Case No. SO 54561
IN THE
SUPREME COURT OF CALIFORNIA
OSCAR AGUILAR, et al.
1st Civil No. AO69353
Plaintiffs and Respondents
(San Francisco Superior
Court No. 948597
Hon. Carlos T. Bea)
vs.
AVIS RENT A CAR SYSTEM, INC., et al.,
Defendants and Appellants
________________________________
After a Decision By The Court of Appeal
First Appellate District, Division Five
Donald B. King, Associate Justice
________________________________
BRIEF IN SUPPORT OF APPELLANTS BY
THE THOMAS JEFFERSON CNETER
FOR THE PROTECTION OF FREE EXPRESSION
AMICUS CURIAE
______________________________
J. Joshua Wheeler
State Bar Number 162911
400 Peter Jefferson Place
Charlottesville, VA 22911-8691
(804) 295-4784
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................... ii
INTEREST OF AMICI CURIAE ............................................................... 1
STATEMENT OF THE CASE ................................................................... 1
SUMMARY OF ARGUMENT .................................................................. 1
ARGUMENT
I.
THE CHALLENGED INJUNCTION IS A
PRIOR RESTRAINT OF SPEECH NOT
PERMITTED UNDER THE FIRST
AMENDMENT OF THE UNITED STATES
CONSTITUTION ...............................................................................3
II.
CALIFORNIA COURTS POSSESS
CONSTITUTIONALLY VALID MEANS TO
RESTRAIN FORCES THAT CREATE AN
UNACCEPTABLY HOSTILE WORK
ENVIRONMENT ...............................................................................8
CONCLUSION ..........................................................................................11
i
TABLE OF AUTHORITIES
CASE
Page
Cohen v. San Bernardino Valley College, .....................................................6
92 F.3d 968 (9 th Cir. 1996)
Corry v. Leland Stanford Junior University, .................................................6
No. 740309, slip op. (Cal. Super. Ct. Feb. 27, 1995)
Dambrot v. Central Michigan Univ.,.............................................................6
839 F. Supp. 477 (E.D. Mich. 1993), aff’d,
55 F.3d 1177 (6th Cir. 1995)
Doe v. University of Michigan ......................................................................5
721 F. Supp. 852 (E.D. Mich. 1989)
Gooding v. Wilson, 405 U.S. 518 (1972).......................................................8
Lewis v. New Orleans, 408 U.S. 913 (1972)..................................................8
Near v. Minnesota, 183 U.S. 697 (1931).......................................................3
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .............................................3
Robinson v. Jacksonville Shipyards, ............................................................9
760 F. Supp. 1486 (M.D. Fla. 1991)
United States v. O’Brien, 391 U.S. 367 (1968) .............................................4
UWM Post v. Board of Regents,....................................................................5
774 F. Supp. 1163 (E.D. Wis. 1991)
ii
INTEREST OF AMICI CURIAE
The Thomas Jefferson Center for the Protection of Free Expression
is a non-partisan, non-profit organization located in Charlottesville,
Virginia, which has as its sole mission the protection of freedoms of
speech and press in all forms. The Center pursues that mission in several
ways, including the filing of amicus curiae briefs in many cases.
STATEMENT OF THE CASE
Amicus accepts the Statement of the Case in the Opening Brief of
Appellants before this Court.
SUMMARY OF ARGUMENT
This case presents the profoundly important issue of whether a
California court may, in an effort to promote a non-hostile work
environment, order a person not to engage in speech that is distasteful, even
hateful, but is nonetheless protected by the First Amendment of the United
States Constitution.
Many related issues are not involved here. For example, there is no
1
question that California courts may enjoin harassing conduct or behavior
that deprives others of civil rights. Nor is there any issue here of the power
of courts to compel employers to take appropriate steps to alleviate a
hostile climate in the workplace. And, there is not a question here that
private employers may, on their own initiative, tell their employees to
avoid speech that harasses demeans, or offends fellow workers. While
those issues are not without difficulty, they are not the issues currently
before this court. Each of those issues has produced abundant litigation.
Each will surely continue for many years to trouble the courts. Yet none of
those questions need be reached, nor should any of them divert attention
from, the deeply troubling issue this case does present.
The judgment reviewed here is as unique as it is disturbing. The
Court of Appeal has, for the first time at the appellate level, sustained an
injunction directed at the allegedly harassing speech of an individual. That
action is without precedent, as well as in clear violation of the free speech
guarantee of the United States Constitution.
Amicus curiae will offer two arguments: First, that the state court’s
injunction constitutes a prior restraint of expression that is clearly protected
by the First Amendment of the Constitution of the United States. Second,
that constitutionally valid alternatives exist by which to serve the
2
undoubted government interest in ensuring a civil workplace for all
workers.
I.
THE CHALLENGED INJUNCTION IS A PRIOR RESTRAINT OF
SPEECH NOT PERMITTED UNDER THE FIRST AMENDMENT
OF THE UNITED STATES CONSTITUTION
The injunction before this Court not only restrains speech, but does
so unmistakably on content grounds. While the trial court’s decree does in
part address physical conduct, it also reaches pure speech when it orders
appellant to “cease and desist from using any derogatory racial or ethnic
epithets directed at, or descriptive of, Hispanic/Latino employees.” The
speech that has been enjoined is expression of a particular viewpoint, on a
particular subject. However laudable the goal of creating a more welcome
workplace climate, such an injunction is a classic prior restraint of the kind
that courts may not impose. Near v. Minnesota, 283 U.S. 697 (1931).
The inescapably hateful nature of the message must not be allowed
to obscure the constitutional issues that such a restraint poses.
As the
United States Supreme Court made clear in R.A.V. v. City of St. Paul, 505
U.S. 377 (1992), targeting speech on the basis of its message or viewpoint
is not permissible under the First Amendment of the United States
Constitution. Government may not target speech in that way even when
the sanction is punishment after the fact; this principle applies all the more
3
forcefully to prior restraint.
Moreover, the R.A.V. judgment barred
message or viewpoint discrimination even with regard to speech (such as
“fighting words”) that may be less than fully protected.
Here the
application of the R.A.V. principles are beyond disputes. In R.A.V., as in
this case, the desire to protect victims and vulnerable groups from
discrimination in all forms –– verbal as well as physical –– as is laudable.
Yet, so worthy a goal does not permit courts or agencies to circumvent the
clear precepts of the state and federal constitutions.
The rationale on which the Court of Appeals relied –– that some
speech can be enjoined as “conduct” –– does not avoid the dilemma.
Where conduct mixes physical and verbal elements, it may be reached
under narrowly defined conditions –– to serve a substantial government
interest that is unrelated to the suppression of free speech, and only if “the
incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.” United States v.
O’Brien, 391 U.S. 367, 377 (1968). If the asserted government interest is
related to suppression of speech, or if the effect is to restrain more speech
than necessary, then even sanctions aimed at blended speech and conduct
are invalid.
Application of these principles demonstrates the flaw in the
4
challenged injunction. The Superior Court decree contains two separate
provisions, one aimed at physical conduct and the other at pure speech.
There is no question that courts may enjoin physical harassment directed at
co-workers. What may not be done is precisely what the other provision of
this injunction seeks to do – specifically to enjoin speech or expression
under the guise of reaching physical conduct or behavior. Even though
harassing words and harassing touching may be closely linked in time, in
intent, and in impact, the very fact that the trial court separately addressed
words and deeds makes the point. Touching is touching, and is seldom
protected by the First Amendment. Speaking is speaking, and is fully
protected. Whatever may be said about reaching or punishing a blend of
speech and conduct – as the O’Brien doctrine permits under very limited
conditions – simply has no bearing on the decree now before this Court.
While the judgment here is unique in sustaining a decree aimed at
words alone, it is not the first time courts have been asked to review
government curbs on harassing speech. College and university speech
codes have been challenged several times in federal courts, and once in a
California state court. They have failed the tests of free speech each and
every time. The courts that have uniformly struck down such codes have
recognized the laudable desire of institutions to create a more welcome
5
environment for students of diverse backgrounds.
The courts have,
however, without exception insisted that even such goals do not allow
public institutions to dispense with clear free speech principles. Doe v.
University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989); UWM Post v.
Board of Regents, 774 F. Supp. 1163 (E.D. Wis. 1991); Dambrot v. Central
Michigan Univ., 839 F. Supp. 477 (E.D. Mich. 1993), af’d, 55 F.3d 1177
th
(6 Cir. 1995).
Two cases involving California campuses have special bearing on
the issue before this Court. In an unreported decision, a Superior Court
recently struck down Stanford University’s speech code as violative of the
Leonard Law, a California statute that imposes on non-sectarian private
colleges and universities the same standards for regulating student
expression that the Constitution applies to California’s public campuses.
Corry v. Leland Stanford Junior University, no. 740309, slip op. (Cal.
Super, Ct. Feb 27, 1995). The fact that the California legislature has
spoken so clearly to this effect suggests the anomaly of the judgment now
before this Court: a California judge has imposed a governmental curb or
gag on precisely the kind of speech that California lawmakers have insisted
even a private college or university may not restrain. Ironically, words that
are fully protected on the Stanford campus would now be forbidden at a
6
worksite that is less than twenty five miles away. So curious an anomaly
reinforces the importance of a reversal by this Court.
Another recent case had direct bearing on this case. In Cohen v. San
Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), the federal court
of appeals last summer set high standards for regulating speech in
California public institutions. In striking down an order imposed on a
California junior college professor who had enlivened his classes with
occasional vulgar language and other materials, the Ninth Circuit raised
serious doubts about the validity of rules that curb speech to enhance the
climate or environment of a public setting. While the court left open the
question whether a narrower and more precise policy would have fared
better, it expressly disapproved the college’s reliance on “the nebulous
outer reaches” (Id. at 971)
Such implicit disapproval of “climate” or “environment”based sanctions aimed at speech reflects the Ninth Circuit’s grave concern
about the use of broad and potentially vague restraints on speech, at least in
the campus setting. Where speech is curbed (as it was by the trial court in
this case) without even the benefit of such an imprecise rule or regulation
to define permissible limits, the standard of review should be no less
rigorous.
7
What this case presents, therefore, is a classic prior restraint imposed
on protected speech because of the message or viewpoint that speech
conveys. No attempt has been made to bring this decree within any of the
recognized exceptions to free speech. There is no suggestion that such
expression could be punished for posing a clear and present danger, or that
it could be actionable as defamation.
Any implication that “fighting
words” might be at issue seems to have been removed by concession of the
parties. Even if there were not such a concession, the order goes far
beyond what could constitutionally be reached as “fighting words” under,
e.g., Lewis v. New Orleans, 408 U.S. 913 (1972), Gooding v. Wilson, 405
U.S. 518 (1972).
The one theory plaintiffs have advanced which might be apposite –
that the injunction is aimed at conduct and not speech – wide of the mark
for several reasons, not least because the decree itself contains distinct
language that separately targets harassing works and harassing behavior.
Thus the injunction clearly violates the First Amendment of the United
States Constitution and should be modified accordingly.
II.
CALIFORNIA COURTS POSSESS CONSTITUITONALLY
VALID MEANS TO RESTRAIN FORCES THAT CREATE AN
UNACCEPTABLY HOSTILE WORK ENVIRONMENT
This case would be more difficult (though the result should not
8
differ) if a speech-based injunction were the only available option for a
Superior Court judge.
The alternatives are not, however, so severely
limited. The case does not involve, for example, a private employer’s
voluntary action to restrain workplace incivility by taking direct action
against harassing supervisors. While the dismissal of a worker solely on
the basis of protected speech might raise serious concerns, especially in
California, the scope of speech-based exceptions to the “employment-atwill” doctrine is a far different matter from the one now before this court.
Nor does this case remotely involve a court order that directs an
employer to take appropriate steps in order to improve the climate or
environment of the workplace, after a finding of unacceptably
discriminatory conditions. Such orders have been routinely sustained, as
they should be, since employers bear a legal responsibility for curbing
workplace bias and correcting hostile jobsite conditions. The difference
between such an order and the one before this Court is crucial and basic.
To tell an employer it must improve workplace conditions is one thing; to
tell a named employee he must stop speaking in ways that creates bad
conditions is a profoundly different matter.
Even where hostile workplace conditions may be the product of pure
speech, several options are left to the private employer under such an order.
9
Consider, for example, the case most closely analogous to this one,
Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991).
One part of the order apparently approved in that case would have directed
male workers to remove posters and pictures of scantily clad women from
lockers which female fellow workers passed on their way to and from the
jobsite, and which arguably created a hostile climate.
Such an order
against named mail employees would pose free speech problems
comparable to those presented by the Superior Court order in this case.
On the other had, ordering the employer to alleviate the hostile
climate would be a vastly different matter. The employer might choose to
tell the male workers they must remove the posters and pictures. More
likely, the employer might tell the male employees to put the pictures on
the inside of lockers that must be closed as certain times when female
fellow workers pass to and from the jobsite. Alternatively, either the male
locker area, or the path to and from the jobsite, might be capable of being
relocated. In extremis, the employer might choose to replace male workers
who proved incorrigibly sexist. Or, in a case in which demeaning or
sexually suggestive advertising images offended female employees, the
employer/advertiser could surely find other means of selling its products or
services that would not create a hostile workplace environment.
10
The point is that the employer has many options other than draconian
speech-based sanction which the court has chosen in this case. There is a
world of difference between ordering the employer to remedy a hostile
climate or environment (and imposing harsh sanctions for failure to do so
within a reasonable time) and muzzling the speech – however hateful – of
an offending or harassing employee.
When alternatives exist, judicial
resort to suppressing expression is impermissible.
CONCLUSION
For the foregoing reasons, amicus respectfully urges this Court to
reverse and remand for appropriate modification of the Superior Court
injunction.
____________________________
J. Joshua Wheeler
State Bar Number 162911
Counsel for Amicus Curiae
The Thomas Jefferson Center for
The Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, Virginia 22911
(804) 295-4784
11
PROOF OF SERVICE
STATE OF VIRGINIA
CITY OF CHARLOTTESVILLE
)
)
Brief of
Amicus Curiae
I am employed in the City of Charlottesville, State of Virginia, and an admitted
to practice in California. I am over the age of 18 and not a party to the within action;
my business address is 400 Peter Jefferson Place, Charlottesville, Virginia 22911-8691.
On March 6, 1997, I served the foregoing document(s) described as brief of
Amicus Curiae on the interested parties in this action by placing true copies thereof in
sealed envelopes addressed as follows:
Supreme Court of the State of California
Marathon Plaza
303 Second Street, South Tower
San Francisco, CA 94107
____ BY FEDERAL EXPRESS: I deposited such envelopes with Federal Express at
Charlottesville, Virginia. The envelopes were shipped next day delivery.
I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on March 6 , 1997 at Charlottesville, Virginia.
__________________________________
J. Joshua Wheeler
PROOF OF SERVICE
STATE OF VIRGINIA
CITY OF CHARLOTTESVILLE
)
)
Brief of
Amicus Curiae
I am employed in the City of Charlottesville, State of Virginia, and am admitted
to practice in California. I am over the age of 18 and not a party to the within action;
my business address is 400 Peter Jefferson Place, Charlottesville, Virginia 22911-8691.
On March 6, 1997, I served the foregoing document(s) described as brief of
Amicus Curiae on the interested parties in this action by placing true copies thereof in
sealed envelopes addressed as follows:
JoAnne Dellaverson
Curiale Dellaverson Hirschfeld
Kelly & Kraemer, LLP
225 Bush Street, 5th Floor
San Francisco, CA 94104
Court of Appeal for the State of California
First Appellate District, Division Four
303 Second Street, South Tower
San Francisco, CA 94107
Edwin L. Currey, Jr.
Bronson, Bronson & McKinnon
505 Montgomery Street
San Francisco, CA 94111-2514
San Francisco Superior Court
633 Folsom Street (at 2nd Street)
San Francisco, CA 94107-1385
Rene Saucerdo
La Raza Centro Legal
2519 Mission Street
San Francisco, CA 94110
Michael E. Rosman
Center for Individual Rights
1300 Nineteenth Street, N.W.
Suite 260
Washington, D.C. 20036
_____ BY MAIL: I deposited such envelopes in the mail at Charlottesville, Virginia.
The envelopes were mailed with postage thereon fully prepaid.
I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on March 6, 1997 at Charlottesville, Virginia.
_________________________________
J. Joshua Wheeler