic support of this prior restraint of speech, including a classic use of Orwellian newspeak: “The narrow injunction barring racial epithets issued in this case enforces anti-discrimination laws without infringing free speech.”
The right “to equal treatment at work,” the ACLU continued, permits “some limits on the unrestrained speech of bigots in the workplace.”
But in this case, although that speech has already been punished, the ACLU now would suppress any such speech in that workplace in the future. At one time, the ACLU’s membership card had the First Amendment printed on its back.
Another dissenting justice, Janice Brown, skewered the ACLU’s zeal to suppress future speech. Brown said this decision “would create the exception that swallowed the First Amendment.”
An illuminating footnote to the Aguilar decision which may well be cited as a precedent in courts in other states was told to me by UCLA law professor Eugene Volokh:
“This case shows the fallacy of thinking that there is some special approach to the law held by minority or women judges that makes them different (better or worse) from male or white judges.
“Of the three women justices, one took the view that harassment law (including sexual-harassment law) trumps free-speech law; two disagreed. Of the three non-white justices, one took the view that racial harassment law trumps free-speech law; two disagreed. What matters is judicial philosophy, not race or sex.” (One of the two women judges who disagreed nonetheless filed a concurring opinion on other grounds, but warned that the court is “sailing into uncharted First Amendment waters.”)
What also matters is that the ACLU a paladin of free expression in so many areas has now allowed itself to be gleefully cited by its opponents as agreeing that certain words can no longer be spoken in certain places before there is clear evidence that any of those words has created discrimination in a particular instance or in a particular context.
The Supreme Court of the United States will have to rescue us from the ACLU. (Nat Hentoff is a nationally renowned authority on the First Amendment and the rest of the Bill of Rights. Copyright 1999 Newspaper Enterprise Assn.)