MOSK, J., dissenting.

I dissent.

The plurality conclude that a remedial injunction under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), banning a list of derogatory words from use in the workplace, is a permissible remedy for employment discrimination by defendants John Lawrence and Avis Rent A Car System, Inc. (Avis). I disagree. Among our most cherished constitutional principles is that speech — even if offensive — should be protected unless, and until, it produces a demonstrable harmful effect.

Both the First Amendment of the United States Constitution and article I, section 2, subdivision (a), of the California Constitution restrict the use of content-based prior restraints on speech. The order at issue here — enjoining any future use in the workplace of specified words — constitutes just such a prior restraint. It impermissibly restricts speech based on the mere assumption that these words will inevitably create a hostile and abusive work environment amounting to employment discrimination. Nor is this injunction salvaged by labeling it a restraint on conduct rather than speech.

The plurality's error is particularly glaring because they are deciding this matter in a contextual vacuum, without the benefit of a factual record. They thus overlook the duty of an appellate court, where free speech rights are at stake, to independently review the trial court's findings and the whole record to assure that any injunction is narrowly tailored and justified by compelling necessity. That duty is no less imperative in a matter involving speech in the workplace. As the United States Supreme Court recently emphasized: "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." ( Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82 [ 118 S.Ct. 998, 1003].) Here, we know nothing of the surrounding circumstances. We do not even know what offensive remarks were made, to whom, or when. All we do know is that the parties have agreed that the remarks did not amount to "fighting words" — i.e., that the injunction involves otherwise protected speech — and that Lawrence has apparently not made any similarly offensive remarks to Avis employees since 1992.

Like my colleagues, I abhor discrimination in any form. But I feel equally strongly that we cannot use the instrumentality of the courts to penalize speech before we know what was said, to whom, and with what effect. It should be obvious that we may not do so in advance, based only on predictions of future harm.

I

The crux of the lead opinion is that the injunction forbidding the use of a list of words does not amount to a prior restraint so long as it was issued after a jury determination of past employment discrimination. It endorses the formulation of amicus curiae American Civil Liberties Union of Northern California that speech was properly enjoined here because "a fair judicial process has determined that a repetitive pattern of speech is unprotected." I am unpersuaded.

"The term `prior restraint' is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' [Citation.] Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints." ( Alexander v. United States (1993) 509 U.S. 544, 550.) The injunction here falls squarely within that definition. It was not transformed into something acceptable simply because it was issued after a judicial finding of past employment discrimination.

According to the Chief Justice, the injunction passes constitutional muster because it simply precludes defendants from continuing their unlawful activity. It does more than that. It directly targets otherwise protected speech, forbidding any future use of a list of offensive words in the workplace — even outside the presence of plaintiffs and even if welcome or overtly permitted. Although the lead opinion insists that it would prohibit an illegal course of conduct, in fact it regulates speech on the basis of expressive content. (See De Angelis v. El Paso Mun. Police Officers Assn. (5th Cir. 1995) 51 F.3d 591, 597, fn. 7.)

Moreover, it is not true that any and all future use even of offensive epithets will necessarily amount to a continuation of the same unlawful activity. As the lead opinion concedes, "not every utterance of a racial slur in the workplace violates the FEHA or Title VII [of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e et seq.)]." (Maj. opn., ante, at p. 7; see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608; Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [" `[M]ere utterance of an . . . epithet which engenders offensive feelings in an employee [citation] does not sufficiently affect the conditions of employment to implicate Title VII . . . . Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation."].) I am not persuaded that a judicial finding that employees were previously subjected to verbal harassment in violation of FEHA could justify a prior restraint on expression not amounting to "fighting words."

The lead opinion draws analogies to several United States Supreme Court decisions. None is in point.

Thus, the lead opinion relies on several decisions involving limited injunctive remedies against the sale or exhibition of obscene materials, including Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436, Times Film Corp. v. Chicago (1961) 365 U.S. 43, Freedman v. Maryland (1965) 380 U.S. 51, and Paris Adult Theater v. Slaton (1973) 413 U.S. 49. Unlike the language at issue here, obscenity is not within the area of constitutionally protected speech. ( Roth v. United States (1957) 354 U.S. 475, 485.)

The lead opinion's analogy to Pittsburgh Press Co. v. Human Rel. Comm'n (1973) U.S. 376, 413 is also unavailing. There, the United States Supreme Court addressed the constitutionality of a restriction on commercial speech in support of an illegal commercial activity. ( Id. at pp. 388-389.) Again, the United States Supreme Court emphasized that the order "[did] not endanger arguably protected speech" and did not require the court "to speculate as to the effect of the publication" in the future. ( Id. at p. 390.) Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, also relied on by the majority, is inapposite; unlike the speech at issue in Madsen, the speech here is not content-neutral, nor can it be said that the injunction burdens no more speech than necessary, since it forbids any use of particular words.

By contrast, the injunction at issue constitutes a broad prohibition touching on core protected speech. It applies to words that, although offensive, may be used to convey ideas or emotions and are therefore shielded by the First Amendment. "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; Cohen v. California (1971) 403 U.S. 15, 26 ["[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process."].)

Even assuming that the use of derogatory speech can amount to employment discrimination, I disagree that any future use even of slurs, vulgarity, or derogatory epithets in the workplace — even by a person who has previously engaged in employment discrimination — can constitutionally be proscribed. That is because the offensive content and effect of using any one, or more, of a list of verboten words cannot be determined in advance: "The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say. Similarly, it is the content of the utterance that determines whether it is a protected epithet or an unprotected `fighting comment.'" ( Young v. American Mini Theatres (1976) 427 U.S. 50, 66, fn. omitted.) For this reason, I would hold that the injunction fails to overcome the heavy presumption against the constitutional validity of prior restraints on speech. ( Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 317; Wilson v. Superior Court (1975) 13 Cal.3d 652, 657.)

II

Article I, section 2, subdivision (a), plainly permits holding Lawrence and Avis responsible for abuse of the right, but not censorship by way of a prior restraint. "The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. 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. . . . 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." ( Dailey v. Superior Court (1896) 112 Cal. 94, 97; Pines v. Tomson (1984) 160 Cal.App.3d 370, 393 ["Although the section does not use the term `prior restraint,' the plain meaning of the first sentence of article I, section 2, subdivision (a) is that `sentiments' are protected from any prepublication sanctions, i.e., from all prior restraints."].)

As the dissenting opinion in the Court of Appeal below correctly observed: "Punishment for and suppression of speech are two very different things. . . . No California appellate court has ever held . . . that persons can be subjected to prior restraint on speech, and legally forbidden to speak on pain of fine or being sent to jail, for merely making rude or even immoral comments that might have a bad effect on the listener."

The lead opinion's attempt to construe Dailey — and the California Constitution — narrowly on this point fails. Thus, it relies on People ex rel. Busch v. Projection Room Theatre (1976) 17 Cal.3d 42, 57, which upheld the constitutionality of an action to abate the sale or display of obscene material as a public nuisance. As I stated at the time, in my view the decision in Busch was incorrect; the public nuisance proceedings at issue failed to pass constitutional muster. (See id., at p. 62 (conc. dis. opn. by Mosk, J.) ["[S]uch proceedings . . . offend article I, section 2, of the California Constitution which prohibits action that may `restrain or abridge liberty of speech or press.'"]; see also id., at pp. 63-74 (dis. opn. by Tobriner, J.).) It is also distinguishable: it involved exhibition of specific magazines and films adjudged to be obscene, i.e., to constitute unprotected expression. Nor did the majority therein purport to apply, or even cite, article I, section 2, subdivision (a).

The lead opinion also relies on Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638, which, like Pittsburgh Press Co. v. Human Rel. Comm'n, supra, 413 U.S. 376, involved restrictions on commercial speech related to illegal activity — using the telephone to solicit acts of prostitution. The activity was found not to involve protected speech within the meaning of the First Amendment. On those grounds, Goldin, too, is distinguishable. Nor, again, did the majority in Goldin even address the free speech protections under article I, section 2, subdivision (a).

Finally, the lead opinion cites People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, which upheld the validity of an injunction restraining future activities of gang members under the common law nuisance laws. I continue to believe that Gallo was wrongly decided. (See id., at pp. 1132-1148 (dis. opn. by Mosk, J.).) But, in any event, it is unilluminating: the majority in Gallo did not address any question involving prior restraints on speech; nor did Gallo involve any application whatsoever of article I, section 2.

The plurality express a concern that unless an injunction issues in this matter, plaintiffs will be confined to bringing repetitive lawsuits. I hope that would not result. However, a mere policy consideration is of little weight in light of the strong presumption against prior restraints.

In any event, I disagree that the threat of repetitive litigation would be less effective in terms of avoiding future workplace discrimination by Avis than the possibility that an individual supervisor will be jailed for contempt. As the damages action in this matter demonstrates, speech may be subject to strong sanctions under FEHA if it amounts to employment discrimination. Faced with the high costs of defending against such suits — including compensatory damages, attorney fees, and punitive damages — employers like Avis are likely to regard it as a potent remedy indeed.

III

For the foregoing reasons, I would reverse the judgment of the Court of Appeal.

DISSENTING OPINION BY KENNARD, J.

KENNARD, J., dissenting.

I dissent.

Constitutional free speech guarantees are in undeniable tension, if not conflict, with the statutory rights of employees to be free from discriminatory verbal harassment that creates a hostile work environment. Although this tension has generated lively debate in scholarly legal journals, the United States Supreme Court has yet to address the issue. This case presents one aspect of the problem: the use of injunctions prohibiting certain kinds of future speech, on the basis of its content, as a remedy for hostile environment employment discrimination.

As I will explain, the particular content-based injunction at issue here, both as drafted by the trial court and as modified by the Court of Appeal, is invalid under the free speech guarantees of both the federal and state Constitutions because the record fails to establish that an injunction restricting future speech is necessary to prevent a recurrence of the wrongful acts of employment discrimination. Moreover, even assuming a need for some content-based speech restriction could be shown, the injunction here is invalid because it is not narrowly drawn to target only the prohibited discrimination.

These defects are not curable. In particular, the Court of Appeal's proposal to amend the injunction by adding a list of forbidden "bad words" will not make the injunction any less an abridgment of the right of free speech. Indeed, I question whether any injunction prohibiting workplace expression of particular views, however abhorrent those views, can be reconciled with constitutional free speech guarantees: "[U]nder our system of government we may not prohibit the dissemination of views simply because they are controversial, distasteful, or disturbing. To sanction such a prohibition `would be a complete repudiation of the philosophy of the Bill of Rights.' [Citation.]" ( Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10 Cal.4th 1009, 1027 (dis. opn. of Kennard, J.).)

I

Seventeen employees brought this action claiming employment discrimination in violation of the state Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). They named as defendants their common employer, Avis Rent A Car System, Inc. (Avis), and 10 Avis employees, one of whom was John Lawrence. Of relevance to the issue raised here, plaintiffs alleged that Avis had employed them as drivers and that Lawrence, who was assigned to Avis's service station at the San Francisco International Airport, created a hostile work environment by verbally harassing and demeaning them "on the basis of their race, national origin and lack of English language skills." They also alleged that Kathy Black, an Avis supervisor, had conducted a discriminatory investigation of an alleged theft.

For reasons not disclosed by the appellate record, the case proceeded to trial as to only 12 of the 17 plaintiffs. By special verdicts, the jury found that Lawrence had unlawfully harassed and discriminated against four of these plaintiffs, three of whom Black had also discriminated against. With respect to three of these four plaintiffs, the jury found that Avis knew or should have known of Lawrence's conduct and failed to stop it. The jury awarded $25,000 in emotional distress damages to each of the three plaintiffs against whom both Lawrence and Black had discriminated, but it awarded no damages to the plaintiff against whom Lawrence alone had discriminated.

After the jury returned these special verdicts, the trial court decided to grant injunctive relief. Interpreting the special verdicts as findings that Lawrence had "engaged in acts of harassment so continual and severe as to alter the working conditions" for the four plaintiffs, the court found "a substantial likelihood based on his actions that he will do so in the future unless restrained." Referring to Lawrence, the court said that "[i]f he has done it four times against four Latinos, there is a substantial likelihood that he will do it again . . . ." But neither the plaintiff nor the court disputed the representations of defendants' attorney that only one of the plaintiffs still worked for Avis in San Francisco and that Lawrence had not engaged in any harassment during the pendency of the lawsuit. Defendants Avis and Lawrence objected that the proposed injunction was an unconstitutional abridgment of their free speech rights, but the court overruled these objections.

The trial court found that Lawrence's discriminatory acts had consisted of offensive touching and the utterance of derogatory racial or ethnic epithets. As here relevant, the trial court granted a permanent injunction prohibiting Lawrence "from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of [Avis]" and also "from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by [Avis] in California." The injunction prohibited Avis from "allowing defendant John Lawrence to commit any [such] acts . . . under circumstances in which it knew or should have known of such acts . . . ."

Lawrence and Avis appealed from the portion of the judgment granting the permanent injunction. The Court of Appeal found the injunction overbroad insofar as it restricted Lawrence's activities other than at the workplace, and it found the injunction vague in its prohibition against "derogatory racial or ethnic epithets." To cure these defects, the Court of Appeal reversed and remanded to permit the trial court to redraft the injunction to limit its scope to the workplace and to add "an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets such as those actually used in the workplace by Lawrence."

To determine whether the injunction, even as limited by the Court of Appeal, is an unconstitutional abridgment of constitutional free speech rights, this court granted the petition for review filed by defendants Avis and Lawrence.

II

The First Amendment to the federal Constitution, made applicable to the states by the Fourteenth Amendment ( Near v. Minnesota (1931) 283 U.S. 697, 732), declares that "Congress shall make no law . . . abridging the freedom of speech . . . ." This First Amendment free speech guarantee restricts not only the power of legislatures to enact laws of general applicability but also the authority of courts to issue injunctions as remedies for violations or threatened violations of a legislative or judicial decree. ( Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 764.) Indeed, because injunctions "carry greater risks of censorship and discriminatory application than do general ordinances," the United States Supreme Court requires "a somewhat more stringent application of general First Amendment principles" to injunctions restricting speech. ( Id. at pp. 764-765.)

An injunction that regulates speech on the basis of its topic is termed a content-based regulation and is presumptively invalid. ( Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 828; R.A.V. v. St. Paul (1992) 505 U.S. 377, 382.) An injunction that regulates speech on the basis of the particular views or biases that the speaker expresses about a topic is termed a viewpoint regulation and is likewise presumptively invalid, because the United States Supreme Court regards viewpoint discrimination as "an egregious form of content discrimination." ( Rosenberger v. Rector and Visitors of Univ. of Va., supra, at p. 829.)

An injunction that regulates speech on the basis of its content or viewpoint is scrutinized more strictly than a content neutral injunction. ( Madsen v. Women's Health Center, Inc., supra, 512 U.S. 753, 762-763.) If an injunction is based on content or viewpoint, the proponent ordinarily must show both that the injunction is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." ( Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45; see Madsen v. Women's Health Center, Inc, supra, at pp. 763-764.)

The injunction at issue here is based on both content and viewpoint. It is based on content because it prohibits speech for its communicative impact — its potential to offend the person who hears it. ( Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 867-868 [ 117 S.Ct. 2329, 2342-2343]; Forsyth County v. Nationalist Movement (1992) 505 U.S. 123, 134; Texas v. Johnson (1989) 491 U.S. 397, 411-412.) It is based on viewpoint because it prohibits the utterance of "derogatory racial or ethnic epithets," words that convey and embody a particular bias. ( R.A.V. v. St. Paul, supra, 505 U.S. 377, 391-393 [state may not prohibit only those fighting words expressing a viewpoint of racial intolerance].)

The state may prohibit racial or ethnic discrimination in housing and employment. Indeed, it has a compelling interest in doing so. (See R.A.V. v. St. Paul, supra, 505 U.S. 377, 395; Walnut Creek Manor v. Fair Employment Housing Com. (1991) 54 Cal.3d 245, 273 [ 284 Cal.Rptr. 718, 814 P.2d 704] (dis. opn. of Kennard, J.).) Although the state may adopt various means to combat racial and ethnic bias in general, antidiscrimination measures collide with the First Amendment when they attempt to combat racial and ethnic bias by "silencing speech on the basis of its content" ( R.A.V. v. St. Paul, supra, 505 U.S. 377, 392) or by "handicap[ping] the expression of particular ideas" ( id. at p. 394). The proper test to determine the validity of the content- and viewpoint-based injunction at issue here is whether its restriction on speech is necessary to serve a compelling state interest and narrowly drawn to achieve that end. ( Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37, 45.)

The state has a compelling interest in eradicating invidious employment discrimination (see R.A.V. v. St. Paul, supra, 505 U.S. 377, 395), and the injunction here surely promotes that interest (see ibid.), but plaintiffs have not shown that the injunction here is necessary to serve that interest. An award of damages for proven employment discrimination is a presumptively adequate and content neutral alternative, particularly for a first time offender. So far as the record shows, this is the first case in which damages have been awarded against Lawrence or Avis for employment discrimination. Only one Avis employee, Lawrence, was found to have caused an abusive work environment by using racial or ethnic slurs, and he did so as to only four of the original seventeen plaintiffs. The harassment was confined to a limited time period and ceased after plaintiffs filed this lawsuit. Thus, there is no basis upon which to conclude that damages will not have the desired deterrent effect. (See Intern. Soc. for Krishna Consciousness v. Eaves (5th Cir. 1979) 601 F.2d 809, 833 [rejecting the view that a speech restraint may be based on the generalization that one who has violated a law once is likely to do so again].) The trial court's assertion that an injunction is necessary is entirely speculative.

Even assuming for the sake of argument that injunctive relief were necessary, the record does not demonstrate the necessity of an injunction restricting speech. The trial court found that Lawrence's harassment had consisted of both offensive touching and the use of racial and ethnic epithets. The jury's special verdicts do not specify whether the employment discrimination findings were based on the offensive touching, the epithets, or a combination of the two. The record contains no finding by the jury or by the trial court that the utterance of epithets alone created a hostile work environment for any Avis employee. Lawrence and Avis do not challenge the portion of the injunction prohibiting uninvited intentional touching. Nothing in the record shows that enforcement of this portion of the injunction, and the portion of the injunction concerning the non-speech activities of Avis supervisor Kathy Black, will not be effective to prevent a recurrence of the hostile environment employment discrimination.

Nor is the injunction narrowly drawn to prevent a recurrence of a hostile work environment for plaintiffs. For First Amendment purposes, a regulation is narrowly drawn "if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy." ( Frisby v. Schultz (1988) 487 U.S. 474, 485.) "A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil." ( Ibid.)

Here, the injunction prohibits Lawrence from addressing epithets to any Hispanic employee, not just the four plaintiffs (only one of whom still works for Avis) whom Lawrence was found to have harassed. This is not a class action, a criminal prosecution, or a civil enforcement action by government; it is a civil action by individual private plaintiffs. I am aware of no authority permitting a trial court, in a civil action by individual plaintiffs, to award equitable relief in favor of persons who are strangers to the proceeding.

Also, the injunction prohibits Lawrence not only from addressing racial and ethnic epithets to Hispanic employees, but also from using those epithets as descriptive of these employees. The latter prohibition, because it applies even to statements made outside the hearing and knowledge of any Hispanic employee, encompasses speech unlikely to contribute in any way to a hostile work environment for plaintiffs. Thus, the injunction is an invalid infringement of free speech rights because it prohibits expressive activity that is not the precisely targeted evil of employment discrimination against plaintiffs.

Even if the injunction were narrowed to prohibit Lawrence only from directing epithets at the workplace to the particular Avis employees he previously harassed, it would still prohibit more speech than necessary. As the Chief Justice concedes, "not every utterance of a racial slur in the workplace violates the FEHA." (Plur. opn., ante, at p. 8.) An isolated use of an epithet, however odious, does not produce a hostile work environment. To establish employment discrimination by verbal harassment, the employee must show that "the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' . . . that 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. (1993) 510 U.S. 17, 21 [enunciating this standard for hostile environment employment discrimination under title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e et seq.)]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [adopting same standard for claims under FEHA].) An injunction prohibiting every utterance of a racial or ethnic insult in the workplace, not just utterances that actually produce a hostile work environment, is not narrowly drawn to serve the state's compelling interest in eliminating employment discrimination.

"[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances." ( Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 23.) For this reason, I question whether any injunction prohibiting specifically identified speech, without regard to its frequency, its context, or its effect on any employee, could survive the strict scrutiny the First Amendment requires for injunctions restricting speech on the basis of content and viewpoint.

Also, as Justice Mosk points out in his dissent, a content-based injunction restricting workplace speech would appear necessarily and invariably to be an invalid prior restraint. "The term prior restraint is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' . . . [P]ermanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints." ( Alexander v. United States (1993) 509 U.S. 544, 550.) The injunction at issue here certainly fits this definition of a prior restraint.

The First Amendment "accords greater protection against prior restraints than it does against subsequent punishment for a particular speech." ( Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 589 (conc. opn. of Brennan, J.).) The particular disfavor for prior restraints is based on "a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable." ( Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 559, italics in original.) Although not invalid per se, prior restraints are "the most serious and the least tolerable infringement on First Amendment rights." ( Nebraska Press Assn. v. Stuart, supra, 427 U.S. 539, 559.)

A prior restraint is subject to a "heavy presumption against its constitutional validity." ( Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70.) Anyone seeking to defend a prior restraint "thus carries a heavy burden of showing justification for the imposition of such a restraint." ( Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419.) Although the United States Supreme Court has not stated precisely what this "heavy burden" entails, it apparently includes at least a showing that the prohibited speech is "overwhelmingly likely" to be subject to regulation without violating the First Amendment ( Intern. Soc. for Krishna Consciousness v. Eaves (5th Cir. 1979) 601 F.2d 809, 833) and that it will "surely result in direct, immediate, and irreparable damage" ( New York Times Co. v. United States (1971) 403 U.S. 713, 730 (conc. opn. of Stewart, J.); see also Tribe, American Constitutional Law (2d ed. 1988) § 12-36, pp. 1045-1051).

Because isolated remarks seldom, if ever, cause a hostile work environment, and because determining the existence of a hostile work environment requires an examination of all relevant circumstances, it is impossible to demonstrate in advance that any particular workplace speech will create a hostile work environment (and thus potentially be subject to regulation without violating the First Amendment), much less that it will produce direct, immediate, and irreparable injury. Accordingly, the conclusion seems inescapable that injunctions prohibiting any future offensive workplace speech on the basis of content and viewpoint are invariably and necessarily unconstitutional prior restraints on speech.

III

The Chief Justice's plurality opinion does not treat the injunction at issue here as a prior restraint, nor does it apply the strict test that the United States Supreme Court has mandated for content- and viewpoint-based injunctions. It suggests various reasons why a less rigorous test is appropriate, and plaintiffs and amici curiae offer other reasons. I consider these reasons in turn.

Preliminarily, I note that an otherwise content neutral statute or injunction may prohibit speech falling within certain narrowly defined categories — such as obscenity, defamation, and "fighting words" — without meeting any separate compelling interest test. (See Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572.) The "fighting words" category is quite narrow (see Gooding v. Wilson (1972) 405 U.S. 518), however, and it is conceded that the speech at issue here is outside this category. Nor is any contention advanced that the speech at issue here may be prohibited as obscene or defamatory. Also, for purposes of deciding what First Amendment test to apply, it makes no difference that a content-based injunction prohibits speech at only one location, here the workplace. (See Reno v. American Civil Liberties Union, supra, 521 U.S. 844, 880 [ 117 S.Ct. 2329, 2349] ["`one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place'"]; Consolidated Edison Co. v. Public Serv. Comm'n (1980) 447 U.S. 530, 541, fn. 10 ["we have consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternate means of expression"].)

Under what some commentators have termed the "captive audience doctrine," the United States Supreme Court in a few instances has acknowledged the legitimate interests of persons who would prefer to avoid exposure to unwelcome speech but are unable to do so. (See, e.g., Frisby v. Schultz, supra, 487 U.S. 474, 487; Lehman v. City of Shaker Heights (1974) 418 U.S. 298.) Plaintiffs here argue that because employees are generally unable to avoid exposure to the offensive workplace speech of coworkers and supervisors, a court should be permitted to enjoin all offensive discriminatory speech, regardless of its effect on any particular employee, at any workplace where hostile environment employment discrimination has been demonstrated.

This argument reads more into the captive audience doctrine than the decisions of the United States Supreme Court permit. Under those decisions, a court may impose a content-based restriction to protect unwilling listeners from offensive speech only in the "narrow circumstances" where "the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure" and "`substantial privacy interests are being invaded in an essentially intolerable manner.'" ( Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 209-210.) Even when listener "captivity" is demonstrated, a court may not prohibit all insulting, disturbing, or offensive speech, but only speech that invades a substantial interest in an intolerable manner. An employee surely has a substantial interest in a work environment that is not hostile or abusive, but this interest is invaded in an intolerable manner only when harassing speech actually produces a hostile or abusive environment. Because the injunction here prohibits even isolated use of racial and ethnic slurs having no demonstrable effect on any plaintiff, it cannot be saved by invoking the captive audience doctrine.

Moreover, in one important respect the work environment is different from other captive audience situations that the United States Supreme Court has considered: While it is true that during working hours an employee is not free to go elsewhere to avoid hearing a coworker's offensive speech, it is equally true that the coworker is not free to go elsewhere to express his or her views. Although the United States Supreme Court has upheld content neutral prohibitions on residential picketing (see Frisby v. Schultz, supra, 487 U.S. 474, 487 [upholding ordinance regulating residential picketing]; but see also Carey v. Brown (1980) 447 U.S. 455, 470-471 [striking down content-based residential picketing ordinance]), it has never applied the captive audience doctrine to, for example, a content-based regulation prohibiting homeowners from posting signs offensive to their neighbors, such as the ordinance at issue in R.A.V. v. St. Paul, supra, 505 U.S. 377. (See also City of Ladue v. Gilleo (1994) 512 U.S. 43 [holding that ordinance banning almost all residential signs violated First Amendment].) If the captive audience doctrine has any application to the work environment, it must be applied in a manner that acknowledges and accommodates the legitimate rights of both the captive speaker and the captive listener. (See Strauss, Redefining the Captive Audience Doctrine (1991) 19 Hastings Const.L.Q. 85, 116-119 [suggesting consideration of three factors: the extent of the listener's "captivity," the seriousness of the threatened harm to the unwilling listener, and the degree to which restrictions burden the speaker's legitimate First Amendment interests].) A blanket prohibition on offensive epithets, regardless of the effect on any listener, surely gives insufficient consideration to the legitimate speech interests of the captive speaker.

In a footnote containing its only reference to this dissent, the Chief Justice's plurality opinion cites two federal appellate decisions for the proposition "when a repeated course of conduct has been found to constitute a nuisance or unlawful employment practice, a court is authorized to enjoin future individual acts that are likely to continue or perpetuate the nuisance or unlawful practice." (Plur. opn., ante, at p. 31, fn. 9.) But neither of the cited decisions addresses any issue under the First Amendment. (See People v. Scheid (1997) 16 Cal.4th 1, 17 [an appellate opinion is not authority on issues not considered].) I agree that when free speech concerns are not implicated, courts have broad equitable powers to issue injunctions to halt proven patterns of illegal activity. For this reason, I do not question the portion of the injunction here prohibiting Lawrence from engaging in offensive touching, because this portion of the injunction does not restrict speech. But the portion of the injunction prohibiting Lawrence from using offensive epithets does restrict speech, and it does so on the basis of content and viewpoint. As I have explained, the First Amendment, as authoritatively construed by the United States Supreme Court, treats such injunctions as presumptively invalid and requires courts to subject them to an exacting form of scrutiny that this injunction cannot withstand.

Insofar as he deigns to consider the First Amendment at all, the Chief Justice may be understood to argue that once a court has fully and fairly determined that a person has engaged in speech that contributed to a hostile work environment for a particular employee, a court may, without violating the First Amendment, prohibit that person not only from causing the same harm to the same employee by the same speech, but also from engaging in any similar speech that might cause similar harm to any similar employee. The Chief Justice suggests that an injunction is not an invalid prior restraint if it is remedial in this sense.

Isolated remarks by individual justices of the United States Supreme Court suggest there may be some sort of "remedial injunction" exception to the general prohibition against prior restraints. (See, e.g., Madsen v. Women's Health Center, Inc., supra, 512 U.S. 753, 778-779 (conc. opn. of Souter, J.); but see also id. at p. 794, fn. 1 (conc. and dis. opn. of Scalia, J.) [questioning whether judicial abridgment of First Amendment rights may be imposed as a sanction for misconduct].) But the high court's decisions do not support the broad proposition that viewpoint-based remedial injunctions are exempt from strict First Amendment scrutiny simply because they are issued against a person who has once been found to have engaged in speech that produced or contributed to a hostile work environment.

The Chief Justice here seems to rely in particular on Pittsburgh Press Co. v. Human Rel. Comm'n (1973) 413 U.S. 376, in which the high court upheld an injunction prohibiting commercial speech proposing unlawful commercial transactions. A newspaper had segregated its "help wanted" classified advertisements into separate columns for men's jobs and women's jobs. The injunction prohibited this practice as violating a local antidiscrimination ordinance. Rejecting a claim that the injunction was an invalid prior restraint on speech, the court reasoned that the ordinance prohibiting segregation of employment advertisements on the basis of sex was itself a valid prohibition of sexual discrimination, that the injunction went into effect only after a full and final determination that the newspaper had violated the ordinance, and that the injunction did no more than prohibit the very conduct determined to be unlawful. ( Id. at pp. 389-390.) Because the injunction's prohibition extended only to commercial speech already determined to be unprotected by the First Amendment, and because this determination did not turn on the publication's actual effect on particular jobseekers, the court observed that "this is not a case in which the Court is asked to speculate as to the effect of publication." ( Id. at p. 390.)

Here, by contrast, the speech at issue is not commercial speech, and the determination of employment discrimination does turn on the effect of the prohibited speech on particular employees, because racial and ethnic slurs in the workplace cause employment discrimination only if they have the effect of producing a hostile work environment, which in turn depends upon, among other things, the subjective emotional impact of the speech on the employees claiming discrimination. Because a finding of hostile environment discrimination turns on the effect of particular speech, and because this court cannot know in advance what effect future speech will have, this court is asked to speculate as to the effect of the expression that the injunction prohibits.

To take a different example, if a newspaper has maliciously published a defamatory statement about a public figure, as determined by a jury after a full and fair trial, some (but not all) courts would permit issuance of an injunction prohibiting the newspaper from again publishing the very same defamatory statement. (See Kramer v. Thompson (3d Cir. 1991) 947 F.2d 666, 675-676 [discussing various appellate decisions on this point].) To my knowledge, however, no court has ever so much as suggested that in this situation a court could enjoin the newspaper from publishing other derogatory statements about the same public figure, on the theory that these statements might prove to be defamatory and their prohibition would serve a remedial purpose.

To take another example that the high court has specifically addressed, once a movie theater has shown a film that is obscene, as determined by a jury following a full and fair trial, a trial court may thereafter enjoin the theater from exhibiting that film ( Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 54-55), but it may not enjoin the theater from exhibiting other films based on a court's preliminary determinations that they might be obscene. ( Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 311.) Rather, a final adjudication of obscenity is required before a court may enjoin exhibition of a film.

Speech having only the potential to cause hostile environment employment discrimination deserves at least as much protection as speech that is potentially obscene or defamatory, two types of speech that are categorically proscribable under the First Amendment. An employer who has engaged in or permitted discriminatory verbal harassment that produced a hostile work environment, as determined by a jury following a full and fair trial, may not thereafter be enjoined from engaging in or permitting similar offensive speech on the theory that it might again produce a hostile work environment. Any injunction that restricts speech on the basis of viewpoint, even one issued to remedy past discrimination and to prevent its recurrence, must narrowly target the evil of employment discrimination and not prohibit more speech than necessary.

IV

Article I, section 2, of the California Constitution declares: "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." I agree with Justice Mosk that, for the reasons cogently stated in part II of his dissenting opinion, the injunction at issue here violates our state constitutional free speech guarantee, which is "more definitive and inclusive" than the federal provision. ( Wilson v. Superior Court (1975) 13 Cal.3d 652, 658.)

V

Employees expect and deserve effective protection against invidious discrimination at work. Federal and state statutes provide this protection. But when the alleged discrimination consists of verbal harassment by a coworker, the statutory right to equal employment opportunity comes into conflict with constitutional free speech guarantees. Employees do not surrender constitutional free speech rights when they go to work. "[T]o wholly exclude workplace speech from the realm of the First Amendment would immeasurably impoverish the freedom of expression in this society. For many people, there is no other time or place in their lives in which they can talk about public issues, personal problems, and spiritual concerns with individuals from diverse backgrounds and perspectives." (Estlund, The Architecture of the First Amendment and the Case of Workplace Harassment (1997) 72 Notre Dame L.Rev. 1361, 1375; see also Comment, Political Speech, Sexual Harassment, and a Captive Workforce (1995) 83 Cal. L.Rev. 637, 646 ["it is arguable that today more political speech occurs at the workplace than in the public square"].) And, as Justice Holmes reminds us, "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." ( Abrams v. United States (1919) 250 U.S. 616, 630 (dis. opn. of Holmes, J.).)

Our employment discrimination law attempts to resolve the conflict by permitting an employee to recover damages for discriminatory verbal harassment, but only if, viewed against the totality of the circumstances, the harassment is so severe or pervasive as to create a hostile or abusive work environment. Although some have questioned whether this standard sufficiently protects freedom of speech (see, e.g., Comment, Freedom of Speech and Workplace Harassment (1992) 39 U.C.L.A. L.Rev. 1791), the standard's validity is not at issue here. What is at issue is whether a trial court, after a finding of hostile environment employment discrimination, may upset the legislatively defined balance, tilting it decidedly to one side, by prohibiting future use of even isolated epithets without regard to their effect on any employee. Unlike the plurality, I would hold that an injunction so drawn violates the free speech guarantees of the state and federal Constitutions. For this reason, I dissent.

DISSENTING OPINION BY BROWN, J.

BROWN, J., dissenting.

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 [ 112 S.Ct. at p. 2547].) 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.