There’s an idea at play in President Bush’s nomination of Janice Rogers Brown that business is sacred and the worker is a negligible part of the whole. When a business bears responsibility for the mistreatment of their workers or an injury, this judge is the kind of person Bush wants determining culpability. This is all for the sake of profit with the idea that to force a business to uphold their requirement to the employee would not only be unfair, but none of the government’s business. What this amounts to is advocacy for the business over the worker, but why? Why is business in need of protection from the worker?
One of a number of reasons for this is the level of incompetence that exists within the leadership at the top of some American corporations. Executives are on trial right now for their incompetence and subsequent dishonesty that allowed their balance sheets to indicate profit where there was none. When a corporation like Enron engages in such improprieties, where does the burden of that incompetence and dishonesty fall? In the end the workers suffer, the shareholders suffer and mutual funds investing the retirement nest eggs of workers all over the country suffer. Who deserves advocacy in this situation? The people deserve advocacy, and government therefore writes laws to ensure that it doesn’t happen again. Would Judge Brown and President Bush have us to believe that the government is wrong for doing this?
It’s the responsibility of the executives to construct a viable business model and put it into action. While there are thousands of businesses that manage to profit within the law, there will be some that do not. When one of these businesses fall on hard times, they reorganize, conduct layoffs and start anew. The workers who enable these plans to become possible are protected by the law, but from one day to the next could lose their jobs based on the ability of management to create and effectively implement a business model of their own design. With this in mind, the worker’s own future is often out of their hands to begin with.
So in the eyes of Justice Brown and President Bush, this isn’t enough. Their idea is that when management’s incompetence proves out and laws are broken because of it, the business deserves the upper hand if they end up being sued. It’s as if America was not a nation of individuals, but instead a nation of stock prices. The workers of this country are merely an energy source and the individuals truly deserving of the government’s protection are the incompetent executives and the stock prices they represent. How convenient, as stock prices replace actual people. A nation of the people, by the people and for the stock prices!
This is the exact opposite of what the workers of this country deserve from our leadership. If a corporation cannot construct a business plan that allows for profit, it should no longer exist. The burden of incompetence on a high level should not fall solely on the shoulders of the workers, but too often it does. In this country right now there are corporations being allowed to default on their employee pensions to stay afloat. The government takes on this burden and the worker ends up with 40% of what they earned. Politicians like President Bush will have you believe that this is the work of greedy unions, but incompetent management is the true villain. Rather than sell out to a corporation that can manage to turn a profit, they stab the workers in the back and get away with it.
This is the status quo in America today, so what would be in store for the workers of America a few years down the line if Justice Brown, and others like her, were to be appointed to lifetime positions of higher power within the federal judiciary? What you’d have is the type of situation where incompetence at high levels is rewarded and lifetimes of hard, honest work are worth little more than a roll of the dice at the craps table. This is the direction our country is heading in right now, and if we fail to halt this downward progression, it could take another Great Depression before the workers of America manage to reclaim what is rightfully ours.
I come from a family of workers-not a CEO in the bunch- and I have been in four unions so I am blue collar, but I have a question. If Executives in high places in American corporations are so incompetent how were we ever able to attain the place in the world (economically) that we have ? Enlighten me ! 🙂
Paul:
Seems like you can make a case that The US standing economicaly has been slipping over the last 15 or 20 yars. Personally I think it started with the S and L scandal of the late eighties.
Recentely I went to a reception given by the accounting department at my school(I will do about anything for free food) the entire evening various business types talked about how unfair the new accounting standards were to them, specificaly the new way to account for stock options. The gist of the argument was that if they showed these stock options as an expense it would lower thier reported income which would lower their stock price. This makes their stock options less valuable. To me it seems that if you paid someone for services whether you paid them with stock or gave them a truck or more convential means you still have an expense. These people really saw themselves as victims because they had to fairly report what is going on in ther business.
In a sense corporations have a license to print money if teir stock is traded on a public market and it definetly has the potential for abuse so now is not the time to whining for less regulation in these matters.
I realize that there is a degree of greed, graft and corruption in American business, because those things get the most attention in the media and the press as indeed they should: however, I cannot believe that “all” executives are whining about what they don’t have and are corrupt. It became popular in the 1960s to target American business, as part of the American establishment, for a furious broadside. The New Left, of which I was a member at the time, did everything it could to throw the baby out with the bathwater and as a result subverted a lot of good that business was doing.
You are right, not “all” executives are whining about what they don’t have, in fact I am sure the majority of them are honest and have the best interest of their shareholders and the public at heart. Which is one of the reasons I don’t understand why they want accounting rules relaxed. If you are playing by the rules it seems like you would want everyone to play by the rules. It is sort of like steroids in baseball, if you are not doing them it seems like you would favor testing to eliminate people who have an unfair advantage.
Part of the problem like you said is that greed graft and corruption get the most attention, so they hurt the entire stock market, even if it is only a few companies, so it seems that business in general trys keep problems quiet, which just helps the bad ones.
What I am getting at is that regulation and standards for businesses are not always a bad thing, especially when it gives shareholders a more accurate view of what is going on.
I honestly think this only applies to some. The majority of executives know what they’re doing and enable our market to prosper. It’s the portion of executives who don’t know what they’re doing, but are able to ‘talk ragtime’ so well that noone ever catches on until it’s too late. The board of directors who hire this person and fail to effectively monitor what’s going on also bear culpability.
Reading the Wall Street Journal in a given week, I’m bound to find at least two articles in the opinion section of how Sarbones-Oxley is unfair and damaging to business, but consider the fact that 1 billion dollars was lost from the California Teacher’s Retirement Fund when Enron collapsed. Kenneth Lay was either a crook or one of the most unqualified CEOs to ever achieve such a high position in an American corporation. He was celebrated, wined, dined and invited all over the place with the Bush’s. From the outside looking in, how would we ever know that he was such a loser?
Hopefully the accounting guidelines allow for us to distinguish the losers from the rest of the competent executives sometime sooner than before the entire thing comes crashing to the ground.
It’s the small number of keystone cops we need to protect ourselves from. Enron, Worldcom, Boeing, Tyco…the list goes on and on, and an incompetent CEO is behind their demise, not a worker on the line or a mid-level manager. This is the thing Bush and this judge would rather not account for in their ideology. They ignore what really brings corporations down and who suffers the most when it happens.
The CEO can always buy a big house in Florida that the government cannot take away. The workers and shareholders are left holding the bag.
I agree that regulations are needed and serve their purpose. Greed will make some people do anything to get ahead. It happens in business and other facets of American life all too often. A corrupt CEO has to go and the sooner the better! One thing that might be studied is the criteria that various companies use to select a new CEO and especially ones like Enron, Boeing et al.
This is where Bush’s nominees come in, for the most part these people have shown an aversion to holding corporations accountable for their misdeeds, this seems like it creates an enviroment where everyone has to cheat just to stay even.
The mantra of the “we don’t need no regulations” crowd is that we can trust them to do what is right. but when one starts cheating everyone feels compelled to do it.
I couldn’t have said it any better. This is the game. Deregulation is a neverending fight for every industry in the country. The TV media is attached to the scheme of attacking fringe groups while leaving politicians alone for the most part, and this is because those politicians are the ones who determine whether or not these corporations are going to make more money in the coming years through deregulation.
This is why we no longer have news. Randi Rhodes (Air America 6PM M-F) has been hitting this up today.
This is where Bush’s nominees come in, for the most part these people have shown an aversion to holding corporations accountable for their misdeeds, this seems like it creates an enviroment where everyone has to cheat just to stay even.
I think what these judges have an aversion to is making their own laws (some of them, at least). It’s not for judges to punish people if there are no laws against their actions. Also, if the law is vague then you must err on the side of caution for we do not want to convict people for “crimes against the current fad”
This is where your angst can be placed upon the legislatures of the past for failing to make coherent rules. The burden of proof needs to be looked at as well as what remidies are fair.
Don’t presecute the judge for the failures of the legislator.
I think you’re mistaken concerning this judge Right. Here are some examples:
In Aguilar v. Avis Rent A Car Systems, Inc. 980 P.2d 846 (Cal. 1999), the trial court found that the employer had violated the California Fair Housing and Employment Act by creating a hostile work environment through the use of racial slurs directed at Latino employees. On appeal, the California Supreme Court upheld the lower court’s remedy that prohibited the use of racial slurs in the future, holding that prevention of such speech was not a violation of the employer’s First Amendment rights. Brown dissented, arguing that the First Amendment protects the use of racial slurs in the workplace, even when it becomes illegal race discrimination. Brown’s dissent virtually ignored several Supreme Court precedents. Her opinion also went so far as to suggest that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, violates the First Amendment and is therefore unconstitutional.
Janice Rogers Brown’s lone dissent in Konig v. Fair Employment and Housing Commission, 50 P. 3d 718 (Cal. 2002), would have seriously limited the redress options available to victims of housing discrimination. Brown found that the state Department of Fair Employment and Housing Commission, unlike the courts, did not have the right to award damages for emotional distress. Further, in Peatros v. Bank of America NT&SA, 990 P.2d 539 (Cal. 2000), Brown argued in dissent that the National Banking Act of 1864 pre-empted California’s fair employment law, thus preventing a bank employee from being able to file a lawsuit for race and age discrimination in state court. Justice Brown made this argument despite the fact that other more recent federal laws, such as the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, would clearly supercede the 135-year-old banking law on this question.
In City of Moopark v. Superior Court, 959 P.2d 752 (Cal. 1998), Brown argued in dissent against allowing a disabled city employee to bring a cause of action under the state common law prohibiting employers from firing workers in violation of well-established, substantial, and fundamental public policies, such as the policy against firing people because they have a disability. As the author of the only dissent in Stevenson v. Superior Court, 959 P.2d 752 (Cal. 1998), Brown argued that the plaintiff had failed to show that public policy against age discrimination “inures to the benefit of the public” or is “fundamental and substantial.” She further stated, “Discrimination based on age is not, however, like race and sex discrimination. It does not mark its victim with a ‘stigma of inferiority and second class citizenship’ (citation omitted); it is the unavoidable consequence of that universal leveler: time.”
Justice Brown’s opinions have also shown great antagonism toward the rights of workers. In Loder v. City of Glendale, 927 P.2d 1200 (1997), a case addressing the constitutionality of a drug and alcohol testing program for employees of the City of Glendale, Brown, in dissent, explicitly rejected binding Supreme Court precedent that called for the use of a balancing test to weigh the interest of the government against those of its employees in assessing whether these types of tests were constitutionally permissible. Despite the clear Supreme Court precedent, Brown would have imposed a bright line rule allowing drug tests for all employees. This opinion raises very serious concerns about Brown’s commitment to upholding settled law in both the workers’ rights context and many other areas of civil rights and liberties.
Brown’s extreme ideological opinions also extend to the rights of defendants. In People v. Mar, 52 P.3d 95 (Cal. 2002), the California Supreme Court overturned the conviction of a defendant who was made to wear a stun belt during his testimony at trial. The belt made the defendant uncomfortable and nervous and may have affected how the jury viewed his testimony. In her dissent arguing to uphold the requirement that the defendant wear the belt, Brown berated her colleagues in a brazenly sarcastic and highly critical way, belittling the court’s research into stun belts, accusing her colleagues of “rushing to judgment after conducting an embarrassing Google.com search,” and implying that a high school student could have done a better job than the chief justice in preparing the majority ruling. Also, Brown’s dissent in People v. Ray would have allowed a warrantless search of a person’s home as part of law enforcement’s “community care taking functions,” – an exception to the Fourth Amendment’s prohibition against warrantless searches not recognized by the Supreme Court.
Source: http://saveourcourts.civilrights.org/nominees/details.cfm?id=31370
Brown sort of saounds like Dr Laura, I guess thx to the compromise we get to see what she is like. I guess given the circumstances the Dems did what they could. I have a feeling the only judges consevative enough for president dobson are currently on the bench in Saudi Arabia, can tey be appointed to the supreme court.
I’m still allowing the compromise to sink in. It does mean that the GOP won’t be able to rid the senate of all it’s rules…ie killing the filibuster across the board. The whole thing is depressing. Brown is going to do her own thing, and that’s going to have a negative effect over time. I’ll be keeping my eye out for her in the years to come.
Aguilar v. Avis Rent A Car Systems, Inc. 980 P.2d 846 (Cal. 1999
I’ve looked everywhere for this case, funny how there isn’t a reference for the case from the “protect our judges” people. I wonder how much of this stuff is real….
Aguilar v. Avis Rent A Car Systems, Inc. 980 P.2d 846 (Cal. 1999
I’ve looked everywhere for this case, funny how there isn’t a reference for the case from the “protect our judges” people. I wonder how much of this stuff is real….
By Right Thinker May 24th, 2005 at 7:59 pm e
Breaze from Political Paradise posted this…I’m going to read it again, as it still hasn’t completely sunk in:
Ill take the first example, because I’m supposed to be working.
Browns dessent, if not read through the partisan eye shows exactly how
keen and qualified she is as a judge. I’m sure I will agree with here
dessents in these other cases. You can talk about her in a partisan
fashion, I’m not really listening. One sided view of things isn’t
really what I’m after, its a disservice to you and your party to hold
on to the racist label, eventually you will have to come to grips with
the fact that the opinions expressed by Republican nominees, are
republican opinions, and not racist, and its hard for you to throw the
racist montra onto a black woman, thus the genius of the nominee, and
the gullibilty of democrats to attack her on grounds of her being
racist. BTW, I’m not calling you racist, I’m saying that you think
Brown is…and make the mistake of thinking that it is some how
acceptable to attack her on the basis of her being republican, it is
transferrable, if you are out spoken about a black person who happens
to be republican, you will offend the ever growing black swing votes.
And if you further marginalize the black vote and take it forgranted
you will see the democratic party fall further.
So…for all those following this post, here’s Browns dessent in
Aguilar v. Avis Rent A Car Systems.
In America, Father Terminiello can give a speech in which he describes
the crowd outside the auditorium as “‘imported from Russia'”
(Terminiello v. Chicago (1949) 337 U.S. 1, 19 (dis. opn. of Jackson,
J.)) and then adds, “I speak of the Communistic Zionist Jew … . We
don’t want them here; we want them to go back where they came from.”
(Id. at p. 21.) In America, Clarence Brandenburg can attend a Ku Klux
Klan rally, stand near a large burning cross wearing a hood, and give a
speech saying, “Personally, I believe the nigger should be returned to
Africa, the Jew returned to Israel.” (Brandenburg v. Ohio (1969) 395
U.S. 444, 447.) In America, Nazis can march through the streets of the
predominately Jewish community of Skokie, Illinois, wearing uniforms
and displaying swastikas. (National Socialist Party v. Skokie (1977)
432 U.S. 43; see also Collin v. Smith (1978) 578 F.2d 1197, cert. den.
439 U.S. 916.) In each instance, racist and discriminatory views are
being expressed. Nevertheless, these expressions are protected by the
First Amendment to the federal Constitution and by our state
Constitution. We as a nation so value the free exchange of ideas that
we are willing to tolerate even offensive ideas, knowing that “one
man’s vulgarity is another’s lyric” (Cohen v. California (1971) 403
U.S. 15, 25) and today’s heretical idea may become tomorrow’s gospel.
“[T]ime has upset many fighting faiths.” (Abrams v. United States
(1919) 250 U.S. 616, 630 (dis. opn. of Holmes, J.).) For example, the
abolition of slavery, women’s suffrage, and even a solar-centric solar
system were once controversial ideas, but today are considered
conventional wisdom. Some ideas–like bigotry and prejudice–have been
wrong from the beginning and always will be. And when we are confronted
with bigotry, our visceral reaction is to strike back hard, which in
this case took the form of the tough injunction the court upholds
today. But hostility, hatred, jealousy, resentment, envy, and
vengefulness are passions as old as humankind and, though the
expression of such sentiments may cause much misery and mischief,
hateful thoughts cannot be quelled at too great a cost to freedom.
“That at any rate is the theory of our Constitution.” (Ibid.)
“If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable” (Texas
v. Johnson (1989) 491 U.S. 397, 414)–that is, until today. Today, this
court holds that an idea that happens to offend someone in the
workplace is “not constitutionally protected.” (Plur. opn., ante, at p.
18.) Why? Because it creates a “hostile … work environment” (id. at
p. 1) in violation of the Fair Employment and Housing Act (FEHA). (Gov.
Code, § 12900 et seq.) In essence, the court has recognized the FEHA
exception to the First Amendment.
In Meritor Savings Bank v. Vinson (1986) 477 U.S. 57 (Meritor), the
United States Supreme Court held that a “hostile environment” could
constitute workplace sex discrimination in violation of title VII of
the Civil Rights Act of 1964 (Title VII). (Meritor, supra, 477 U.S. at
pp. 66, 73.) Specifically, the high court held that a plaintiff need
not suffer “‘tangible loss’ of ‘an economic character,'” as
distinguished from “‘purely psychological aspects of the workplace
environment,'” in order to recover under Title VII. (Meritor, supra,
477 U.S. at p. 64.) In support of its holding, the court cited with
approval the Equal Employment Opportunity Commission’s guidelines on
discrimination because of sex, which defined unlawful “sexual
harassment” as including “‘verbal … conduct of a sexual nature.’ …
[having] ‘the purpose or effect of … creating an intimidating,
hostile, or offensive working environment.'” (Id. at p. 65.)
In Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 (Harris), the
court reaffirmed and refined its holding in Meritor. The court held
that a discriminatory environment need not cause “concrete
psychological harm” to violate Title VII; rather, it need only
“reasonably be perceived … as hostile or abusive.” (Id. at p. 22.)
More important, in Harris, unlike Meritor, the only conduct that was at
issue was offensive speech. Thus, in Harris (and in dictum in Meritor),
the high court recognized what is in essence the statutory tort of
injurious speech. How does that holding reconcile with the court’s
statement just a few years earlier in Hustler Magazine v. Falwell
(1988) 485 U.S. 46, reaffirming its “longstanding refusal to allow
damages to be awarded because … speech … may have an adverse
emotional impact on the audience”? (Id. at p. 55.) The residents of
Skokie, Illinois–some of whom had survived the horrors of the
Holocaust in Europe only to face similar hatred on the streets of
America–must have learned about Meritor and Harris and wondered why
hostile and offensive speech is remediable in the often
rough-and-tumble environment of the workplace, but not on the streets
and sidewalks of our neighborhoods. (See Rowan v. United States Post
Office Department (1970) 397 U.S. 728, 738 [upholding a statute
protecting people from objectionable speech in the places where they
live].) A constitutional scholar would answer that the high court has
never addressed whether Title VII’s ban on “offensive” “verbal …
conduct” in the workplace is consistent with the First Amendment.
(Meritor, supra, 477 U.S. at p. 65.) Nevertheless, the plurality
opinion assumes the high court resolved that issue long ago and in
favor of censorship.
The plurality notes that the FEHA has the same broad scope as Title
VII, and, like Title VII, it prohibits “[v]erbal harassment” (plur.
opn., ante, at p. 7) that is “‘sufficiently pervasive so as to …
create an abusive working environment ….'” (Plur. opn., ante, at p.
8, quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 608.) Then, with an offhand summary of the holdings in Meritor and
Harris and no further analysis, the plurality states that “these
decisions are at least implicitly inconsistent with any suggestion that
speech of this nature is constitutionally protected.” (Plur. opn.,
ante, at p. 14.) Why? These cases did not even discuss the First
Amendment, let alone apply it. Finally, the plurality relies on dictum
that is not even on point from R.A.V. v. St. Paul (1992) 505 U.S. 377
(R.A.V.).
The issue in R.A.V. had nothing to do with Title VII or workplace
discrimination. Rather, R.A.V. held that, even when speech falls within
a category that is generally subject to regulation–such as obscenity,
defamation, or fighting words–the government cannot regulate the
speech in a content-based way. (R.A.V., supra, 505 U.S. at pp.
383-384.) “Thus, the government may proscribe libel; but it may not …
proscrib[e] only libel critical of the government.” (Id. at p. 384.)
Similarly, the government may proscribe fighting words, but it may not
proscribe only those fighting words that “provoke violence ‘on the
basis of race, color, creed, religion or gender.'” (Id. at p. 391.) In
dictum elaborating on this point, the court noted that this
content-neutrality requirement is less strict in the case of fighting
words and similar “proscribable speech” than in the case of “fully
protected speech.” (Id. at p. 387.) As an example, the court noted,
expressly without deciding, that “sexually derogatory ‘fighting words,’
among other words, may” violate Title VII, though this regulation of
only those fighting words that are “sexually derogatory” is obviously
not content neutral. (Id. at p. 389, italics added.)
This tentative dictum is hardly a “ruling[]” (plur. opn., ante, at p.
18) that “leave[s] little room for doubt” (id. at p. 15), and, in any
case, it is clearly limited to “proscribable speech” such as fighting
words. Indeed, if it were not so limited, it would fail to illustrate
the high court’s point, which is that the content-neutrality
requirement applies less strictly in the case of “proscribable speech.”
As such, this dictum can hardly be characterized as a definitive
determination that the First Amendment does not protect speech that
creates a hostile work environment. On the contrary, R.A.V. emphasizes
that the content-neutral requirement is more strict in the case of
“fully protected speech.” (R.A.V., supra, 505 U.S. at p. 387.) Thus, if
anything, R.A.V. suggests Title VII’s content-based regulation of
speech is invalid to the extent it regulates “fully protected speech”
like the speech at issue here. In other words, if the ordinance at
issue in R.A.V. was unconstitutional because it singled out for
regulation only those fighting words that “provoke[d] violence ‘on the
basis of race, color, creed, religion or gender'” (R.A.V., supra, 505
U.S. at p. 391), then a fortiori Title VII is unconstitutional because
it is a content-based regulation of speech not limited to fighting
words.
I can think of no circumstance in which this court has brushed aside
such an important constitutional protection as the right to free speech
on the basis of so little analysis or authority. And it is no answer
that the government is merely proscribing discriminatory conduct,
whether or not spoken words are an integral part of that conduct, and
therefore it can incidentally regulate speech in the workplace without
violating the First Amendment. (Plur. opn., ante, at pp. 13-14, 18, fn.
6.) Here, it is the speaker’s philosophical beliefs and opinions
themselves that cause the injury, and it is those beliefs and opinions
that the government wants to censor. If government can censor those
beliefs and opinions under the rubric of merely proscribing
discriminatory conduct, then it can also punish Father Terminiello for
discriminatorily denouncing Russian Jews in his speech in a Chicago
auditorium, and it can punish Clarence Brandenburg for advocating the
deportation of Blacks, and it can prevent Nazis from marching through
the streets of Skokie.
Indeed, if applied generally, the plurality’s rule would create the
exception that swallowed the First Amendment. As part of the FEHA, the
Legislature has also attempted to address the problem of discrimination
in our neighborhoods by regulating residential real estate
transactions. (Gov. Code, § 12955.) If, in furtherance of this goal,
the Legislature had enacted a prohibition against “verbal conduct”
creating a “hostile sidewalk environment” analogous to the similar
prohibition that applies in the workplace, courts could then enjoin
speeches and parades that express discriminatory ideas, and under the
plurality’s open-ended standard, these injunctions would be
constitutional because they merely proscribed discriminatory conduct
with only an incidental effect on speech. The plurality simply has not
explained what makes the workplace different from all the other places
where we have to put up with hateful and discriminatory speech.
Moreover, here we are not dealing merely with a regulation of speech,
we are dealing with an absolute prohibition–a prior restraint. Prior
restraints of speech are particularly inimical because they do not
merely place a burden on the speaker’s ability to communicate a
message; rather they erase that message before its effects can be
assessed. The plurality repeatedly asserts that the prior restraint at
issue here is permitted under the First Amendment “because defendants
simply were enjoined from continuing a course of repetitive speech that
had been judicially determined to constitute unlawful harassment in
violation of the FEHA.” (Plur. opn., ante, at p. 29; see also id. at
pp. 1, 22-23, 25, 33.) So speech that is “unlawful” is now unprotected
by the state and federal Constitutions. That standard turns the world
on its head. In effect, the plurality says, “The Legislature, acting in
response to current popular sentiments, has carved out certain ideas
from the universe of ideas and declared them to be bad ideas, and once
an idea has been judicially determined to be one of these bad ideas,
courts can prohibit anyone from expressing it.” I disagree.
Justice Werdegar’s concurring opinion, though it agrees the court’s
analysis is fatally flawed (conc. opn., ante, at pp. 4-6) and tries
harder to address the First Amendment issues, is no more persuasive.
Conceding that none of the existing First Amendment doctrines standing
alone permits the injunction at issue here, she carves a new exception
from the First Amendment because a “contrary holding” (id. at p. 26)
would mean “Lawrence’s First Amendment rights … outweigh the rights
of the Latino plaintiffs to be free of unwanted racial discrimination.”
(Id. at p. 27.)
The Constitution, however, has already balanced the scales. Plaintiffs
should not be subjected to racial invectives in the workplace. But this
case is not, as Justice Werdegar suggests, an all-or-nothing choice
between either upholding the injunction or subjecting employees to a
“constant stream of [denigrating] verbiage.” (Conc. opn., ante, at p.
26, fn. omitted.) There is a middleground: employees can sue and
recover damages. It is hard to imagine any employer would continue to
tolerate discriminatory speech in the workplace after shouldering the
cost of litigation and a damage award, and, if it did, it would run the
risk of paying a second award, including hefty punitive damages and
attorney fees. I think that remedy is sufficient to deter any “unwanted
racial discrimination.” (Id. at p. 27.)
As Justice Werdegar recognizes, this case pits freedom of speech
against racial equality, and because the tension between freedom and
equality cannot be reconciled, the best that can be achieved is a rough
equilibrium. (Conc. opn., ante, at pp. 27, 29.) In this regard, the
California Constitution strikes the appropriate balance by
distinguishing between prior restraints and all other regulations of
speech. 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.” In Dailey v. Superior Court (1896) 112 Cal. 94, 97
(Dailey), discussing an earlier, almost identical version of this
provision, we said, “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.”
Since Dailey, we have upheld injunctions against speech, but only
proscribable speech such as obscenity or fighting words, or where other
compelling circumstances made injunctive relief absolutely necessary.
(Cf. People ex rel. Gallo v. Acuna (1996) 14 Cal.4th 1090.) No such
circumstances exist here, where the speaker has merely expressed
disgusting opinions and may well have ceased doing so. Forcibly
prohibiting expression may only reinforce the animosities we are trying
to subvert. In permitting speech, but requiring the speaker to pay
damages for injurious speech, the California Constitution preserves
both the freedom of the speaker and the equal dignity of the audience.
This compromise not only discourages injurious speech, but may also
foster positive change in the speaker’s attitudes. Accordingly, I would
draw the line in the same place as the California Constitution and find
the injunction at issue here to be an unconstitutional prior restraint
of speech.
The court also rejects defendants’ argument that the injunction here is
overly broad. Justice Werdegar’s concurring opinion does not address
this issue other than to state that the injunction must be
“sufficiently narrowed on remand to apply to the workplace only.”
(Conc. opn., ante, at p. 28.) The plurality opinion recognizes that an
injunction restraining speech must “burden no more speech than
necessary to serve a significant government interest” (Madsen v.
Women’s Health Center, Inc. (1994) 512 U.S. 753, 765), but argues that
this injunction satisfies that standard. (Plur. opn., ante, at p. 31.)
I disagree.
First, because we are deciding this case on a very limited record, we
do not know what exactly plaintiffs’ supervisor said, how often he said
it, or what the surrounding circumstances were. Moreover, we do not
know whether the damages award, which defendants have chosen not to
challenge, was adequate to bring an end to the conduct that created the
hostile work environment. Therefore, we do not know if the broad
injunction was necessary, or if a more specific one prohibiting, for
example, only pervasive use of certain epithets would have sufficed.
Second, the injunction does not merely prohibit plaintiffs’ supervisor
from repeating his discriminatory comments in plaintiffs’ presence;
rather, it prohibits him from repeating them anywhere in the workplace.
The United States Supreme Court made clear in Harris that, “if the
victim does not subjectively perceive the [work] environment to be
abusive, the conduct has not actually altered the conditions of the
victim’s employment, and there is no Title VII violation.” (Harris,
supra, 510 U.S. at pp. 21-22.) This standard also applies under the
FEHA. (Plur. opn., ante, at p. 8.) Therefore, if an employee never
learns about the use of certain words in the workplace, those words
cannot create a hostile work environment for that employee. I see no
reason under this standard to enjoin plaintiffs’ supervisor from
expressing his discriminatory opinions to persons in the workplace who
are not offended by them. In sum, even if the injunction at issue here
were otherwise constitutional, it is overly broad as written and
therefore invalid.
Every age has its fashionable ideas and its disfavored ideas. In the
early part of this century, the public was particularly thin-skinned
about communism. Courts tried to prohibit and punish the dissemination
of communist ideas, but the United States Supreme Court struck down
these decisions with a resounding no. (See, e.g., Gitlow v. New York
(1925) 268 U.S. 652.) Justice Holmes added the phrase “free trade in
ideas” to our judicial lexicon and admonished us that “the best test of
truth is the power of the thought to get itself accepted in the
competition of the market.” (Abrams v. United States, supra, 250 U.S.
at p. 630 (dis. opn. of Holmes, J.).) In other words, the only way to
fight a bad idea is with a good idea. But today this court reopens the
door to censorship with a resounding yes. The Legislature is now free
to prohibit the expression of ideas it dislikes, and courts can enforce
these prohibitions with injunctions.
None of us on this court condones ethnic and racial discrimination in
the workplace, but the issue in this case is speech, not just
discrimination. Speech is unpleasant sometimes. It may be disgusting.
It may be offensive. Contrary to the nursery rhyme, it may even be
injurious. But, with few exceptions, none of which applies, the state
and federal Constitutions prohibit courts from using their injunctive
power as a surgical instrument to extricate disfavored ideas from the
popular discourse, and this principle applies even here where the ideas
in question were, from what we can tell from the limited record, both
offensive and abhorrent.
One of the truths we hold to be self-evident is that a government that
tells its citizens what they may say will soon be dictating what they
may think. But in a country that puts such a high premium on freedom,
we cannot allow ourselves to be the captives of orthodox, culturally
imposed thinking patterns. Indeed, I can conceive no imprisonment so
complete, no subjugation so absolute, no debasement so abject as the
enslavement of the mind.
Fundamentally, this is a case about equality and freedom. Thus, it is a
case about our most basic political ideals; about our highest
aspirations and our greatest failures; our toughest challenges and our
deepest fears. It is about a bafflingly elusive dream of equality and
the freedom, not immune from abuse, to speak words that make others
more than uncomfortable. It is a case about equality and freedom and
the irreconcilable tension between the two. We are all the
beneficiaries of the freedom the Constitution guarantees, and we all
pay its costs, even though the price may sometimes be anguish.
I dissent.
BROWN, J.
http://groups-beta.google.com/group/Political-Paridise/browse_frm/thread/d41891e2f07a07a5/fa43120bc1f69649?hl=en#fa43120bc1f69649
I’m following her argument, but going to hit up the dictionary on some of the language she uses to establish destinctions.
Right – did you get an email I sent? I used the address on the userlist.
I neglected to follow up on this – – – What Justice Brown is basically saying here is that an employer is protected by the first ammendment if it chooses to refer to their employees by using racial slurs. That the worker has no right to a workplace void of such harrassment.
I want to read the case itself, I’m sure breeze did a good job of paraphrasing what happened but I want what is on the recond in black and white.
Right – the thing I posted there that Breaze posted in Political Paradise is the Judge Brown’s actual opinion on the case. She was the one disenting vote from what I understand and argued the points I commented on above. These are her very words. Can’t get any clearer than how she explains that an employer has the right to allow racial harrassment in the workplace. She feels that there’s no difference between a racial slur spoken on the street and one at a person’s job.
But he had to have gotten the paper from somewhere. I’d like to read the elements of the case as well as the affirming and dissenting opinions in their original form. It’s the only way to make sure I’m forming my opinions on the correct info.
Update, she was one of three dissenters. More to come.
Mosk, Kennard & Brown.
I neglected to follow up on this – – – What Justice Brown is basically saying here is that an employer is protected by the first ammendment if it chooses to refer to their employees by using racial slurs. That the worker has no right to a workplace void of such harrassment.
That is absolutely not what she is saying. Here is a line form the first paragraph:
Among our most cherished constitutional principles is that speech–even if offensive–should be protected unless, and until, it produces a demonstrable harmful effect.
What she is saying is that the right to free expression is so important that only when harm is dispensed can a speaker be head accountable for their speech.
She’s not arguing against the monetary rewards the plantiffs received rather she is against the effective nullification of the first ammendment. Still reading…
Right – you pointed out exactally where she’s wrong. She argues in that opinion that a racial slur spoken in the workplace can actually work towards higher understanding…or provide a chance for the two employees to talk about it. It’s ridiculous.
Keep reading and let me know, but I read it twice and while she uses a lot of words in an attempt to hide the most ridiculous statements, they’re in there. And when you come across them, you’ll see what I mean.
She is against employers being punnished for allowing racial slurs in the workplace. That’s her position. That the 1st ammendment must protect me calling a black co-worker a nigger if I want to.
The oposite of ‘enlightened’. She wants to turn back the hands of time…to that period between slavery and the civil right’s movement. It’s an insult to us all that she be promoted to such a high position.
Right – you pointed out exactally where she’s wrong. She argues in that opinion that a racial slur spoken in the workplace can actually work towards higher understanding…or provide a chance for the two employees to talk about it. It’s ridiculous.
No, I think it’s that the government cannot prohibit someone from speaking in the future, effectively nullifying the 1st ammendment. She’s not saying it was ok to say what he did but the government cannot eliminate someone’s first ammendment rights in future events. It’s a court order preventing someone from future expression, a constitutionally protected right.
Keep reading and let me know, but I read it twice and while she uses a lot of words in an attempt to hide the most ridiculous statements, they’re in there. And when you come across them, you’ll see what I mean.
Or she is a highly educated woman who is able to expertly articulate exactly what she means. Also, read the affirming opinion, there’s some good stuff in there to. The defense screwed up a time or two so the judge is forced to rely soley on the basis of the prior virdict. You’ll see what I mean. THe affirmers aren’t that sure themselves, they default alot.
She is against employers being punnished for allowing racial slurs in the workplace. That’s her position. That the 1st ammendment must protect me calling a black co-worker a nigger if I want to.
Again, no, it is preventing the government from silencing you for the rest of your life thereby denying you the constitutional right to say nigger and, thus, expressing yourself freely. The decision denies one man in the United States his 1st ammendment right to freedom of expression. Saying what ever he said before will land him in jail for contempt of court. We do not need this kind of slippery slope.
The oposite of ‘enlightened’. She wants to turn back the hands of time…to that period between slavery and the civil right’s movement. It’s an insult to us all that she be promoted to such a high position.
She’s black, right? I don’t think she is a fan of slavery. I do think she understands that the 1st ammendment, among others, was highly instrumental in freeing blacks from slavery and segregation. Hell, a court could have banned talking about blacks and slavery would still be here today.
How was that the issue in the case though? The case involved a company that condoned the racial slurs. Why is she pondering prior restraint? To me it seemed like she was sniffing out a loophole to condone racial slurs in the workplace. She clearly demonstrates that she does not differentiate between a slur spoken on the street and one spoken in the workplace.
Combine this with her belief that age discrimination is not on par with racial or sexual discrimination and it’s clear to me that her goal is to confuse the issue at hand. She is a supreme court judge in California, so she can write whatever she wants in that opinion, whether it actually pertains to the case or not.
Can you post a link? I don’t doubt her intelligence, but do question why she ties in prior restraint. In my mind, this would be a worker signing an agreement to not use racial slurs upon being hired. Like a drug test. I don’t see how it’s relevent.
I’m with the prior restraint concept. I agree that we all shouldn’t be restricted before we do something wrong, but why it was expressed in this case I’m not clear on.
The intention here isn’t to restrain free speech, but to force a company to punnish or terminate employees who harass their fellow employees. I see the way she veered in that opinion as semantics. Pondering hypotheticals so that she could get something into the record that had little to do with the case.