In the California Supreme Court
Aguilar v. Avis Rent A Car
The case of Aguilar v. Avis Rent-A-Car System, Inc. showcases the difficulties involved in preventing workplace harassment while preserving the right of free speech. It began when 17 Hispanic/Latino employees sued Avis for employment discrimination under a state law known as the Fair Employment and Housing Act because of racist epithets allegedly uttered by an Avis manager.
Twelve employees’ claims went before a jury, which ruled in favor of nine of the employees. The prevailing plaintiffs sought an injunction requiring the manager and other Avis employees to “cease and desist from all harassment or discrimination of employees whose national origin is from Latin America.”
The injunction applied to both off-the-job and on-the-job harassing speech, according to the trial judge.
On appeal, Avis argued that the injunction against harassing speech violated First Amendment free-speech rights. In May 1996, the California Court of Appeals ruled that while the trial court could issue an injunction prohibiting certain racist epithets at the workplace, it could not constitutionally limit off-the-job speech.
By David Hudson
First Amendment Center
ApolloMedia, a San Francisco-based multimedia company, filed a request this week with the California Supreme Court to submit a friend-of-the-court brief in what the company calls “a First Amendment case being observed nationwide as a harbinger of speech in the American workplace.”
The case of Aguilar v. Avis Rent-A-Car System, Inc. showcases the difficulties involved in preventing workplace harassment while preserving the right of free speech. It began when 17 Hispanic/Latino employees sued Avis for employment discrimination under a state law known as the Fair Employment and Housing Act because of racist epithets allegedly uttered by an Avis manager.
Twelve employees’ claims went before a jury, which ruled in favor of nine of the employees. The prevailing plaintiffs sought an injunction requiring the manager and other Avis employees to “cease and desist from all harassment or discrimination of employees whose national origin is from Latin America.”
The injunction applied to both off-the-job and on-the-job harassing speech, according to the trial judge.
On appeal, Avis argued that the injunction against harassing speech violated First Amendment free-speech rights. In May 1996, the California Court of Appeals ruled that while the trial court could issue an injunction prohibiting certain racist epithets at the workplace, it could not constitutionally limit off-the-job speech.
The appeals court ordered the trial court to redraft an injunction that solely prohibited workplace speech and to “add an exemplary list of prohibited derogatory racial or ethnic epithets used in the workplace” by the manager.
The court of appeals determined that the injunction did not violate the First Amendment because the law was not directed at the content of the expression, but rather at the secondary effect of employment discrimination.
The appeals court wrote that “the injunction … is not a prior restraint on freedom of expression, but lawfully precludes employment discrimination as a secondary effect of severe or persistent racist speech.”
One judge vigorously dissented, accusing the majority of “overzealous political correctness.” The judge wrote: “The politically correct camel now will have its nose under the First Amendment tent that has long sheltered our citizens from such censorship.”
Avis appealed to the California Supreme Court, contending the injunction against workplace speech went too far for First Amendment purposes.
The California Supreme Court accepted the case but has yet to set a date for oral argument.
Clinton Fein, president of ApolloMedia, says that “in the wake of the issues raised in the Paula Jones sexual harassment suit and the emergence of the Internet as an increasingly fundamental business tool, it is imperative that we weigh speech issues in the workplace with careful consideration and reasoned analysis.”
Fein told free! that “the Aguilar decision, if allowed to stand, will continue to establish a huge chilling effect on speech.
“The government or a court should not be able to provide a list of words that has no association with context or association. The entire theoretical underpinning of the Court of Appeals decision was wrong. In fact, the premise of the secondary-effects doctrine applied in this case is so fundamentally flawed in this context that it’s ridiculous.”
Fein’s company runs a Web site, annoy.com, which features speech that is often designed to provoke and disrupt. “If this decision stands, can an employee be accused of workplace harassment if they read and discuss our Web site at the workplace?” he asks.
“We’ve reached a point in our society where nobody knows what speech is appropriate and what speech is not,” he said.
Eugene Volokh, a UCLA law professor who has written extensively on the relationship of workplace harassment laws and free-speech rights, agrees that the case is important. “While this case involves racial slurs, people need to realize that harassment law goes far beyond racial slurs to cover political statements, art, sexually themed jokes and other material,” he told free!
Joel Kelly, a Los Angeles attorney who represents Avis, told free!: “Left unchecked, the Court of Appeal’s erroneous ‘secondary effects’ analysis could well be applied to proscribe a wide variety of protected expression in the media, and in schools, universities and other organizations outside the workplace that have heretofore escaped the pen of the censor.”
Without knowing the words actually used, or their context, the Court of Appeal authorized an injunction against future speech in the workplace, regardless of its context or circumstances.
A list of “prohibited epithets” was to be compiled by the Superior Court. Presumably the words to be outlawed by the court (“Government-Forbidden Words”) are obnoxiously offensive to certain persons in some circumstances, but they are not necessarily “fighting words” as the term is used in First Amendment jurisprudence.
It is a very difficult question whether a new category of unprotected speech (beyond fighting words, obscenity, criminal solicitations and commercial fraud) should be established by the courts, justifying awards of damages.
The First Amendment does not say: Government “shall make no law abridging the freedom of speech, except to protect certain persons from ridicule and insult in the workplace.” And so ApolloMedia offered the Court an opinion in what we believed will serve as a harbinger of free speech in the workplace.
The only question before the Court, however, was not whether a damage remedy is available for workplace speech, but whether an injunction against uttering Government-Forbidden Words can be squared with the federal and state constitutional Free Speech Clauses.
Obviously, we felt it cannot.
Case No. S054561
IN THE SUPREME COURT OF CALIFORNIA
After A Decision By The Court Of Appeal _______________________________________________________________ REQUEST TO CHIEF JUSTICE FOR PERMISSION _______________________________________________________________
To: Ronald M. George, Chief Justice: ApolloMedia Corp. requests permission, pursuant to California Rule of Court 14(b), to file the attached brief amicus curiae. The interest of the amicus is fully set forth in the brief. The specific and compelling reasons for submitting the brief now are that it calls to the Court’s attention decisions of the United States Supreme Court and lower federal courts handed down after the parties submitted their briefs, as well as a key Supreme Court decision not cited by either appellants or respondents. Specifically, ApolloMedia Corp. wishes to call the Court’s attention to the following: 1. Reno v. ACLU, 117 S.Ct. 2329 (1997), handed down after the parties filed their briefs in this Court, emphatically rejected the “secondary effects” rule that formed the entire theoretical basis for the Court of Appeal’s decision in this case. The federal court in Urofsky v. Allen, ___ F.Supp. ___, No. 97-701-A (E.D.Va. Feb. 26, 1998), recently rejected the “secondary effects” rationale for protecting against “the offense, upset, and falling morale of employees” in the workplace due to offensive sexual speech. 2. Oncale v. Sundowner Offshore Services, ___ U.S. ___, 98 C.D.O.S. 1511 (March 4, 1998), decided last month, casts grave doubt on the validity of an injunction forbidding the utterance of offensive words in the workplace, especially a government-prescribed list of “prohibited epithets” as directed by the Court of Appeal in this case. The Supreme Court referred to the need in a hostile environment case for consideration of “surrounding circumstances, expectations and relationships” that cannot be “captured by a simple recitation of the words used.” 98 C.D.O.S. at 1512. 3. Neither appellants nor respondents cited or discussed the seminal Supreme Court decision in Near v. Minnesota, 283 U.S. 697 (1931). The Court overturned an injunction against continuing to publish “malicious, scandalous and defamatory” falsehoods, even though the injunction was preceded by a full adversary hearing and findings that the defendant had regularly engaged in publishing invective that was defamatory per se and anti-Semitic. The Court cannot decide the instant case without confronting Near, the key case on prior restraint. ApolloMedia wishes to discuss the application of these authorities to the issues before the Court, in the concise brief attached, and respectfully requests permission to file it. Respectfully submitted, ROGERS, JOSEPH, O’DONNELL & QUINN
By: ____________________________________ William Bennett Turner Attorneys for APPOLOMEDIA CORP.
Case No. S054561
IN THE SUPREME COURT OF CALIFORNIA
OSCAR AGUILAR, et al.,
vs. AVIS RENT A CAR SYSTEM, INC.,
__________________________________ After A Decision By The Court Of
Appeal _______________________________________________________________ BRIEF OF APOLLOMEDIA CORP. _______________________________________________________________
TABLE OF CONTENTS
I. Words in the abstract cannot be made unlawful or enjoined
FEDERAL CASES
STATE CASES
DOCKETED CASES
FEDERAL STATUTES
MISCELLANEOUS
Amicus ApolloMedia Corporation is a multimedia technology company located in San Francisco. Its business is entirely devoted to computer-mediated communications. It designs and constructs sites on the World Wide Web, and it implements Internet information systems. Amicus creates and communicates its own “content” as well as content published by its clients and by visitors to its web sites. ApolloMedia’s web sites often include blunt and direct expression that may be considered offensive or vulgar by some people. Its “annoy.com” web site (http://www.annoy.com) enables visitors to construct and send provocative email messages and digital “postcards” to public officials, public figures and others, transmitting views on controversial issues such as single sex marriage, censorship, health care and gays in the military. Amicus’ online databases contain some material that is sexually explicit or uses vulgar language. Some racial and sexual epithets appear prominently on annoy.com. ApolloMedia has filed an action in the Northern District of California (ApolloMedia Corporation v. Reno, No. C-97-0346 MMC), challenging the constitutionality of the provision of the Communications Decency Act (“CDA”), 47 U.S.C. §223(a)(1)(A)(ii), outlawing any “indecent” computer communication “with intent to annoy.” It also filed a brief amicus curiae in Reno v. ACLU, 117 S.Ct. 2329 (1997), challenging other provisions of the CDA as violations of the First Amendment. ApolloMedia is concerned about government restrictions on all forms of speech, and is especially alarmed about the prospect of injunctions containing lists of “prohibited epithets” as required by the Court of Appeal in this case. Without knowing the words that Lawrence actually used, or their context, the Court of Appeal authorized an injunction against future speech in the workplace, regardless of its context or circumstances. A list of “prohibited epithets” is to be compiled by the Superior Court. Presumably the words to be outlawed by the court (“Government-Forbidden Words”) are obnoxiously offensive to certain persons in some circumstances, but they are not necessarily “fighting words” as the term is used in First Amendment jurisprudence. See Cohen v. California, 403 U.S. 15, 20-21 (1971). It is a very difficult question whether a new category of unprotected speech (beyond fighting words, obscenity, criminal solicitations and commercial fraud) should be established by the courts, justifying awards of damages. The First Amendment does not say: Government “shall make no law abridging the freedom of speech, except to protect certain persons from ridicule and insult in the workplace.” Cf. Dooling, Blue Streak: Swearing, Free Speech and Sexual Harassment, 100 (Random House, 1996). The only question before this Court, however, is not whether a damage remedy is available for workplace speech, but whether an injunction against uttering Government-Forbidden Words can be squared with the federal and state constitutional Free Speech Clauses. It cannot. I. Words in the abstract cannot be made unlawful or enjoined As the Supreme Court recently said in Oncale v. Sundowner Offshore Services, ___ U.S. ___, 98 C.D.O.S. 1511, 1512 (March 4, 1998), “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.” Fair employment statutes like the one in the instant case forbid “only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Id. Title VII is not “a general civility code.” Id. Words in the abstract mean nothing. Meaning depends on context. See generally, Hayakawa, Language in Thought and Action (1941). To take the most famous racial slur, for example, uttering the word “nigger” may be a sign of friendship and intimacy, or of bigotry and hate, depending on the context — to whom it is said, by whom, in what tone of voice, and in what circumstances. The same is true of whatever racial or ethnic epithets may be proscribed by the list to be drawn up pursuant to the Court of Appeal’s mandate. In other words, whether a given “insult..is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” (Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)) requires consideration of “surrounding circumstances, expectations, and relationships” that cannot be “captured by a simple recitation of the words used…” Oncale, supra, 98 C.D.O.S. at 1512. Without knowing what words Lawrence used or might in the future use, to whom, and in what circumstances, the Court of Appeal should not have used this case to establish a new category of pure speech that may be enjoined. The injunction forbids “using” any “derogatory racial or ethnic” epithet “descriptive of” Hispanic/Latino employees. Assuming that “spic” may be such an epithet, the injunction prohibits (1) screaming at a Latino subordinate: “you fucking lazy spic,” and (2) saying discreetly to a peer: “I believe it is a violation of the First Amendment for a court to issue an injunction forbidding me from saying ‘spic’ to anyone.” To say that there is no legal difference between these two examples of enjoined speech is to say that context and circumstances are irrelevant and that the government can outlaw the mere utterance of disfavored words. Yet “one man’s vulgarity is another’s lyric,” Cohen v. California, supra, 403 U.S. at 25, and what may be vulgar or lyrical depends not only on taste but on context and circumstances. The Court of Appeal’s remand to the Superior Court to compile “an exemplary list of prohibited epithets” (Petrs. Appendix A at p.19) is simply absurd. In the first place, such a list of Government-Forbidden Words does not even protect the Latino plaintiffs from extreme verbal harassment aimed at them but using non-listed words. More seriously, the concept that courts may issue lists of Government-Forbidden Words is a sharp departure from the settled principles of the Free Speech Clauses. A court cannot “forbid particular words without also running a substantial risk of suppressing ideas in the process.” Cohen v. California, supra, 403 U.S. at 26. Neither appellants nor respondents even cited the key Supreme Court case on enjoining offensive speech. In Near v. Minnesota, 283 U.S. 697 (1931), the Court overturned an injunction against continuing to publish “malicious, scandalous and defamatory” falsehoods. The injunction was held to be an impermissible prior restraint even though it was preceded by a full adversary hearing and findings of fact that the defendant had engaged in a pattern and practice of publishing nine consecutive issues of anti-Semitic invective and baseless diatribe. After finding as a fact that the defendant was “in the business of regularly and customarily” publishing malicious, scandalous and defamatory matter, the trial court enjoined the defendant from “further conducting” this business. 283 U.S. at 706. The defendant conceded that his materials were “defamatory per se.” Id. at 730 He persuaded the Supreme Court, however, that “every person does have a constitutional right to publish malicious, scandalous, and defamatory matter though untrue, and with bad motives, and for unjustifiable ends, in the first instance, though he is subject to responsibility afterwards.” Id. (emphasis by Justice Butler, dissenting). This is the essence of the Near prohibition on prior restraints. The Near Court noted that abolishing prior restraints was the “chief purpose” of the First Amendment. 283 U.S. at 713. Moreover, the ban on prior restraints makes sense only if it is assumed that the speech in question is not protected by the First Amendment. Powe, The Fourth Estate and the Constitution, 141 (Univ. of Calif. Press, 1991). If the speech enjoys First Amendment protection, government (including the courts) can neither penalize nor enjoin it. Id. (“The prohibition against prior restraints matters” only to speech “not immunized from punishment by the First Amendment.”) Accordingly, even assuming that workplace epithets are unlawful and that the targets may sue for damages, an injunction against the epithets is an invalid prior restraint. Of course, even before the First Amendment, a court of equity would not enjoin defamation. Near, 283 U.S. at 713-14, 733-34 (quoting Sir William Blackstone); see Dailey v. Superior Court, 112 Cal. 94 (1896). This is true today, and it is true no matter how false and malicious the defamation is, or how successful it will be in ruining a plaintiff’s employment. One of the perverse results of the Court of Appeal’s decision is that workplace defamation could be enjoined even though there is a damages remedy. In many cases plaintiffs allege both FEHA (or Title VII) and defamation causes of action based on the same facts. Under the Court of Appeal’s decision, a plaintiff could claim the right to an injunction against the offending words. The historic rule that there be no injunction where there is a damages remedy would be abolished. The injunction here violates both the prior restraint doctrine and well-established rules of equity. Dailey v. Superior Court, supra. The entire theoretical underpinning of the Court of Appeal’s decision — both for finding offensive workplace speech unprotected and for allowing a prior restraint — was what it called the “secondary effects rule.” Petrs. Appendix A at p. 10. The court reasoned that the real target of the injunction was not offensive words but employment discrimination, and therefore the injunction was not content-based. Appellants and the other amici (even the ACLU, which otherwise supports the decision below) properly have shown that the court’s reliance on the “secondary effects” rationale was completely erroneous. The injunction cannot be “justified without reference to the content of the regulated speech.” City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986) (emphasis by the Court). The Court in Reno v. ACLU, 117 S.Ct. 2329 (1997), recently rejected a similar “secondary effects” argument, relying on Boos v. Barry, 485 U.S. 312, 321(1988), for the proposition that “regulations that focus on the direct impact of speech on its audience,” as the injunction here does, are content-based. Reno, 117 S. Ct. at 2342-43. The Court has never extended the “secondary effects” rationale beyond the municipal zoning context from which it arose (in Renton). Cf. FW/PBS v. Dallas, 493 U.S. 215 (1990) (city licensing scheme for adult entertainment violates First Amendment). Nor has it been applied where the challenged regulation bans a category of speech identified by its content. Most recently, when the State of Virginia urged it to justify a workplace speech restriction designed to spare employees the “offense, upset, and falling morale” caused by offensive speech, the federal court ruled that the “Supreme Court has expressly placed such harms outside the scope of the secondary effects doctrine” – – the impact of speech on its audience is not a secondary effect. Urofsky v. Allen, ___F.Supp.___, No. 97-701-A, at n.8 (E.D. Va. Feb. 26, 1998). No decision of this Court of which amicus is aware has ever extended the “secondary effects” rationale beyond the zoning context more generally to restrict Article I, section 2 freedoms of speech. The secondary effects rationale is extremely hazardous to free speech, because it has no limits and can justify any kind of speech restriction. Those who wish to suppress or restrict certain speech can always think up undesirable “secondary effects” believed to follow from the content of speech at issue. For example, the advertising of automobiles could be banned on the theory that it increases air pollution. Or speaking Spanish on the job could be prohibited because it has the “secondary effect” of making other employees uncomfortable. Or espousing feminist thoughts in the workplace could be made illegal because it has the “secondary effect” of interfering with male-female working relationships. When it is the effect on the listener or viewer — i.e., the response to the speech — that the government seeks to control, prohibiting speech cannot be justified by pointing to the “secondary effects” associated with the content. The Supreme Court in Reno recently rejected the government’s argument that “secondary effects” justified the prohibition of “indecent” speech by computer. 117 S. Ct. at 2342. The Court found that the purpose of the Communications Decency Act was “to protect children from the primary effects of ‘indecent’ and ‘patently offensive’ speech, rather than any ‘secondary’ effect of such speech.” Id. (Emphasis by the Court.) Similarly, the injunction in the instant case is designed to protect Latino employees from offensive epithets. Therefore, it must be seen as the “content-based blanket restriction” that it is. Id. Because the “secondary effects” rationale would support virtually any restriction on speech, because neither the Supreme Court nor this Court has ever extended it beyond the municipal zoning context, and because it cannot in any event be applied to the content-based injunction in this case, it should not be adopted here. The injunction should be dissolved. Respectfully submitted,
By: _________________________________ William Bennett Turner |