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U.S. Supreme Court Justice Clarence Thomas issued a cautionary dissent Monday after the court refused to review a California decision that prohibits a car rental shop steward from using racial epithets at work. Saying last year’s decision from the California Supreme Court likely repressed protected speech, Thomas said his colleagues should have overlooked problems with the record and voted to take the controversial case. “Though the record may disable us from resolving here and now every detail of the interaction between the First Amendment and workplace harassment law, an incremental approach to this area would seem wise in any event,” Thomas wrote. The California Supreme Court’s opinion in Aguilar v. Avis Rent A Car System Inc., 21 Cal.4th 121, has been watched closely by employment and First Amendment lawyers because it enjoined an employee from using certain language on the job. The U.S. Supreme Court would have had to decide whether such an injunction constituted a prior restraint on speech. But because of a quirk in the way the case was tried, they would have done so without any evidence in the record as to the epithets the employee used. Thomas said the California ruling, forbidding Avis employee John Lawrence from uttering words deemed offensive to Latino employees, was unnecessary and probably unconstitutional. He also said the U.S. Supreme Court could not apply anti-discrimination laws to pure speech in the workplace without first overhauling its First Amendment body of law. “Even if some types of harassing speech in the workplace do not enjoy First Amendment protection,” Thomas wrote, “there has been no showing that a prior restraint, rather than the less severe remedy of money damages for any future violations, is necessary to regulate Lawrence’s speech.” In 1993, Lawrence was an Avis shop steward working at the company’s San Francisco International Airport location. According to the plaintiffs’ complaint, he routinely harassed Latino workers, calling them derogatory names, like “wetback,” and snapping towels at them. A group of Latino workers sued Avis and Lawrence under California’s Fair Employment and Housing Act and a jury awarded them damages. San Francisco Superior Court Judge Carlos Bea then enjoined Avis and Lawrence from using racial epithets in the future. By declining certiorari on Monday, the U.S. Supreme court allowed that injunction to remain in place. In his dissent, Thomas said the court should have taken the case because prior restraint bears a heavy presumption against its constitutional validity. The justice also wrote that the thorough treatment of the issue in the California opinions makes it unnecessary to await a split in the lower courts. Although a divided 1st District Court of Appeal panel upheld the injunction, it did so with the directions that the injunction must include a list of the banned words and could only cover Lawrence at work. Last August, the California Supreme Court — in five separate opinions — let Bea’s order stand. Although the state and federal constitutions frown on prior restraints on speech, Chief Justice Ronald George’s plurality opinion said the injunction wasn’t a prior restraint because a jury had already found that Lawrence’s speech had created a hostile work environment. “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,” George wrote. That conclusion met with dissents from Justices Stanley Mosk, Joyce Kennard and Janice Rogers Brown. “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,” Brown wrote. In a concurring opinion, Justice Kathryn Mickle Werdegar said the plurality was “sailing into uncharted First Amendment waters.”

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