# Aguilar v. Avis Rent a Car System, Inc.

> California Supreme Court · August 2, 1999 · 87 Cal. Rptr. 2d 132

URL: https://www.frixlaw.com/law-library/cases/1428244

## Case

- **Full name:** OSCAR AGUILAR Et Al., Plaintiffs and Respondents, v. AVIS RENT a CAR SYSTEM, INC., Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** August 2, 1999
- **Citations:** 87 Cal. Rptr. 2d 132; 21 Cal. 4th 121; 99 Daily Journal DAR 7877; 980 P.2d 846; 15 I.E.R. Cas. (BNA) 594; 75 Empl. Prac. Dec. (CCH) 45,960; 80 Fair Empl. Prac. Cas. (BNA) 643; 99 Cal. Daily Op. Serv. 6144; 1999 Cal. LEXIS 4850
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** George, Werdegar, Mosk, Kennard, Brown
- **Cited by:** 301 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1428244

## How later opinions describe it (automated extraction)

- holding that enjoining a defendant's use of racial epithets at the defendant's workplace was not an unconstitutional prior restraint because it was based "on [his] continuing course of repetitive conduct" that violated employment discrimination law
- noting that California courts have adopted the Title VII standard for evaluating environmental workplace harassment claims under FEHA

## Opinion text

87 Cal.Rptr.2d 132 (1999)
980 P.2d 846
21 Cal.4th 121
Oscar AGUILAR et al., Plaintiffs and Respondents,
v.
AVIS RENT A CAR SYSTEM, INC., et al., Defendants and Appellants.
No. S054561.
Supreme Court of California.
August 2, 1999.
*135 McKenna & Cuneo, Curiale Dellaverson Hirschfeld Kelly & Kraemer, Joanne Dellaverson, Joel P. Kelly, Donna M. Flutter, John F. Baum, San Francisco, and Thomas A. Myers, Los Angeles, for Defendants and Appellants.
Bruce Adelstein, Los Angeles; Michael E. Rosman and Hans F. Bader, Washington, DC, for the National Writers Union, the Reason Foundation, the Libertarian Law Council and the Center for Individual Rights as Amici Curiae on behalf of Defendants and Appellants.
J. Joshua Wheeler, for the Thomas Jefferson Center for the Protection of Free Expression as Amicus Curiae on behalf of Defendants and Appellants.
Bronson, Bronson & McKinnon, Edwin L. Currey, Jr., San Francisco, Albert P. Bedecarre, Los Angeles, Mary Bossart Halfpenny, Adam M. Dodek; La Raza Centro Legal and Renee Saucedo for Plaintiffs and Respondents.
Margaret C. Crosby, Ann Brick and Edward M. Chen, for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Plaintiffs and Respondents.
Morrison & Foerster, William Alsup; Patricia A. Shiu, San Francisco, Jennifer Middleton, Claudia Center and Elizabeth Letcher for the Employment Law Center as Amicus Curiae on behalf of Plaintiffs and Respondents.
GEORGE, C.J.
A jury found that defendants had engaged in employment discrimination, in part by permitting plaintiffs to be the target of racial epithets repeatedly spoken by a fellow employee. In addition to awarding damages, the trial court issued an injunction prohibiting the offending employee from using such epithets in the future. Defendants argue that such an injunction constitutes a prior restraint that violates their constitutional right to freedom of speech. For the reasons that follow, we hold that a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment and therefore will constitute employment discrimination.
I
The present appeal is from a judgment awarding damages and injunctive relief. Defendants have not provided a reporter's transcript of the trial proceedings, and have elected to proceed by means of an appendix in lieu of a clerk's transcript. We glean the following from this rather limited record.
*136 In a first amended complaint dated April 26, 1993, 17 Latino employees of Avis Rent A Car System, Inc., sued Avis and 10 named individuals, alleging causes of action for employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), [1] wrongful discharge in violation of public policy, intentional infliction of emotional distress, and negligent infliction of emotional distress.
The complaint alleged that plaintiffs were employed by Avis as "drivers," at its San Francisco airport facility, to move Avis vehicles among parking lots and from one airport location to another. Defendant John Lawrence was "the service station manager at the SFO AVIS location and was authorized to direct and control the drivers." The complaint alleged that Lawrence "verbally harassed [plaintiffs] constantly. He routinely called only the Latino drivers `motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills." (Italics in original.) Defendant Kathy Black was alleged to have conducted a discriminatory investigation into the suspected theft of a calculator from a rental vehicle, detaining and questioning only Latino employees. In the course of this inquiry, a police officer was summoned and plaintiffs were told that the Immigration and Naturalization Service would be called if they did not cooperate. The calculator was found the following day, and Black apologized to plaintiffs.
On October 27, 1994, the jury returned special verdicts, finding as follows: Plaintiffs Ramiro Hernandez, German Lazo, Oswaldo Ramirez, Carlos Reyes, and Mario Serrano were harassed or discriminated against by a supervisor, Black. Each of these plaintiffs was awarded damages in the amount of $15,000. Plaintiffs Pedro Mojica and Orlando Peraza were harassed or discriminated against by Black and Lawrence. Avis knew or should have known of Lawrence's conduct with respect to these employees and took no action. Mojica and Peraza each was awarded damages in the amount of $25,000. Plaintiff Marcos Recinos was harassed or discriminated against by Black and Lawrence, but Avis did not know, nor should it have known, about Lawrence's conduct with respect to him. Recinos was awarded damages in the amount $25,000. Plaintiff Miguel Fonseca was harassed or discriminated against by Lawrence. Avis knew or should have known of Lawrence's conduct with respect to Fonseca and took no action, but Fonseca did not suffer severe emotional distress, and the jury awarded no damages.
On December 15, 1994, a hearing was held to consider plaintiffs' request for injunctive relief. Defendants argued there was no evidence of ongoing harm, nor any danger of ongoing harm, and the court responded: "Well, there was evidence presented sufficient for the jury to find that... as to four plaintiffs who were working there, all of whom had a common characteristic, that is, that they were Latinos or members of Hispanic Latino racial ancestry, Lawrence had engaged in acts of harassment so continual and severe as to alter the working conditions for those people there, because that was the statutory test; [¶] Secondly, that Avis knew or should have known of that harassment. It may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment. But I want to make sure that that chilling effect survives the end of this process."
The court further stated during the hearing: "Well, the court is making a finding of fact based on evidence observed during the trial, that based on the evidence showing harassment and discrimination to the extent already commented on by Mr. Lawrence, there's a substantial likelihood *137 based on his actions that he will do so in the future unless restrained."
On February 14, 1995, the court entered judgment awarding damages against Avis in the amount of $15,000 each to Hernandez, Lazo, Ramirez, Reyes, and Serrano, and damages against Avis and Lawrence jointly and severally in the amount of $25,000 each to Mojica, Peraza, and Recinos. The court also issued an injunction that stated as follows: "Defendant John Lawrence shall cease and desist from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc., and shall further refrain from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by Avis Rent A Car System, Inc., in California. [¶] Defendant Avis Rent A Car System, Inc. shall cease and desist from allowing defendant John Lawrence to commit any of the acts described in [the above quoted paragraph], under circumstances in which it knew or should have known of such acts; and shall further not investigate or permit investigations regarding breaches of its employment rules or practices when such investigations are limited to subjects or targets who are Hispanic/Latino employees of said defendant, unless the circumstances are such that no employees other than Hispanic/Latinos are reasonably subjects or targets of such investigation(s)."
The injunction further ordered Avis to post certain notices advising employees to report any instances of discriminatory or harassing conduct by Avis or its employees and to "publish a policy statement in English and Spanish delineating employee rights and manager responsibilities with regard to employee complaints of racial or national origin harassment or discrimination....."
Defendants appealed "from the mandatory and prohibitory injunction portion of the Judgment," providing the Court of Appeal with the reporter's transcript of the posttrial hearing at which the injunction was issued, but not providing the court with a reporter's transcript of the trial proceedings. Defendants further elected to prepare an appellants' appendix in lieu of a clerk's transcript.
The Court of Appeal concluded "that to the extent the injunction prohibits Lawrence from continuing to use racist epithets in the workplace it is constitutionally sound, but to the extent it reaches beyond the workplace it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly." The Court of Appeal reversed the injunctive portion of the judgment and remanded the case to the trial court with directions to "redraft the injunction in a manner that ... limits its scope to the workplace." In response to defendants' argument that the injunction's prohibition of the use of "derogatory racial or ethnic epithets" was vague, the Court of Appeal further ordered the trial court to add "an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets such as those actually used in the workplace by Lawrence" in order to "more precisely warn Lawrence and Avis what is forbidden." Plaintiffs have not challenged the Court of Appeal's restriction of the terms of the injunction, but Avis and Lawrence sought review of that court's decision, arguing that the injunction, even as limited by the Court of Appeal, constitutes an improper prior restraint of freedom of expression. We granted review to address this question.
II
The FEHA declares "as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age." (§ 12920.) "This court has declared that policy to be `fundamental'" ( Brown v. *138 Superior Court (1984) 37 Cal.3d 477, 485 , 208 Cal.Rptr. 724 , 691 P.2d 272 .) "Employment discrimination `foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.' (§ 12920.) The express purpose of the FEHA is `to provide effective remedies which will eliminate such discriminatory practices.' ( Ibid. ) In addition, the Legislature has directed that the FEHA is to be construed `liberally' so as to accomplish its purposes. (§ 12993.)" ( Brown v. Superior Court, supra, 37 Cal.3d at p. 486 , 208 Cal.Rptr. 724 , 691 P.2d 272 .)
One form of employment discrimination is harassment on the basis of race or national origin. Section 12940, subdivision (h)(1), states that it is unlawful: "For an employer ... or any other person, because of race ... [or] national origin ... to harass an employee or applicant. Harassment of an employee or applicant by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." [2] California Code of Regulations, title 2, section 7287.6, subdivision (b)(1)(A), defines harassment to include "[v]erbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act[.]"
Verbal harassment in the workplace also may constitute employment discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.; Title VII), the federal counterpart of the FEHA. ( Meritor Savings Bank v. Vinson (1986) 477 U.S. 57 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 ; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517 , 76 Cal. Rptr.2d 547 [Title VII cases may be considered in interpreting the FEHA.].) Explaining the potentially debilitating effects of this form of employment discrimination, the United States Supreme Court has observed: "A discriminatorily abusive work environment ... can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers." ( Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22 , 114 S.Ct. 367, 370-371 , 126 L.Ed.2d 295, 302 ; Davis v. Monsanto Chem. Co. (6th Cir.1988) 858 F.2d 345, 349 .)
Of course, not every utterance of a racial slur in the workplace violates the FEHA or Title VII. As the United States Supreme Court has recognized in the context of sexual harassment: "[N]ot all workplace conduct that may be described as `harassment' affects a `term, condition, or privilege' of employment within the meaning of Title VII. [Citations.] For sexual harassment to be actionable, it must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.' [Citation.]" ( Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, 67 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 .) The high court reaffirmed this standard in Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 21-22 , 114 S.Ct. 367, 370-371 , 126 L.Ed.2d 295 , 302: "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title *139 VII violation." Recently, the high court observed that it had "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment...." ( Faragher v. City of BocaRaton (1998) 524 U.S. 775 , ___, 118 S.Ct. 2275, 2284 , 141 L.Ed.2d 662, 677 .)
California courts have adopted the same standard in evaluating claims under the FEHA. In rejecting a FEHA claim that alleged acts of sexual harassment directed toward other women had created a hostile work environment for the plaintiff, the Court of Appeal in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 , 262 Cal.Rptr. 842 held that the harassment complained of must be "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment...." ( Id. at p. 608, 262 Cal.Rptr. 842 .) "The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological wellbeing of a reasonable employee and that she was actually offended." ( Id. at pp. 609-610, 262 Cal.Rptr. 842 , fn. omitted.) "[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]" ( Id. at p. 610, 262 Cal.Rptr. 842 .)
In the present case, Avis and Lawrence do not contest the validity of that portion of the judgment awarding monetary damages against them. They concede that the jury's findings that they violated the FEHA are supported by substantial evidence and they do not claim that the damage award violates the First Amendment. For purposes of this case, therefore, it is established that Lawrence's conduct created a hostile or abusive work environment for plaintiffs on the basis of race, and that Avis properly was held liable for knowingly failing to prevent this misconduct by Lawrence. [3] (See Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 603-604 , 40 Cal.Rptr.2d 350 ; Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1210 , 37 Cal.Rptr.2d 529 .)
III
Avis and Lawrence challenge only that portion of the judgment awarding injunctive relief. It is beyond question that, in general, both the Department of Fair Employment and Housing and courts enforcing the FEHA are empowered not only to redress past instances of employment discrimination, but to prevent a recurrence of such misconduct. Section 12920 states that the purpose of the FEHA is "to provide effective remedies which will eliminate" employment discrimination. Section 12920.5 adds: "In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons." Accordingly, if the Fair Employment and Housing Commission finds that an employer has engaged in an unlawful practice, it may order the employer "to cease and desist from the unlawful practice." (§ 12970, subd. (a).) Further, the Commission may order "[a]ffirmative *140 or prospective relief to prevent the recurrence of the unlawful practice." (§ 12970, subd. (a)(5).) Similarly, courts can, and often do, issue injunctions prohibiting the recurrence or continuation of employment discrimination. We have held "that, in a civil action under the FEHA, all relief generally available in noncontractual actions ... may be obtained." ( Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221 , 185 Cal.Rptr. 270 , 649 P.2d 912 .) This includes injunctive relief. ( Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 869-870 , 193 Cal.Rptr. 760 .)
Avis and Lawrence argue initially that the injunction was unnecessary, because the record does not demonstrate that "Lawrence used words that are constitutionally prescribable." As noted above, the jury determined that Lawrence's conduct violated the FEHA, and defendants concede that this finding is supported by substantial evidence. The record before this court does not reveal the precise words used by Lawrence, because defendants elected not to provide a reporter's transcript of the trial proceedings. We reject defendants' claim, therefore, because they failed to provide this court with a record adequate to evaluate this contention. ( Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 , 224 Cal.Rptr. 664 , 715 P.2d 624 .)
Defendants also argue that the injunction was unnecessary because the record does not demonstrate that Lawrence "engaged in ongoing conduct that arguably might justify injunctive relief." The trial court found to the contrary, stating: "[T]he court is making a finding of fact based on evidence observed during the trial, that based on the evidence `showing harassment and discrimination to the extent already commented on by Mr. Lawrence, there's a substantial likelihood based on his actions that he will do so in the future unless restrained." In order to prevail on this claim, defendants must show that this finding is not supported by substantial evidence. But, as noted above, defendants elected not to provide a reporter's transcript of the trial proceedings. Accordingly, they have no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court's finding that injunctive relief was necessary to prevent a continuation of defendants' unlawful conduct.
Defendants claim we must conclude that injunctive relief is unnecessary, because it appears from the trial court's comments that Lawrence had ceased his unlawful conduct during the pendency of the present proceedings. The trial court rejected this contention, observing that "[i]t may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment," and finding that "based on the evidence showing harassment and discrimination [by Mr. Lawrence] to the extent already commented on ..., there's a substantial likelihood based on his actions that he will do so in the future unless restrained." The trial court did not err in so ruling. The mere fact that a defendant refrains from unlawful conduct during the pendency of a lawsuit does not necessarily preclude the trial court from issuing injunctive relief to prevent a posttrial continuation of the unlawful conduct.
"[M]any courts have rejected arguments against injunctive relief where defendants changed their practices only in response to being sued." (2 Lindemann, Employment Discrimination Law (3d ed.1996) ch. 40, p. 1748, fn. omitted.) "Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, [citation], unless the employer proves it is unlikely to repeat the practice, [citations].... An employer that takes curative actions only after it has been sued fails to provide sufficient assurances that it will not repeat the violation to justify denying an injunction." ( EEOC v. Goodyear *141 Aerospace Corp. (9th Cir.1987) 813 F.2d 1539, 1544 ; EEOC v. Frank's Nursery & Crafts, Inc. (6th Cir.1999) 177 F.3d 448, 467-468 ["upon a finding of any intentional employment discrimination, a district court possesses broad discretion to craft an injunction that will ensure the employer's compliance with the law"]; Dombeck v. Milwaukee Valve Co. (7th Cir.1994) 40 F.3d 230, 238 [injunction proper although harasser and victim had been reassigned to different work areas]; EEOC v. Gurnee Inn Corp. (7th Cir.1990) 914 F.2d 815, 817 [injunction prohibiting future sexual harassment proper although the employment of the sole harasser had been terminated]; cf. Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929 , 130 Cal.Rptr. 1 , 549 P.2d 833 [" `[T]he voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere volition of a party the challenged practices may be resumed.' [Citation.]"].)
IV
Avis and Lawrence further claim that the injunction is invalid because it is a prior restraint that violates their rights to free speech guaranteed by the First Amendment to the federal Constitution, and article I, section 2, of the California Constitution. We first consider defendants' claims under the federal Constitution.
A.
The First Amendment to the United States Constitution states: "Congress shall make no law ... abridging the freedom of speech...." This fundamental right to free speech applies to the states through the Fourteenth Amendment's due process clause. ( Gitlow v. New York (1925) 268 U.S. 652, 666 , 45 S.Ct. 625 , 69 L.Ed. 1138 .)
Although stated in broad terms, the right to free speech is not absolute. ( Near v. Minnesota (1931) 283 U.S. 697, 708 , 51 S.Ct. 625 , 75 L.Ed. 1357 ["Liberty of speech and of the press is also not an absolute right, and the state may punish its abuse. Whitney v. California [(1927) 274 U.S. 357 , 47 S.Ct. 641 , 71 L.Ed. 1095 ]; Stromberg v. California [(1931) 283 U.S. 359 , 51 S.Ct. 532 , 75 L.Ed. 1117 ]."].) Many crimes can consist solely of spoken words, such as soliciting a bribe (Pen.Code, § 653f), perjury (Pen.Code, § 118), or making a terrorist threat (Pen.Code, § 422). As we stated in In re M.S. (1995) 10 Cal.4th 698, 710 , 42 Cal.Rptr.2d 355 , 896 P.2d 1365 : "[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, `"communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs...."' [Citations.]" (See also NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 916 , 102 S.Ct. 3409 , 73 L.Ed.2d 1215 ; Milk Wagon Drivers v. Meadowmoor Dairies, Inc. (1941) 312 U.S. 287, 292, 295 , 61 S.Ct. 552 , 85 L.Ed. 836 ; Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark (1994) 1994 Sup.Ct. Rev. 1, 13.) Civil wrongs also may consist solely of spoken words, such as slander and intentional infliction of emotional distress. A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. ( Roberts v. United States Jaycees (1984) 468 U.S. 609, 628 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 ["[A]cts of invidious discrimination in the distribution of publicly available goods, *142 services, and other advantages cause unique evils that government has a compelling interest to prevent—wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection."].)
This reasoning applies equally when spoken words, either alone or in conjunction with conduct, amount to employment discrimination. As already noted, the United States Supreme Court has held that the use of racial epithets that is sufficiently severe or pervasive constitutes "employment discrimination" in violation of Title VII ( Harris v. Forklift Systems, Inc., supra, 510 U.S. 17 , 114 S.Ct. 367 , 126 L.Ed.2d 295 ; Mentor Savings Bank v. Vinson, supra, 477 U.S. 57 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 ), and these decisions are at least implicitly inconsistent with any suggestion that speech of this nature is constitutionally protected. Furthermore, in R.A.V. v. St. Paul (1992) 505 U.S. 377, 389 , 112 S.Ct. 2538 , 120 L.Ed.2d 305 , the high court made this point explicit in discussing certain circumstances in which spoken words are not constitutionally protected, stating: "[S]ince words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets)... speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. [Citations.] Thus, for example, sexually derogatory `fighting words,' among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, [citations]." (See also Wisconsin v. Mitchell (1993) 508 U.S. 476, 487 , 113 S.Ct. 2194 , 124 L.Ed.2d 436 .) [4]
Justice Werdegar's concurring opinion asserts that we fail to "address ... a critical preliminary question, that is, whether the First Amendment permits imposition of civil liability under FEHA for pure speech that creates a racially hostile or abusive work environment," and asserts that this issue takes us "into uncharted First Amendment waters." (Cone. opn. of Werdegar, J., post, 87 Cal.Rptr.2d at pp. 151-152, 980 P.2d at p. 863 .) To the contrary, as noted above, we conclude that it is clear from the high court's decisions in Harris, Meritor, and R.A.V. that the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment. Defendants do not argue otherwise. The sole issue in the present case is whether the First Amendment also permits the issuance of an injunction to prohibit the continuation of such discriminatory actions.
*143 It is not surprising that defendants concede that the First Amendment permits the imposition of civil liability for pure speech that violates the FEHA, because the high court's opinions, discussed above, leave little room for doubt on this score. As noted above, in R.A.V. v. St. Paul, supra, 505 U.S. 377, 389 , 112 S.Ct. 2538 , 120 L.Ed.2d 305 , the high court demonstrated its point that some forms of pure speech are not constitutionally protected, by observing that words "may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices." One commentator observed: "When the majority and concurring opinions are viewed in conjunction, it appears that all nine Justices participating in R.A.V. assumed that the core Title VII prohibition against speech that creates a discriminatorily hostile work environment would pass constitutional muster. Harris , coming less than two years after the decision in R.A.V., buttresses this impression." (Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, supra, 1994 Sup.Ct. Rev. 1, 12.) Like Professor Fallon, we do not find the message of R.A.V., Harris, and Meritor nearly as opaque as suggested in the concurring opinion. [5]
*144 The concurring opinion ultimately agrees that speech that violates Title VII by permeating the workplace with "`discriminatory intimidation, ridicule, and insult,' [citation], that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and created an abusive work environment,' [citation]" ( Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 21 , 114 S.Ct. 367 , 126 L.Ed.2d 295 ) is not protected by the First Amendment, but the concurring opinion reaches this conclusion primarily by weaving together "strands of analysis" from several areas of First Amendment jurisprudence. (Cone, opn. of Werdegar, J., post, 87 Cal.Rptr.2d at pp. 152, 157, 980 P.2d at pp. 864, 868.) We find such efforts unnecessary in light of the rulings of the United States Supreme Court in Harris, supra, and Meritor Savings Bank v. Vinson, supra , and the statement in R.A.V. v. St. Paul, supra, 505 U.S. 377 , that harassing speech that is sufficiently severe or pervasive to constitute employment discrimination is not constitutionally protected. [6]
Defendants contend that, although it is proper to punish a defendant after the fact for a violation of the FEHA based upon spoken words, the trial court's injunction against the use of future epithets is an invalid prior restraint of speech. ( Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419 , 91 S.Ct. 1575 , 29 L.Ed.2d 1 ; Near v. Minnesota, supra, 283 U.S. 697, 713 , 51 S.Ct. 625 , 75 L.Ed. 1357 .) Under well-established law, however, the injunction at issue is not an invalid prior restraint, because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants from continuing their unlawful activity.
In Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436, 437 , 77 S.Ct. 1325 , 1 L.Ed.2d 1469 , the United States Supreme Court upheld a criminal provision authorizing a "`limited injunctive remedy"" prohibiting "the sale and distribution of written and printed matter found after due trial to be obscene." The defendants did not contest that the printed material at issue was obscene, but argued that issuance of an injunction *145 "amounts to a prior censorship" in violation of the First Amendment. ( Id. at p. 440, 77 S.Ct. 1325 .) The high, court rejected this argument, quoting Near v. Minnesota, supra, 283 U.S. 697, 716 , 51 S.Ct. 625 , 75 L.Ed. 1357 , for the proposition that "`the protection even as to previous restraint is not absolutely unlimited,'" and observing: "The phrase `prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test." ( 354 U.S. at p. 441 , 77 S.Ct. 1325 .) In upholding the statute, the court noted that the defendants "were enjoined from displaying for sale or distributing only the particular booklets theretofore published and adjudged to be obscene." ( Id. at p. 444, 77 S.Ct. 1325 .) The high court then distinguished as "glaringly different" ( id. at p. 445, 77 S.Ct. 1325 ) the decision in Near v. Minnesota, supra, 283 U.S. 697 , 51 S.Ct. 625 , 75 L.Ed. 1357 , in which the abatement as a public nuisance of a newspaper was found to be an invalid prior restraint, noting that the abatement in Near "enjoin[ed] the dissemination of future issues of a publication because its past issues had been found offensive," which is "`the essence of censorship,'" while the injunction in Kingsley Books "studiously withholds restraint upon matters not already published and not yet found to be offensive." ( 354 U.S. at p. 445 , 77 S.Ct. 1325 .)
In Times Film Corp. v. Chicago (1961) 365 U.S. 43, 44 , 81 S.Ct. 391 , 5 L.Ed.2d 403 , a film distributor challenged a municipal ordinance that required "submission of all motion pictures for examination prior to their public exhibition," claiming this was an invalid prior restraint on expression. The film distributor argued that the state must permit the motion picture to be shown and only thereafter could punish any violation of law that occurred. The high court disagreed and upheld the ordinance, stating that the distributor's argument "is founded upon the claim of absolute privilege against prior restraint under the First Amendment—a claim without sanction in our cases." ( Id. at p. 49, 81 S.Ct. 391 .)
The decision in Freedman v. Maryland (1965) 380 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 , reaffirmed the rule announced in Times Film Corp. v. Chicago, supra, 365 U.S. 43 , 81 S.Ct. 391 , 5 L.Ed.2d 403 , that a requirement of submission of motion pictures in advance of exhibition does not necessarily constitute an invalid prior restraint, but clarified that such a requirement must include "procedural safeguards designed to obviate the dangers of a censorship system." ( Freedman v. Maryland supra, 380 U.S. at p. 58 , 85 S.Ct. 734 .) One such safeguard is that before an injunction may issue prohibiting the exhibition of a motion picture, there must be a judicial determination that the film does not constitute protected expression. The high court stated: "The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. [Citations.]" ( I bid. )
In Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 55 , 93 S.Ct. 2628 , 37 L.Ed.2d 446 , the high court upheld a Georgia statute authorizing an injunction prohibiting the exhibition of obscene materials, stating: "Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected."
In Pittsburgh Press Co. v. Human Rel. Comm'n., supra, 413 U.S. 376 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 , the United States Supreme Court upheld an order prohibiting a newspaper from publishing advertisements in a manner that would constitute employment discrimination. The city ordinance at issue in that case proscribed discrimination in employment in a manner similar to the FEHA and had been interpreted to forbid newspapers from carrying *146 "help wanted" advertisements in gender-designated columns under captions such as "Male Help Wanted" and "Female Help Wanted." Observing that the ordinance made sexual discrimination in employment illegal, the high court held that the First Amendment did not protect such illegal conduct, stating: "We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes." (413 U.S. at p. 388, 93 S.Ct. 2553 .) The high court concluded: "Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity." [7] (413 U.S. at p. 389, 93 S.Ct. 2553 .)
The court in Pittsburgh Press Co. then addressed the argument that the order forbidding the newspaper from publishing the advertisements in gender-designated columns was a prohibited prior restraint on expression. The high court, first noting that it never had held that all injunctions against newspapers were impermissible, stated: "The special vice of a prior restraint is that communication will be suppressed... before an adequate determination that it is unprotected by the First Amendment. [¶] The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. [Citations.] Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relief was granted, the order will not have gone into effect before, our final determination that the actions of Pittsburgh Press were unprotected." (413 U.S. at p. 390, 93 S.Ct. 2553 , fn. omitted; see also Madsen v. Women's Health Center (1994) 512 U.S. 753, 764, fn. 2 , 114 S.Ct. 2516, 2524, fn. 2 , 129 L.Ed.2d 593, 607, fn. 2 ["Not all injunctions that may incidentally affect expression, however, are `prior restraints' in the sense that the term was used in New York Times Co. [v. United States (1971) 403 U.S. 713 [ 91 S.Ct. 2140 , 29 L.Ed.2d 822 ]] or Vance [v. Universal Amusement Co., Inc. (1980) 445 U.S. 308 [ 100 S.Ct. 1156 , 63 L.Ed.2d 413 ]]."].)
The foregoing high court decisions recognize that 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" of speech. ( Kramer v. Thompson (3d Cir. 1991) 947 F.2d 666, 675 ["The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected."].) For the same reason, the injunction at issue in the present case does not constitute a prohibited prior restraint on expression, provided the order "is clear and sweeps no more broadly than necessary." ( 413 U.S. 376, 390 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 .) The injunction at issue is based upon a continuing course of repetitive speech that has been judicially determined to violate the FEHA. Thus, prohibiting Avis and Lawrence from continuing to violate the FEHA does not violate their First Amendment rights.
*147 A persuasive discussion is found in Auburn Police Union v. Carpenter (1st Cir. 1993) 8 F.3d 886 , which upheld a Maine statute prohibiting persons from soliciting property for the benefit of a law enforcement officer, agency, or association. Violations of the statute could be enjoined and penalized civilly. The court of appeals rejected the argument that an injunction against such solicitation necessarily would constitute an invalid prior restraint on expression: "A prior restraint is a government regulation that limits or conditions in advance the exercise of protected First Amendment activity. [Citation.] Although the classic form of prior restraint involves an administrative licensing scheme, [citation], a judicial injunction that prohibits speech prior to a determination that the speech is unprotected also constitutes a prior restraint. [Citation.] Any system of prior restraints of speech `comes to this Court bearing a heavy presumption against its constitutional validity.' [Citation.] [¶] ... [¶] The Supreme Court, however, `has never held that all injunctions are impermissible.' [Citation.] `The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.' [Citation.] An injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint." ( Id. at p. 903; Retail Credit v. Russell (1975) 234 Ga. 765, 779 , 218 S.E.2d 54, 62 ["`The present order [an injunction prohibiting the defendant from continuing to report false credit information about the plaintiff] does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the court is asked to speculate as to the effect of publication.' "]; Haseotes v. Cumberland Farms, Inc. (Bankr.D.Mass.1997) 216 B.R. 690, 695 .) [8]
By parity of reasoning, the pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the First Amendment, and such unlawful conduct properly may be enjoined. (Cf. EEOC v. Beverage Canners, Inc. (11th Cir.1990) 897 F.2d 1067 , 1070 [upholding injunction directed to racially abusive language in workplace, without addressing free speech issues]; Robinson v. Jacksonville Shipyards, Inc. (M.D.Fla.1991) 760 F.Supp. 1486, 1535 [holding that First Amendment does not bar injunctive relief against continuing course of conduct found to constitute *148 sexual harassment, including verbal harassment and display of sexually explicit photographs: "[T]he pictures and verbal harassment are not protected speech because they act as discriminatory conduct in the form of a hostile work environment."].) As the amicus curiae brief of the American Civil Liberties Union of Northern California suggests, the controlling authorities establish that "[s]peech may be enjoined where a fair judicial process has determined that a repetitive pattern of speech is unprotected."
B.
Defendants also argue that the injunction violates the California Constitution. Article I, section 2, subdivision (a), of the California Constitution states: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Avis and Lawrence rely heavily on a decision of this court, handed down more than a century ago, interpreting an earlier version of this provision.
In Dailey v. Superior Court (1896) 112 Cal. 94, 97 , 44 P. 458 , this court invalidated a superior court order prohibiting the performance or advertising of a play that was based upon the circumstances of a pending criminal case that was about to go to trial, unequivocally declaring: "We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an attempted infringement upon rights guaranteed to every citizen by section 9, article I, of the constitution of this state. That section provides: `Every citizen may freely speak, write and publish his [or her] sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.' The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible at the hands of the law for an abuse of that right. He shall have no censor over him to whom he must apply for permission to speak, write, or publish, but he shall be held accountable to the law for what he speaks, what he writes, and what he publishes. It is patent that this right to speak, write, and publish, cannot be abused until it is exercised, and before it is exercised there can be no responsibility."
The above quoted language in Dailey cannot be interpreted as broadly as defendants suggest, to prohibit a court, under all circumstances, from enjoining "speech." The circumstances in Dailey involved a true prior restraint in which the superior court had prohibited the production of a play prior to its first performance simply because the play was based upon the circumstances of a pending criminal case. The court in Dailey was not faced with the question whether an injunction prohibiting the continuation of conduct that has been judicially determined to be unlawful constitutes a prior restraint. Dailey , therefore, does not support the position that the injunction in the present case constitutes an invalid prior restraint. ( Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 , 39 Cal. Rptr. 377 , 393 P.2d 689 ["Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered."].)
Recent decisions of this court demonstrate that we have not adopted the rule advocated by defendants, that any injunction impinging upon the right of free expression constitutes an invalid prior restraint. In Wilson v. Superior Court (1975) 13 Cal.3d 652 , 119 Cal.Rptr. 468 , 532 P.2d 116 , while we observed that our state constitutional guarantee of free speech and press is "more definitive and inclusive than the First Amendment" ( id. at p. 658, 119 Cal.Rptr. 468 , 532 P.2d 116 ), we recognized at the same time that "an injunction restraining speech may issue in some circumstances *149 to protect private rights [citation] or to prevent deceptive commercial practices [citation]." ( Id. at p. 662, 119 Cal.Rptr. 468 , 532 P.2d 116 .) In People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 57 , 130 Cal.Rptr. 328 , 550 P.2d 600 , we rejected the argument that enjoining the exhibition of obscene films or magazines would constitute an impermissible prior restraint, stating: "Thus, in the matters before us if the trial court finds the subject matter obscene under prevailing law an injunctive order may be fashioned that is `proper and suitable' in each case. It is entirely permissible from a constitutional standpoint to enjoin further exhibition of specific magazines or films which have been finally adjudged to be obscene following a full adversary hearing. ( Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 54-55 , 93 S.Ct. 2628 , 37 L.Ed.2d 446 .)" (Italics added.)
In Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 , 153 Cal.Rptr. 802 , 592 P.2d 289 , we affirmed an order of the Public Utilities Commission terminating a subscriber's telephone service on the ground that the service was being used to violate the law. At hearings before the commission, evidence was introduced establishing that the subscriber was operating a business offering outcall massage and nude modeling services. The commission found that the subscriber's telephone service had been used to facilitate the violation of Penal Code section 647, subdivision (b), which prohibits soliciting or engaging in an act of prostitution. The subscriber argued that terminating his telephone service violated his right to free speech. We rejected this argument, quoting the high court's decision in Pittsburgh Press Co. v. Human Rel. Comm'n., supra, 413 U.S. 376 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 : "[T]elephone communication which does `no more than propose a commercial transaction' can be ... protected `commercial speech.' By the same token, however, when such communication proposes, discusses, or is intended to encourage or facilitate a commercial transaction which is itself illegal, the principle established in the Pittsburgh Press case is applicable. Thus: `Any First Amendment interest which might be served by [telephone communications concerning] an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on [telephone communication] is incidental to a valid limitation on economic activity.'" ( 23 Cal.3d at p. 657 , 153 Cal.Rptr. 802 , 592 P.2d 289 , italics in Goldin. )
Most recently, in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 , 60 Cal. Rptr.2d 277 , 929 P.2d 596 , our court, in upholding against a First Amendment challenge the validity of an injunction restraining a wide array of future activities of gang members, explained that in a variety of respects a specific injunction, issued against a particular party on the basis of a proven past course of conduct, poses less of a danger to free speech interests than a general statutory prohibition. We noted: "As with any injunction, the preliminary decree here is addressed to identifiable parties and to specific circumstances; the enjoined acts are particularly described in the trial court's order. Unlike the pervasive `chill' of an abstract statutory command that may broadly affect the conduct of an absent class and induce self-censorship, the decree here did not issue until after these defendants had had their day in court, a procedure that assures ` "a prompt and carefully circumscribed determination of the issue."' [Citation.]" ( 14 Cal.4th at p. 1114 , 60 Cal.Rptr.2d 277 , 929 P.2d 596 , italics omitted.)
Under the California Constitution, as under its federal counterpart, the injunction in the present case thus does not constitute a prohibited prior restraint of speech, because defendants simply were enjoined from continuing a course of repetitive speech that had been judicially determined *150 to constitute unlawful harassment in violation of the FEHA.
V
Defendants further claim that, even if some injunctive relief against future racial epithets is permissible, the order in this case is invalid because it is overly broad. As noted above, one provision of the injunction prohibited defendant Lawrence from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc...." The Court of Appeal upheld this provision to the extent it prohibited Lawrence "from continuing to use racist epithets in the workplace," but ruled that, to the extent the prohibition applied to conduct outside the workplace, "it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly." In further response to defendants' claim, the Court of Appeal additionally restricted the injunction by directing the trial court to add to the injunction "an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets, such as those actually used in the workplace by Lawrence" in order to "more precisely warn Lawrence and Avis what is forbidden." Because neither plaintiffs nor defendants have sought review of those limitations of the scope of the injunction, their validity is not before us and we express no opinion on that matter.
Defendants assert that, even as modified by the Court of Appeal, the injunction is overly broad because it enjoins Lawrence from employing racially derogatory terms "descriptive of Avis's Hispanic employees, even outside the hearing of those employees.
Defendants argue that the use of racial epithets outside the hearing of Hispanic employees does not contribute to a hostile work environment if the audience does not find the speech unwelcome and the subjects of the racial invective are unaware they are being maligned. The Court of Appeal disagreed, stating: "Continual use of racist epithets poisons the atmosphere of the workplace, even when some of the invective is not directed at or even heard by the victims. If the Hispanic/Latino employees at Avis's San Francisco airport location know that Lawrence is free to continue voicing his on-the-job racist epithets behind their backs, it will remain a hostile place at which to work. Under the present circumstances, where there was direct racist invective, continued indirect invective would serve to maintain an abusive work environment, and thus both are properly enjoined."
The United States Supreme Court has held that an injunction that imposes a content-neutral restriction upon expression must "burden no more speech than necessary to serve a significant government interest. [Citations.]" ( Madsen v. Women's Health Center, supra, 512 U.S. 753, 765 , 114 S.Ct. 2516, 2524-2525 , 129 L.Ed.2d 593, 608 ; People ex rel. Gallo v. Acuna, supra, 14 Cal.4th 1090, 1120 , 60 Cal.Rptr.2d 277 , 929 P.2d 596 .) The high court explained: "Our close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, `that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.' [Citations.]" ( Madsen v. Women's Health Center, supra, 512 U.S. at p. 765 , 114 S.Ct. at p. 2525, 129 L.Ed.2d at p. 608 .)
Because defendants elected not to provide a transcript of the trial proceedings, we have no basis upon which to conclude that, in the particular circumstances of this case, it was unnecessary to prohibit the use of the racial epithets even outside the hearing of plaintiffs, in order to prevent a continuation of the hostile work environment. It certainly is possible that the use of racial epithets even outside the hearing of plaintiffs would contribute to an *151 atmosphere of racial hostility that would perpetuate the hostile work environment created by defendants. Nothing in the limited record before us suggests that the injunction was more burdensome than necessary to prevent future violations of the FEHA. [9] The trial court found that John Lawrence's use of racial epithets was sufficiently severe or pervasive to constitute employment discrimination. The trial court further found that injunctive relief was necessary to prevent a continuation of the abusive work environment. Accordingly, the trial court enjoined Lawrence from "using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc." Because Lawrence's past use of such epithets in the workplace had been judicially determined to violate the FEHA, prohibiting him from continuing this discriminatory activity does not constitute an invalid prior restraint of speech.
VI
The judgment of the Court of Appeal is affirmed.
BAXTER, J., and CHIN, J., concur.
Concurring Opinion by WERDEGAR, J.
This case presents the collision of two very basic values protected by the United States Constitution. The first is to live one's life free of racial discrimination. (U.S. Const., Amend.XIV.) The second is to speak one's mind free of government censorship. (U.S. Const., Amend.I.) The trial court balanced these two bedrock constitutional principles to conclude defendant John Lawrence validly could be enjoined from engaging in a form of speech a jury found was in violation of the Fair Employment and Housing Act. (Gov.Code, § 12900 et seq. (hereafter FEHA).) A divided Court of Appeal affirmed the trial court *152 judgment, but remanded the case to the trial court with directions to narrow the terms of the injunction by limiting it to the workplace and to provide an exemplary list of prohibited words.
To the extent the plurality opinion affirms the judgment of the Court of Appeal, and with my understanding of the purpose and context of the "exemplary list" of words (see post, 87 Cal.Rptr.2d at p. 151, fn. 9 , 980 P.2d at p. 862, fn. 9 ), I concur. [1] I write separately because the plurality opinion does not address what I believe to be a critical preliminary question, that is, whether the First Amendment permits imposition of civil liability under FEHA for pure speech that creates a racially hostile or abusive work environment. By declining to address this question, the plurality opinion fails to acknowledge that we, are with this case sailing into uncharted First Amendment waters. No decision by the United States Supreme Court has, as yet, declared that the First Amendment permits restrictions on speech creating a hostile work environment; indeed, the question is one of considerable debate among First Amendment scholars. [2] (Volokh, How Harassment Law Restricts Free Speech (1995) 47 Rutgers L.Rev. 563; Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight (1995) 47 Rutgers L.Rev. 461 (Sangree, No Collision in Sight ); Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark (1994) 1994 Sup.Ct. Rev. 1 (Fallon, Sexual Harassment ); Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment (1993) 68 Notre Dame L.Rev. 1003; Comment, Freedom of Speech and Workplace Harassment (1992) 39 U.C.L.A. L.Rev. 1791 (Volokh, Workplace Harassment ); Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment (1991) 52 Ohio St. L.J. 481 (Browne, Title VII as Censorship ); Strauss, Sexist Speech in the Workplace (1990) 25 Harv. C.R.-C.L. L.Rev. 1.) Accordingly, a serious question arises whether or not the injunction in this case constitutes an impermissible prior restraint on defendant John Lawrence's speech.
As I explain, despite the absence of any direct United States Supreme Court authority finding speech creating a hostile work environment falls outside the protection of the First Amendment, existing high court decisions provide strands of analysis that, woven together, produce a coherent theory that explains why the injunction in this case does not violate defendant Lawrence's First Amendment rights.
I
At the outset, I note the appellate record in this case is woefully inadequate. Defendants proceeded in this appeal by relying on an appellants' appendix in lieu of a clerk's transcript. This is a permissible *153 choice under the rules governing appellate procedure (see Cal. Rules of Court, rule 5.4), but, as a consequence of that choice, the record does not reveal what defendant Lawrence said that the jury found created a hostile work environment in violation of FEHA. The record also does not reveal how often he made the offending utterances or in what context. Defendants, of course, as the appellants in this case, bear the burden of providing a record on appeal that is adequate to adjudicate their claims. ( Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532, 1535 , 254 Cal.Rptr. 492 ; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 , 243 Cal.Rptr. 298 ; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, pp. 562-564.) If the record furnished is insufficient to establish the merits of an appellant's legal position, it is the appellant who bears the risk of uncertainty caused by the lacuna. (See, e.g., plur. opn., ante, 87 Cal.Rptr.2d at pp. 140-141, 980 P.2d at pp. 852-853 [rejecting claims for failure to provide an adequate record]; Null v. City of Los Angeles, supra, at p. 1536, 254 Cal.Rptr. 492 .)
Even if defendants took this risk willingly, for an appellate court to adjudicate an important First Amendment case on such a sketchy record is unfortunate. Were we apprised of the nature and frequency of Lawrence's verbal outbursts against plaintiffs, perhaps we would find his speech did not actually create a hostile work environment, thereby rendering resolution of this important constitutional issue unnecessary. (See People v. Hernandez (1998) 19 Cal.4th 835, 845-848 , 80 Cal.Rptr.2d 754 , 968 P.2d 465 (dis. opn. of Werdegar, J.) [court should not decide constitutional issues until necessary to do so]; People v. Bennett (1998) 17 Cal.4th 373, 393 , 70 Cal. Rptr.2d 850 , 949 P.2d 947 (cone. opn. of Werdegar, J.) [same].) Were we provided with a record describing the nature of Lawrence's epithets, perhaps we would find, for example, that his speech fell into the category of so-called "fighting words," which the high court has found unprotected by the First Amendment. (See Chaplinsky v. New Hampshire (1942) 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 .) Or perhaps, if his offensive speech was combined with conduct, different First Amendment concerns would be implicated. (See Texas v. Johnson (1989) 491 U.S. 397 , 109 S.Ct. 2533 , 105 L.Ed.2d 342 ; United States v. O'Brien (1968) 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 .)
Lacking a record that would resolve these questions, we must decide the case as we find it. I proceed now to explain briefly why I find the plurality opinion's analysis unsatisfactory; I next put forth a different analysis supportive of the judgment.
II
From the abbreviated record provided by defendants, we may discern that the jury found defendant Lawrence created a hostile work environment by engaging in a continuous pattern and practice of using racial and other epithets to demean and embarrass a group of Latino workers. The plurality opinion concludes we need not in this case confront the thorny constitutional question of whether speech alone may constitute the basis for liability based on the creation of a hostile work environment, reasoning that "defendants have not challenged the finding that their past conduct amounted to unlawful employment discrimination in violation of the FEHA, [so] we need not, and do not, address that broad issue here." (Plur. opn., ante, 87 Cal.Rptr.2d at p. 139, fn. 3 , 980 P.2d at p. 852, fn. 3 .)
By taking this approach, the plurality opinion never establishes the speech at issue in this case is unprotected by the First Amendment. Although the opinion declares that under "well-established law" the injunction is not an invalid prior restraint, "because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants *154 from continuing their unlawful activity" (plur. opn., ante, 87 Cal.Rptr.2d at p. 144 , 980 P.2d at pp. 856-857), as discussed at greater length hereafter ( post, at pp. 155-157, 980 P.2d at pp. 866-868), I can locate no authority from this court or the United States Supreme Court that concludes speech in the workplace that creates a racially hostile work environment, standing alone, can be made the basis of civil liability (under either FEHA or the similar federal law, title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (hereafter title VII) [3] ) consistent with the First Amendment's guarantee that the state shall not make laws "abridging the freedom of speech." (See Gitlow v. New York (1925) 268 U.S. 652, 666 , 45 S.Ct. 625 , 69 L.Ed. 1138 [applying the First Amendment to the states].)
The plurality opinion's implicit assumption that a legislative body can validly pass a statute having the effect of removing constitutional protection from speech is unfounded. For example, the mere fact Congress has decreed (by enacting title VII) that the creation of an abusive or hostile work environment violates federal law does not necessarily mean racial speech creating such a work atmosphere is unprotected by the First Amendment. Congress cannot, by legislation, change the scope of one's First Amendment rights. ( United States v. Eichman (1990) 496 U.S. 310 , 110 S.Ct. 2404 , 110 L.Ed.2d 287 [Flag Protection Act of 1989 violated the First Amendment]; cf. City of Boerne v. Flares (1997) 521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 [Congress's attempt to redefine scope of free exercise clause by enacting the Religious Freedom Restoration Act of 1993 found unconstitutional].) Likewise, the mere fact the jury found defendant Lawrence was in violation of FEHA does not necessarily mean his speech was unprotected by the First Amendment.
In sum, by relying on the jury's finding that defendants were liable for violating FEHA, together with defendants' failure to challenge that finding on appeal, the plurality opinion attempts to resolve this case without deciding the critical First Amendment question involved. In contrast, I believe we must confront the fundamental preliminary question whether speech creating a racially hostile work environment is protected by the First Amendment. I now turn to that question.
III
I begin my analysis with the recognition that we must assume for purposes of this appeal that defendant Lawrence engaged in a pervasive practice of hurling racially tinged insults at Latino workers, singling them out as the recipients of his offensive epithets. Defendant Avis Rent A Car System, Inc., Lawrence's employer, tolerated this outrageous workplace behavior and was thus complicit in the creation of a racially hostile and abusive work environment. Though I assume the majority of persons finds such words distasteful, their utterance nevertheless is generally protected by the free speech guarantee of the First Amendment to the United States Constitution. If Lawrence's invective would not have caused a reasonable person to react with violence ( Chaplinsky v. New Hampshire, supra, 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 ), if his words did not incite people to engage in imminent lawless action under circumstances making *155 such action reasonably likely ( Brandenburg v. Ohio (1969) 395 U.S. 444 , 89 S.Ct. 1827 , 23 L.Ed.2d 430 ( per curiam )), if his words were not obscene under the Miller test ( Miller v. California (1973) 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 ), if his words did not come within some other category of speech the high court has found outside the First Amendment's protective umbrella, then an injunction prohibiting Lawrence from expressing himself in his chosen manner simply because we (or the Legislature) disagree with his message or wish to protect listeners against hurt feelings raises serious constitutional concerns. [4]
It is true Lawrence chose to express himself in a rude and provocative manner, inevitably producing feelings of anger, hostility and humiliation in his listeners, the plaintiffs here. However, "[i]nsults may contain a point of view that the speaker is entitled to express and his audience to hear. `Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases.'" (Fried, The New First Amendment Jurisprudence: A Threat to Liberty (1992) 59 U. Chi. L.Rev. 225, 242, quoting NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 928 , 102 S.Ct. 3409 , 73 L.Ed.2d 1215 ; see also Greenawalt, Insults and Epithets: Are They Protected Speech? (1990) 42 Rutgers L.Rev. 287, 302 ["It is no coincidence that the less privileged and more radical are those who often use words and phrases that might be judged to impair civil discourse."].) As the Supreme Court has trenchantly observed, "[s]urely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us." ( Cohen v. California (1971) 403 U.S. 15, 25 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 .)
What, then, of the rights of the Latino workers, who were the unwilling targets of Lawrence's racial invective? Do they have the right not to listen, a right to work free of racial discrimination and intimidation? Do Lawrence's First Amendment rights trump their rights? Most fundamentally, do Lawrence's racially offensive epithets come within the protection of the First Amendment?
A. The Relevance of R.A.V. and Harris
As noted, ante, nothing in the decisions of the Supreme Court provides definitive guidance on whether racist speech at the workplace that is so pervasive and constant that it creates a hostile and abusive work environment is protected by the First Amendment's guarantee of freedom of speech. Hints from two decisions, however, suggest the high court considers such speech outside the protective scope of the First Amendment.
In 1992, the Supreme Court held the City of St. Paul's municipal ordinance banning certain hate speech was unconstitutional. ( R.A.V. v. St. Paul (1992) 505 U.S. 377 , 112 S.Ct. 2538 , 120 L.Ed.2d 305 ( R.A.V . ).) Justice Scalia, speaking for a five-justice majority, explained that, although fighting words in general are not *156 protected by the First Amendment, the city's ordinance unconstitutionally engaged in viewpoint discrimination by prohibiting hate speech on some topics but not others. Noting the ordinance outlawed fighting words "that insult, or provoke violence, `on the basis of race, color, creed, religion, or gender'" ( id. at p. 391, 112 S.Ct. 2538 ), the majority found it significant that "[d]isplays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use `fighting words' in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered." ( Ibid. )
The justices concurring separately in the R.A.V. decision expressed concern that the majority's rationale called into question the constitutionality of sexual harassment claims under title VII, which declares it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." (42 U.S.C. § 2000e-2(a)(1).) Thus, Justice White, writing for four justices, stated that "[u]nder the broad principle the Court uses to decide the present case, hostile work environment claims based on sexual harassment should fail First Amendment review...." ( R.A.V., supra, 505 U. S. at pp. 409-410, 112 S.Ct. 2538 (cone. opn. of White, J.).)
Addressing this question, Justice Scalia replied that title VII claims did not come within the ambit of the majority's analysis: "since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. [Citations.] Thus, for example, sexually derogatory `fighting words,' among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, [citations]." ( R.A.V., supra, 505 U.S. at p. 389 , 112 S.Ct. 2538 , italics added.)
Of course, R.A.V. did not involve a title VII claim and thus its pronouncement on whether such a claim would survive under the First Amendment is dictum. Moreover, what Justice Scalia was referring to when he explained that, in addition to fighting words, some "other words" could produce a constitutionally valid hostile work environment claim under title VII is unclear. We need not unravel this conundrum, however. It is enough for us to recognize that "[w]hen the majority and concurring opinions are viewed in conjunction, it appears that all nine Justices participating in R.A.V. assumed that the core Title VII prohibition against speech that creates a discriminatorily hostile work environment would pass constitutional muster." (Fallon, Sexual Harassment, supra, 1994 Sup.Ct. Rev. at p. 12.) Thus, although R.A.V. did not "hold" that harassing workplace speech violative of title VII is unprotected speech, the opinions in the case suggest the court would so hold.
The next year, the Supreme Court gave a further hint of its views when it decided Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 , 114 S.Ct. 367 , 126 L.Ed.2d 295 ( Harris ). Harris concerned a sexual harassment claim under title VII, the basis of which involved both conduct and speech. For example, the defendant's male president made Harris, the plaintiff, the target of sexual innuendo and made comments such as "`You're a woman, what do you know'" and that Harris was "`a dumb ass woman.'" ( Harris, supra, at p. 19, 114 S.Ct. 367 .) He also made sexually suggestive comments about Harris's clothing. ( Ibid. ) Because the case involved the defendant's speech as a contributory factor to the creation of a hostile work environment, "[s]ome observers therefore thought *157 that the Supreme Court might use Harris to clarify the bearing of the First Amendment on sexual harassment law and, in doing so, might cut back sharply on accepted theories of Title VII liability." (Fallon, Sexual Harassment, supra, 1994 Sup.Ct. Rev. at pp. 1-2.) That both the parties and amici curiae briefed the First Amendment issue before the court further supported this belief. ( Id. at pp. 9-10 & fns. 44-47.)
It was not to be. The Supreme Court in Harris simply found that, where an abusive and hostile work environment is created in violation of title VII, the plaintiffs entitlement to relief is not dependent on her ability to show she suffered psychological injury. ( Harris, supra, 510 U.S. at p. 22 , 114 S.Ct. 367 .) Neither Justice O'Connor, who wrote for the Harris majority, nor Justices Scalia or Ginsburg, concurring separately, mentions whether harassing speech, standing alone, may constitute a violation of title VII consistent with the First Amendment. [5]
The question thus remains open. [6] Nevertheless, I find strands of analysis in several high court decisions which, taken together, indicate that, even if speech creating a racially hostile or abusive work environment is protected by the First Amendment, such speech may be subject to some restrictions consistent with that amendment. I turn now to discussion of these strands.
B. Speech in the Workplace
Of course, speech is not wholly protected from government regulation in all places; the location of the speech is relevant to the degree of protection, if any, the speech will receive under the First Amendment. ( Frisby v. Schultz (1988) 487 U.S. 474, 479 , 108 S.Ct. 2495 , 101 L.Ed.2d 420 ( Frisby ) ["To ascertain what limits, if any, may be placed on protected speech, we have often focused on the `place' of that speech, considering the nature of the forum the speaker seeks to employ."]; Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 302-303 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 (plur.opn.) ["[T]he nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the [First] Amendment to the speech in question."].)
For example, speech uttered in a traditional public forum is afforded the highest degree of protection from state regulation. ( Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45 , 103 S.Ct. 948 , 74 L.Ed.2d 794 ( Perry ).) Streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." ( Hague v. C.I.O. (1939) 307 U.S. 496, 515 , 59 S.Ct. 954 , 83 L.Ed. 1423 .) Content-based restrictions on speech uttered in a traditional public forum must be narrowly tailored to achieve a compelling state interest. ( Perry, supra, at p. 45 , 103 S.Ct. 948 .)
Speech may occur in nonpublic fora as well, but in such cases the government is permitted to place reasonable restrictions on speech, even based on its content. (See Jones v. North Carolina Prisoners' Union (1977) 433 U.S. 119 , 97 S.Ct. 2532 , 53 L.Ed.2d 629 [prison]; Greer v. Spock (1976) 424 U.S. 828 , 96 S.Ct. 1211 , 47 L.Ed.2d 505 [military base]; Adderley v. Florida (1966) 385 U.S. 39 , 87 S.Ct. 242 , 17 *158 L.Ed.2d 149 [jail].) Thus, speech in nonpublic fora is subject to reasonable time, place and manner restrictions, and "the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." ( Perry, supra, 460 U.S. at p. 46 , 103 S.Ct. 948 .)
Not all speech-related activity occurs publicly in traditional public or even nonpublic fora. For most adult Americans, a great deal of time is spent at work. That the speech at issue in this case occurred at plaintiffs' workplace is significant, because the Supreme Court has recognized that speech occurring in the workplace presents special considerations that sometimes permit greater restrictions on First Amendment rights. For example, in Connick v. Myers (1983) 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 ( Connick ), an assistant district attorney unhappy with a job transfer circulated a questionnaire in her office, asking her colleagues their opinion about "[the] office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns." ( Id. at p. 141, 103 S.Ct. 1684 , fn. omitted.) The district attorney fired her in part for this speech-related action, but the district court ordered her reinstated. The circuit court of appeals affirmed. The Supreme Court granted certiorari and reversed. The court explained that, with the exception of the question about political campaigns, the plaintiffs speech was not a matter of "public concern" and that "[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." ( Id. at p. 146, 103 S.Ct. 1684 .) Thus, the Supreme Court held the employee's free speech rights could constitutionally be curtailed on the job. (See also Branti v. Finkel (1980) 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 [recognizing that for some public jobs, an employer could fire an employee for belonging to a particular political party without violating the employee's First Amendment rights, but holding assistant public defender is not such a job]; but see Rankin v. McPherson (1987) 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 ( Rankin ) [violation of clerical employee's First Amendment rights for constable to fire her for expressing opinion, while on the job, that she disagreed with the president's policies and hoped he would be killed]; Rosenthal, Permissible Content Discrimination Under the First Amendment: The Strange Case of the Public Employee (1998) 25 Hastings Const. L.Q. 529 , 550-551 [criticizing Connick and arguing that Connick and Rankin "point in different directions"].)
The intersection of an individual's place of employment and his or her free speech rights also appeared in CSC v. Letter Carriers (1973) 413 U.S. 548 , 93 S.Ct. 2880 , 37 L.Ed.2d 796 ( Letter Carriers ). In that case, the high court held the Hatch Act (5 U.S.C. former § 7324(a)(2), now see § 7323), which as then written prohibited federal employees from taking active roles in political campaigns for public office, did not violate federal employees' rights under the First Amendment. Although activity in political campaigns is core political speech that would otherwise be entitled to the highest constitutional protection, the court found substantial public policy reasons justified the limitation on employee speech. "[A] judgment [was] made by this country over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited." ( Letter Carriers, supra, at p. 557 , 93 S.Ct. 2880 ; but see Bauers v. Cornett (8th Cir.1989) 865 F.2d 1517 , 1523 *159 [explaining that Hatch Act was amended after Letter Carriers ].) Thus, a strong public policy in avoiding coercing public employees to work on political campaigns justified restrictions on employees' First Amendment rights. (Cf. Snepp v. United States (1980) 444 U.S. 507 , 100 S.Ct. 763 , 62 L.Ed.2d 704 ( per curiam ) [imposition of constructive trust on book profits justified by failure of former Central Intelligence Agency employee, in violation of employment agreement, to obtain pre-clearance from agency before publishing book based on admittedly unclassified information].)
Thus, in order to vindicate sufficiently weighty public policies governing the workplace, the high court has in the past found the First Amendment rights of employees must sometimes give way. In the cases described above, however, the government directly restricted the speech of public employees. Not so with NLRB v. Gissel Packing Co. (1969) 395 U.S. 575 , 89 S.Ct. 1918 , 23 L.Ed.2d 547 ( Gissel ). In that case, a private employer, Sinclair Company, faced a union organizing campaign among its workers. When the president of Sinclair Company first learned of the campaign, he spoke to his employees, attempting to dissuade them from joining a union. He stated that the workers were forgetting the "`lessons of the past'" when a prior strike had shut down the plant for three months and the plant had then reopened without a union contract; that the company was still on "`thin ice'" financially; that a strike "`could lead to the closing of the plant'"; and that because of their age and the limited usefulness of their skills, the workers would not find ready employment if the plant closed. ( Id. at pp. 587-588, 89 S.Ct. 1918 .) In the weeks leading up to the election, the company sent each of the workers letters and pamphlets to the same effect. ( Id. at pp. 588-589, 89 S.Ct. 1918 .) When the union lost the election, it filed objections to the employer's communications.
As pertinent here, the National Labor Relations Board (NLRB) found Sinclair Company's communications with its workers violated section 8(a)(1) of the National Labor Relations Act, codified at 29 United States Code section 158 (a): "It shall be an unfair labor practice for an employer— [¶] (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." Title 29, United States Code section 158 (c) provides: "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit." The United States Court of Appeals for the First Circuit affirmed the NLRB's ruling.
On certiorari before the Supreme Court, Sinclair Company argued that application of these rules to the speech of its president violated his First Amendment rights. The high court rejected the argument, reasoning that "[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. " ( Gissel, supra, 395 U.S. at p. 617, 89 S.Ct. 1918 , italics added.) The Supreme Court emphasized that the employer's First Amendment rights must be balanced against "the equal rights of the employees to associate freely," and the court must "take into account the economic dependence of the employees on their employers." ( Ibid. ) In such a setting, said the court, free speech rights in the workplace must be distinguished from speech relating to "the election of legislators or the enactment of legislation ... where the independent voter may be freer to listen more objectively and employers as a class freer to talk." ( Id. at pp. 617-618, 89 S.Ct. 1918 .) In short, because the speech at issue occurred at the workplace, some restrictions on speech could be tolerated that would be impermissible if applied to speech in other settings.
*160 Of course, employees retain First Amendment rights while on the job ( Rankin, supra, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 ; Branti v. Finkel, supra, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 ); Gissel did not create a general "workplace exception" to the First Amendment. Still, "in Gissel the Supreme Court validated congressional power, under the Commerce Clause, to impose content-based speech restrictions in the workplace to effectuate values embodied in the greater Constitution. The Gissel Court's holding, in large part, rested on its understanding of the unique nature of the employment relationship and the potential for even subtle coercion in this context to undermine valid economic policy which promotes constitutional interests." (Sangree, No Collision in Sight, supra, 47 Rutgers L.Rev. at p. 520; see also Fallon, Sexual Harassment, supra, 1994 Sup.Ct. Rev. at p. 19 [advocating development of a workplace speech doctrine "responding to distinctive features of the workplace"]; but see Volokh, Workplace Harassment, supra, 39 U.C.L.A. L.Rev. at pp. 1820-1822 [reading Gissel much more narrowly].)
Thus, Connick, Letter Carriers and Gissel demonstrate the Supreme Court's recognition that strong public policies governing the workplace—both private and public—may justify some limitations on the free speech rights of employers and employees. This view is consistent with the reality that workplaces and jobsites are not usually thought of as marketplaces for the testing of political and social ideas (Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment (1990) 1990 Duke L.J. 375 , 423 [suggesting some may view workplace speech as different from political speech generally]), and, therefore, the importance of preserving the workplace as a forum where free speech rights will outweigh other important constitutional considerations is diminished.
C. Employees Are a Captive Audience
In addition to high court authority recognizing free speech limitations at the workplace, another analytical strand that recurs frequently in Supreme Court decisions is relevant here. The Supreme Court has in a number of cases recognized that when an audience has no reasonable way to escape hearing an unwelcome message, greater restrictions on a speaker's freedom of expression may be tolerated. Stated differently, even if the speaker enjoys the right to free speech, he or she has no corollary right to force people to listen.
The relevance of a captive audience to determining the scope of First Amendment protection of speech is exemplified by Frisby, supra, 487 U.S. 474 , 108 S.Ct. 2495 , 101 L.Ed.2d 420 . In that case, the Supreme Court upheld an ordinance that prohibited focused picketing in front of an individual's home. Although picketing is generally characterized as core political speech ( Carey v. Brown (1980) 447 U.S. 455, 460 , 100 S.Ct. 2286 , 65 L.Ed.2d 263 ; Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 152 , 89 S.Ct. 935 , 22 L.Ed.2d 162 ) and was so in Frisby (the resident was targeted because he was a physician who performed abortions), the Supreme Court explained that "[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the `captive' audience cannot avoid the objectionable speech." ( Frisby, supra, at p. 487 , 108 S.Ct. 2495 .)
The high court responded to similar concerns in Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675 , 106 S.Ct. 3159 , 92 L.Ed.2d 549 ( Bethel School ). In Bethel School, the high court upheld discipline imposed on a high school student who gave a speech laced with sexual innuendo at a school assembly that many students were required to attend. Although relying largely on the presence of children at the assembly, the high court also stated that school authorities acting in loco parentis "[should] protect children— especially in a captive audience —from exposure to sexually *161 explicit, indecent, or lewd speech." ( Id. at p. 684, 106 S.Ct. 3159 , italics added.)
That the presence of a captive audience is important in determining the proper degree of First Amendment protection was also discussed in Rowan v. Post Office Dept. (1970) 397 U.S. 728 , 90 S.Ct. 1484 , 25 L.Ed.2d 736 ( Rowan ). In Rowan , the appellants challenged the constitutionality of a federal law that permitted householders to request their name be removed from mailing lists so they might not receive sexually themed mailings. The Supreme Court upheld the law, stating: "We ... categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even `good' ideas on an unwilling recipient. That we are often `captives' outside the sanctuary of the home and subject to objectionable speech... does not mean we must be captives everywhere." ( Id. at p. 738, 90 S.Ct. 1484 .)
In addition to Frisby, Bethel School and Rowan , numerous other cases have cited an audience's "captivity" as a factor justifying limitations on free speech. ( FCC v. Pacifica Foundation (1978) 438 U.S. 726, 748-750 , 98 S.Ct. 3026 , 57 L.Ed.2d 1073 (plur.opn.) ( Pacifica ) [possibility that nonconsenting adults might inadvertently tune in to radio broadcast containing indecent speech justified precluding broadcast during the day]; id. at p. 759, 98 S.Ct. 3026 (cone. opn. of Powell, J.) ["Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away ..., a different order of values obtains in the home."]; Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 209 , 95 S.Ct. 2268 , 45 L.Ed.2d 125 ( Erznoznik ) [restrictions on speech are justified when "the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure"]; id. at p. 218, 95 S.Ct. 2268 (cone, opn. of Douglas, J.) [endorsing view that "a narrowly drawn ordinance could be utilized within constitutional boundaries to protect the interests of captive audiences"]; Lehman v. City of Shaker Heights, supra, 418 U.S. at p. 302 , 94 S.Ct. 2714 (plur.opn.) [recognizing riders of public transit are a captive audience to advertising placed inside the cars]; id. at pp. 306-307, 94 S.Ct. 2714 (cone. opn. of Douglas, J.) [also recognizing bus riders are a captive audience]; Cohen v. California, supra, 403 U.S. at pp. 21-22, 91 S.Ct. 1780 [noting those objecting to the defendant's objectionable message, exhibited on his jacket, could simply avert their eyes].)
The relative captivity of plaintiffs here supports the restriction on defendant Lawrence's speech. Plaintiffs were not present at their job because they wished to hear Lawrence's particular views on their Latino heritage, but neither were they reasonably free to walk away when confronted with his racial slurs. Although plaintiffs could have avoided the undesired speech by quitting their jobs and seeking employment with more racially tolerant supervisors, the cases discussed above indicate the captive audience doctrine is not reserved for situations in which listeners are physically unable to leave, such as passengers on airplanes or inmates in prison. The Constitution does not require plaintiffs to sacrifice their employment to avoid a racially clamorous work environment any more than the doctor in Frisby, supra, 487 U.S. 474 , 108 S.Ct. 2495 , 101 L.Ed.2d 420 was required to move from his home, the students in Bethel School, supra, 478 U.S. 675 , 106 S.Ct. 3159 , 92 L.Ed.2d 549 were required to leave school, or the passengers in Lehman v. City of Shaker Heights, supra 418 U.S. 298 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 were required to walk home. People need not engage in heroic efforts before We will conclude they have sufficiently averted their eyes and plugged their ears. People need to work; expecting them to walk past someone *162 handing out leaflets on the sidewalk without accepting and reading the flyer is not the same as requiring them to walk off their job to avoid unwanted speech. So long as avoiding unwelcome speech is—as here—sufficiently "impractical" ( Erznoznik, supra, 422 U.S. at p. 209 , 95 S.Ct. 2268 ), we can conclude listeners constitute a captive audience, with the result that courts will show greater solicitude for their privacy and their right not to be forced to listen to unwelcome speech.
Most of the cases cited above concededly did not solely concern a captive audience. Frisby, Pacifica and Rowan relied in addition on the increased privacy interest in one's home. ( Frisby, supra, 487 U. S. at pp. 484-485, 108 S.Ct. 2495 ; Pacifica, supra, 438 U. S. at pp. 731, fn. 2, 748-749, 98 S.Ct. 3026 ; Rowan, supra, 397 U.S. at p. 738 , 90 S.Ct. 1484 [emphasizing "the sanctuary of the home"]; cf. Wilson v. Layne (1999) ___ U.S. ___, ___, 119 S.Ct. 1692, 1697 , ___ L.Ed.2d ___ ["The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home...."].) Bethel School and Pacifica relied also on the presence of children. ( Bethel School, supra, 478 U. S. at pp. 683-684, 106 S.Ct. 3159 ; Pacifica, supra, at pp. 731, fn. 2, 749-750 , 98 S.Ct. 3026 .) Pacifica, Rowan and Erznoznik involved, as well, lewd or indecent speech. ( Pacifica, supra, at pp. 739-740 , 98 S.Ct. 3026 ; Rowan, supra, at p. 730 , 90 S.Ct. 1484 ; Erznoznik, supra, 422 U.S. at p. 207 , 95 S.Ct. 2268 [ordinance prohibited drive-in theater with screen visible from public street from exhibiting any film portraying nudity].)
The applicability of the captive audience doctrine to harassing speech in the workplace is, moreover, debated by legal commentators. (Compare Volokh, Workplace Harassment, supra, 39 U.C.L.A. L.Rev. at pp. 1832-1843 [captive audience doctrine should not apply to the workplace], with Sangree, No Collision in Sight, supra, 47 Rutgers L.Rev. at pp. 515-518 [rejecting Professor Volokh's argument], and Volokh, How Harassment Law Restricts Free Speech, supra, 47 Rutgers L.Rev. at pp. 571-572 [replying to Professor Sangree]; cf. Cohen v. California, supra, 403 U.S. at p. 21, 91 S.Ct. 1780 ["Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense."].) Nevertheless, the Supreme Court authority discussed above firmly establishes, at the least, that the relative captivity of an audience is a relevant and important, if not dispositive, factor in determining whether government restrictions on speech in the workplace are permissible under the First Amendment. Applying that concept here, I find that although defendant Lawrence may desire to offer his apparently low opinion of the Latino workers at his place of employment, plaintiffs apparently do not wish to hear it. Further, plaintiffs were not free to walk away easily from Lawrence's speech, avert their eyes, cover their ears or otherwise avoid hearing his unwanted message. I conclude plaintiffs' status as forced recipients of Lawrence's speech lends support to the conclusion that restrictions on his speech are constitutionally permissible in the circumstances at hand, where the regulation of speech is limited solely to the workplace and the offended recipients constitute a captive audience.
D. The Injunction Here Is Similar to a Time, Place and Manner Regulation
A separate, but related, basis for countenancing an injunction in these circumstances is that an injunction restricting speech that creates a racially hostile work environment is analogous to a permissible time, place and manner restriction on speech. As a general matter, speech in even a traditional public forum may be subject to reasonable time, place and manner restrictions. ( Perry, supra, 460 U.S. at p. 45 , 103 S.Ct. 948 .) Such restrictions must be content-neutral, serve a significant government interest and "leave open ample alternative channels of communication." *163 ( Ibid. ) In a nonpublic forum, the government may also "reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." ( Id. at p. 46, 103 S.Ct. 948 .)
Time, place and manner rules generally have been applied to public and nonpublic fora. As a private employer's place of business, defendants' workplace is neither a public nor a nonpublic forum; it is private property. Nevertheless, the Supreme Court has "on at least one occasion applied [the time, place and manner doctrine] to conduct occurring on private property" ( Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 566 , 111 S.Ct. 2456 , 115 L.Ed.2d 504 (plur.opn.), referring to Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 ), and adapting to a private workplace the rules applicable to nonpublic fora does not seem inconsistent with the basic goals and purposes of the First Amendment. (See Robinson v. Jacksonville Shipyards, Inc. (M.D.Fla.1991) 760 F.Supp. 1486, 1535 ["the regulation of discriminatory speech in the workplace constitutes nothing more than a time, place, and manner regulation of speech"].) Private property is rarely dedicated to the purpose of permitting the unrestrained dissemination of speech; common sense suggests that government restrictions on speech that would be impermissible in public and even nonpublic fora may nevertheless be permissible when applied to certain types of private property. [7]
We begin with the state's interest in restricting workplace speech that creates a racially hostile work environment. The state has announced that it is "the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race...." (Gov. Code, § 12920.) The state recognizes that such discrimination "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general." ( Ibid. )
Of course, the elimination of racial discrimination, even by private parties or entities, has often been found to be a governmental interest of the highest order. (See, e.g., Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 [exercise of race-based peremptory challenge to juror by private litigant in civil case held unconstitutional]; Bob Jones University v. United States (1983) 461 U.S. 574 , 103 S.Ct. 2017 , 76 L.Ed.2d 157 [denial of federal tax benefits for private religious schools with racially discriminatory policy upheld]; Jones v. Mayer Co. (1968) 392 U.S. 409 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 [federal statute barring racial discrimination in sale or rental of private property valid under the Thirteenth Amendment]; Shelley v. Kraemer (1948) 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 [enforcement of racially restrictive covenant in private property deed unconstitutional].) In short, the State of California has stated a compelling governmental interest in support of its laws aimed at eliminating racially discriminatory practices in private employment.
Restricting Lawrence in the future from engaging in speech that is productive of a racially hostile work environment leaves him ample alternatives for advocating, espousing or simply stating his beliefs. Because I agree with the plurality opinion's affirmance of the Court of Appeal's decision reversing and remanding the case *164 to permit the trial court to "redraft the injunction in a manner that ... limits its scope to the workplace," a majority of this court agrees the injunction in this case should be limited to speech in the workplace. Lawrence is thus free to speak anywhere and at any time outside of his place of employment, whether it be in his home, on the sidewalk, in the park, in his local restaurant or on the Internet.
Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753 , 114 S.Ct. 2516 , 129 L.Ed.2d 593 ( Madsen ) is illustrative. In that case, protesters picketing an abortion clinic were subject to an injunction that prohibited them from blocking access to the clinic or physically abusing persons entering or leaving it. On finding the injunction to have been violated, the trial court issued a new injunction, providing, inter alia, that demonstrators must (with some exceptions) stay at least 36 feet from clinic driveways and entrances. The demonstrators eventually sought review in the Supreme Court, claiming the new injunction violated their First Amendment rights.
The Supreme Court, although striking down other parts of the injunction, upheld the requirement of a 36-foot buffer zone, finding the limitation was a valid time, place and manner restriction on speech. As pertinent to the question here, the high court noted the "petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone." ( Madsen, supra, 512 U.S. at p. 764, fn. 2 , 114 S.Ct. 2516 .) If the injunction in the instant case is limited on remand to apply to the workplace only, Lawrence similarly will have open to him ample alternative channels of communication.
The Supreme Court's existing time, place and manner decisions admittedly do not wholly govern this case, for not only does this case not involve a public forum, the injunction here is not content-neutral. "The Supreme Court has stated repeatedly... that time, place, and manner regulations must be content neutral in order to receive deferential judicial review." (Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at pp. 16-17, fn. omitted.) "[The] principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech `without reference to the content of the regulated speech.'" ( Madsen, supra, 512 U.S. at p. 763 , 114 S.Ct. 2516 .) "We thus look to the government's purpose as the threshold consideration." ( Ibid. )
The state's purpose here is the elimination of racial discrimination and harassment at the workplace. FEHA thus is clearly concerned with the content of harassing speech; hence, the injunction cannot be classified as content-neutral. This fact has led some commentators to conclude that reliance on the time, place and manner doctrine in the employment harassment setting is misplaced. (Volokh, Workplace Harassment, supra, 39 U.C.L.A. L.Rev. at pp. 1826-1828; Browne, Title VII as Censorship, supra, 52 Ohio St. L.J. at p. 521.) As noted at the beginning of this opinion, no Supreme Court decision is directly on point; accordingly, we do not know how that court would balance the diverse interests present here.
Whether the content-based nature of the injunction wholly disqualifies the time, place and manner doctrine from any application to this case need not be decided, however. Instead, it is sufficient to consider components of the doctrine as relevant to the overall assessment of whether the injunction violates defendant Lawrence's First Amendment rights. When those components—a compelling state interest and alternative channels of communication —are considered together with the facts the speech sought to be enjoined occurred in the workplace and the recipients of the unwelcome speech were a captive audience, a strong case for upholding the injunction appears.
*165 We must consider the implications of a contrary holding. The state's interest in eradicating racial discrimination in the workplace is compelling, and the state has made a reasonable determination that such discrimination causes "domestic strife and unrest" and is harmful to "the interest of employees, employers, and the public in general." (Gov.Code, § 12920.) The state's interest is fully applicable to this case, as it is undisputed the speech in question occurred at the workplace where both plaintiffs and defendant Lawrence work. Plaintiffs do not wish to listen to Lawrence's constant stream [8] of verbiage denigrating them on account of their Latino heritage, but they are not free, as a practical matter, to leave their jobs to avoid being the targets of his racial slurs. Lawrence, on the other hand, is free to speak his mind anywhere and everywhere, with the sole exception of the workplace.
Diverse interests are in play in this case, and balancing them is undeniably a difficult task. Were we to find the injunction violates Lawrence's First Amendment rights, we would be concluding those rights outweigh the rights of the Latino plaintiffs to be free of unwanted racial discrimination. Like Lawrence's asserted interest in free speech, however, plaintiffs' interest also finds recognition in our federal Constitution (U.S. Const., Amends. XIII, XIV, XV; see Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 453 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 & fn. 9 [Congress exercising powers under section 5 of the 14th Amendment when it passed relevant amendments to title VII]). Given the constellation of factors present in this case, no clear reason appears why Lawrence's free speech rights should predominate over the state's and the individual plaintiffs' similarly weighty antidiscrimination interests.
Balancing Lawrence's First Amendment free speech rights with the equally weighty right of plaintiffs to be let alone at their jobsite, free of racial discrimination, I find the several factors coalescing in this case—speech occurring in the workplace, an unwilling and captive audience, a compelling state interest in eradicating racial discrimination, and ample alternative speech venues for the speaker—support the conclusion that the injunction, if sufficiently narrowed on remand to apply to the workplace only, will pass constitutional muster.
IV
Having found the injunction, properly narrowed on remand, would not violate the First Amendment, I reach the same result under the California Constitution. Article I, section 2, subdivision (a) of the state Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." We have in the past observed this state constitutional free speech guarantee is "[a] protective provision more definitive and inclusive that the First Amendment" ( Wilson v. Superior Court (1975) 13 Cal.3d 652, 658 , 119 Cal.Rptr. 468 , 532 P.2d 116 ; see also Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1041 , 232 Cal.Rptr. 542 , 728 P.2d 1177 ) and its plain meaning prohibits prior restraints on speech ( Dailey v. Superior Court (1896) 112 Cal. 94, 100 , 44 P. 458 ; Pines v. Tomson (1984) 160 Cal.App.3d 370, 393 , 206 Cal.Rptr. 866 ). Lawrence argues that even if the injunction is permissible under the federal Constitution, it is invalid under this state *166 constitutional provision, which provides greater protection for speech than is afforded by the First Amendment.
Although the First Amendment is written in absolute terms, it has not been so interpreted. The same is true for article I, section 2, subdivision (a) of the state Constitution. As we explained in Wilson v. Superior Court, supra, 13 Cal.3d at pages 661-662, 119 Cal.Rptr. 468 , 532 P.2d 116 : "We do not ... suggest that prior restraint upon publication can never be justified. The decisions recognize that prior restraints may be imposed under some extraordinary circumstances. For example, it has been said that the government may prohibit the disclosure of military secrets in time of war and prevent the utterance of words that may have the effect of force. [Citation.] Furthermore, an injunction restraining speech may issue in some circumstances to protect private rights (see, e.g., Magill Bros. v. Bldg. Service etc. Union (1942) 20 Cal.2d 506, 511-512 , 127 P.2d 542 ) or to prevent deceptive commercial practices ( Securities and Exchange Comn. v. Texas Gulf Sulphur Co. (2d Cir.1971) 446 F.2d 1301, 1306 )." In other words, a sufficiently strong public policy reason can justify a prior restraint on speech even under the heightened protection afforded by the state Constitution.
As with the federal constitutional analysis set forth above, in the state constitutional analysis as well two powerful constitutional interests are at issue. In addition to the protection for one's freedom to "speak, write and publish his or her sentiments on all subjects," the state Constitution —like the Fourteenth Amendment to the federal Constitution—also mandates people not be "denied equal protection of the laws." (Cal. Const., art. I, § 7, subd. (a).) Moreover, just as the state Constitution's free speech guarantee provides greater protection than its federal counterpart, our state charter also provides heightened protection against racial discrimination in the workplace. Article I, section 8 provides "[a] person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of ... race...." It is thus no answer to observe that free speech rights are greater under the state Constitution, because the same document also grants greater protection against racial discrimination in the workplace. We are once again faced with a difficult balance between competing constitutional values.
The confluence of factors that justifies the limitation on defendant Lawrence's speech under the First Amendment to the United States Constitution supports the same result under the California Constitution. For example, that a potential listener is unable to escape hearing an unwanted message has been cited as a significant factor in the evaluation of free speech rights in this state. In Braxton v. Municipal Court (1973) 10 Cal.3d 138 , 109 Cal. Rptr. 897 , 514 P.2d 697 , this court found that regulation of bullhorns or loud speakers used in demonstrations was "necessary to prevent substantial interference with the work of captive audiences in classrooms and research facilities." ( Id. at p. 149, 109 Cal.Rptr. 897 , 514 P.2d 697 .) Similarly, in City of San Jose v. Superior Court (1995) 32 Cal.App.4th 330 , 38 Cal. Rptr.2d 205 , the appellate court approved a city ordinance that, in creating a 300-foot buffer zone around the residences of staff members of an abortion clinic, declared "`targeted picketing activity creates a "captive audience" situation.'" ( Id. at p. 341, 38 Cal.Rptr.2d 205 .) Clearly an audience's practical ability to avoid unwelcome or unpleasant speech is relevant to evaluating the validity of an injunction under the state Constitution.
Notwithstanding the heightened protection free speech rights enjoy under the state Constitution, time, place and manner restrictions are also recognized under our state charter. ( Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910 , 153 Cal.Rptr. 854 , 592 P.2d 341 ; Dulaney v. Municipal Court (1974) 11 Cal.3d 77, 85 , 112 Cal.Rptr. 777 , 520 P.2d 1 ; Savage v. *167 Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1572 , 273 Cal.Rptr. 302 ; Planned Parenthood v. Holy Angels Catholic Church (N.D.Cal.1991) 765 F.Supp. 617, 625 .) Although the speech here was not uttered in a public forum and the injunction is not content neutral, I find the two remaining factors in the equation—a significant state interest, and ample alternative avenues of communication—are relevant under the state Constitution.
As noted, the California Constitution itself recognizes the importance of eliminating racial discrimination in the workplace. (Cal. Const., art. I, § 8.) Our Legislature has similarly declared such workplace discrimination odious. (Gov.Code, § 12920 [FEHA]; see also, Civ.Code, § 51 ["All persons within the jurisdiction of this state are free and equal, and no matter what their ... race, ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."].) This court has also observed that the "policy that promotes the right to seek and hold employment free of prejudice is fundamental." ( Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220 , 185 Cal.Rptr. 270 , 649 P.2d 912 .) State law, both statutory and constitutional, thus recognizes a compelling interest in the elimination of racial discrimination in the workplace.
In short, I find defendants' rights under the California Constitution do not compel the conclusion the injunction must be set aside.
V
When we leave our homes, we enter a hurly-burly world where we are sometimes required to endure the unpleasant and undesirable opinions and entreaties of others. Unfortunately, such unwelcome speech sometimes attacks us on the basis of our race, gender or ethnic heritage. (See, e.g., Brandenburg v. Ohio, supra, 395 U.S. 444 , 89 S.Ct. 1827 , 23 L.Ed.2d 430 [Ku Klux Klan leader made derogatory remarks about African-Americans]; Contento v. Mitchell (1972) 28 Cal.App.3d 356 , 104 Cal.Rptr. 591 [defendant called plaintiff a "bitch" and a "whore"]; National Socialist Party v. Skokie (1977) 432 U.S. 43 , 97 S.Ct. 2205 , 53 L.Ed.2d 96 ( per curiam ) [American Nazis wishing to stage parade in predominantly Jewish village].) Ensuring proper breathing room for the airing of diverse views generally requires that we simply close our ears, avert our eyes and move on. The freedom of speech guaranteed by the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." ( United States v. Associated Press (S.D.N.Y. 1943) 52 F.Supp. 362, 372 (opn. of Hand, J.), affd. sub nom. Associated Press v. United States (1945) 326 U.S. 1 , 65 S.Ct. 1416 , 89 L.Ed. 2013 .)
The workplace is different from sidewalks and parks, however; workers are not so free to leave to avoid undesired messages. When employees are forced to endure racially harassing speech on the job, it is arguable that "substantial privacy interests are being invaded in an essentially intolerable manner." ( Cohen v. California, supra, 403 U.S. at p. 21, 91 S.Ct. 1780 .) In enacting FEHA and its related provisions, the state has recognized the damage racial discrimination at the workplace can cause, both economically to society and psychologically to the victimized worker. Finally, the restriction on the harasser seems de minimis because he remains free to state his views and opinions in every place other than his place of employment.
No single factor present in this case justifies the restraint on speech here; indeed, another case posing different facts may lead to a different conclusion. However, for all the reasons stated above, I conclude that Lawrence's speech, even if constitutionally protected, may nevertheless be subject to the modest time and *168 place restrictions discussed above, and that an injunction, properly narrowed on remand, [9] will not violate his right to freedom of speech guaranteed to him by both the First Amendment to the United States Constitution and by article I, section 2, subdivision (a) of the California Constitution.
Dissenting Opinion by MOSK, J.
I dissent.
The plurality conclude that a remedial injunction under the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), banning a list of derogatory words from use in the workplace, is a permissible remedy for employment discrimination by defendants John Lawrence and Avis Rent A Car System, Inc. (Avis). I disagree. Among our most cherished constitutional principles is that speech— even if offensive—should be protected unless, and until, it produces a demonstrable harmful effect.
Both the First Amendment of the United States Constitution and article I, section 2, subdivision (a), of the California Constitution restrict the use of content-based prior restraints on speech. The order at issue here—enjoining any future use in the workplace of specified words— constitutes just such a prior restraint. It impermissibly restricts speech based on the mere assumption that these words will inevitably create a hostile and abusive work environment amounting to employment discrimination. Nor is this injunction salvaged by labeling it a restraint on conduct rather than speech.
The plurality's error is particularly glaring because they are deciding this matter in a contextual vacuum, without the benefit of a factual record. They thus overlook the duty of an appellate court, where free speech rights are at stake, to independently review the trial court's findings and the whole record to assure that any injunction is narrowly tailored and justified by compelling necessity. That duty is no less imperative in a matter involving speech in the workplace. As the United States Supreme Court recently emphasized: "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." ( Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82 , 118 S.Ct. 998, 1003 , 140 L.Ed.2d 201 .) Here, we know nothing of the surrounding circumstances. We do not even know what offensive remarks were made, to whom, or when. All we do know is that the parties have agreed that the remarks did not amount to "fighting words"—i.e., that the injunction involves otherwise protected speech—and that Lawrence has apparently not made any similarly offensive remarks to Avis employees since 1992.
Like my colleagues, I abhor discrimination in any form. But I feel equally strongly that we cannot use the instrumentality of the courts to penalize speech before we know what was said, to whom, and with what effect. It should be obvious that we may not do so in advance, based only on predictions of future harm.
I
The crux of the lead opinion is that the injunction forbidding the use of a list of words does not amount to a prior restraint so long as it was issued after a jury *169 determination of past employment discrimination. It endorses the formulation of amicus curiae American Civil Liberties Union of Northern California that speech was properly enjoined here because "a fair judicial process has determined that a repetitive pattern of speech is unprotected." I am unpersuaded.
"The term `prior restraint' is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' [Citation.] Temporary restraining orders and permanent injunctions— i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." ( Alexander v. United States (1993) 509 U.S. 544, 550 , 113 S.Ct. 2766 , 125 L.Ed.2d 441 .) The injunction here falls squarely within that definition. It was not transformed into something acceptable simply because it was issued after a judicial finding of past employment discrimination.
According to the Chief Justice, the injunction passes constitutional muster because it simply precludes defendants from continuing their unlawful activity. It does more than that. It directly targets otherwise protected speech, forbidding any future use of a list of offensive words in the workplace—even outside the presence of plaintiffs and even if welcome or overtly permitted. Although the plurality opinion insists that it would prohibit an illegal course of conduct, in fact it regulates speech on the basis of expressive content. (See De Angelis v. El Paso Mun. Police Officers Assn. (5th Cir.1995) 51 F.3d 591, 597, fn. 7 .)
Moreover, it is not true that any and all future use even of offensive epithets will necessarily amount to a continuation of the same unlawful activity. As the plurality opinion concedes, "not every utterance of a racial slur in the workplace

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1428244. Public record. Not legal advice.