In a complex 104-page decision, the California Supreme Court ruled in 1999 that a judge may forbid the use of racial epithets in a workplace if there is proof that such words were used in the past.  Ruling in the case of Aguilar v. Avis Rent A Car System, the high court was so deeply divided that there were five different opinions from the seven justices--but no majority opinion.

     The case began when 17 Hispanic employees of Avis at San Francisco International Airport sued, alleging that a supervisor there had used words such as "wetback" and "crook" in reference 
to Hispanic workers, thereby violating California's Fair Employment and Housing Act.  The 17 workers won a $135,000 jury verdict against Avis and the supervisor.  The trial judge also granted their request for an injunction, ordering the supervisor not to use any of a long list of words considered racially offensive--and ordering Avis to make sure the forbidden words were not used in the workplace.

     This prompted an appeal on First Amendment grounds, raising an issue that has been widely debated in academic circles:  where First Amendment freedoms end and the right to ban workplace harassment begins.  The state Supreme Court clearly had difficulty resolving the issue.

     The justices voted 4-3 to uphold the injunction, with three justices joining in a plurality opinion written by Chief Justice Ronald George.  George  ruled that the specific facts of this case justified an injunction although that would not be an appropriate remedy in many other situations.  He emphasized that such an order would not be proper until after there has been a finding that the use of epithets created a hostile work environment.  In any event, such an order should not extend beyond the workplace.

     Justice Kathryn Mickle Werdegar wrote a separate opinion concurring with the result but criticizing George for failing to address whether the First Amendment permits the imposition of civil liability at all for pure speech that creates a racially hostile workplace environment.  But she did vote to uphold the injunction--thereby creating a majority in favor of upholding it--without agreeing on the rationale for this conclusion.

     Three other justices wrote separate dissenting opinions.  Justice Stanley Mosk said the injunction was an unconstitutional prior restraint.  "Among our most cherished constitutional prin-
ciples is that speech--even if offensive--should be protected unless, and until, it produces a demonstrable harmful effect," Mosk wrote.  He said the judge's injunction--with its list of verboten words--"constitutes just such a prior restraint."  "It impermissibly restricts speech based on the mere assumption that these words will invariably create a hostile and abusive work environment amounting to employment discrimination," Mosk added.

     The case was especially troubling to several justices because the factual record did not include a complete list of the words that were banned.

     Because this case raises basic constitutional issues that have not been addressed by the U.S. Supreme Court, some legal scholars predicted that it would ultimately be decided by that court.  Others, however, decried the lack of a complete factual record and predicted that the nation's highest court would not take a case that lacked a better factual record on which to base 
a decision about something as important as the scope of the First Amendment.