Judicial nominee criticized for pro-First Amendment dissent

Monday, November 17, 2003

It is unusual for 14 law professors — Democrats, Republicans, Independents — to write the Senate Judiciary Committee in support of a presidential nominee to the District of Columbia Circuit Court of Appeals who is attacked by the committee’s Democrats as far too conservative. The target is Janice Rogers Brown, a daughter of Southern sharecroppers, who became a justice of the California Supreme Court. Confirmed by a party-line 10-9 vote in the committee, she faces a Democratic filibuster on the floor of the Senate. Why not let the entire Senate decide?

Years ago, the singularly inventive Miles Davis, bellicosely reactive to any hint of Jim Crow, was criticized by other black jazz musicians for hiring a white pianist, Bill Evans. “I don’t care if he’s purple with green dots, so long as he can play,” Mr. Davis told me. So, too, Justice Brown’s race is not relevant to her nomination.

I have read many of Justice Brown’s opinions, and I judge her solely as a judge. I have strongly disagreed with some of her opinions, strongly agreed with others. But in supporting her nomination, the 14 law professors, who represent the political spectrum, wrote to the Senate Judiciary Committee:

“Justice Brown’s clarity of thought has often captured the mainstream of California’s jurisprudence. Perhaps nothing is more revealing of her mainstream views than the fact that in 2002, Justice Brown was relied upon by her colleagues to write the majority opinion more often than any other member of the Court.” (Many conservatives regard the 9th Circuit, which includes Brown’s court, as far too liberal.)

In a future column, I’ll discuss Justice Brown’s opinions, which illuminate her independence, and, as the law professors have said, her “thorough appraisal of legal argumentation.” But I will first show the mindless partisanship that so blinded Democrats on the Senate Judiciary Committee and their allies (including editorial writers at The New York Times) on part of Justice Brown’s actual judicial record.

In a lead Oct. 25 editorial, “Out of the Mainstream Again,” The New York Times cited as one of her “extreme positions” Justice Brown’s dissent in a case where “her court ordered a rental car company to stop its supervisor from calling Hispanic employees by racial epithets.” Also attacking Justice Brown for her dissent in that case, Aguilar vs. Avis Rent A Car Systems, were Sen. Edward Kennedy and the Congressional Black Caucus Lawyers Committee for Civil Rights. Have they read the full record of the case?

The California Supreme Court’s majority opinion in that case was one of the most destructive to the core of the First Amendment in American judicial history. Among the other justices joining Justice Brown in that dissent was the legendary civil libertarian, the conscience of the 9th Circuit for many years, Justice Stanley Mosk.

What the majority did was to enjoin the Avis supervisor who used racial epithets “from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis.” This included, as Justice Mosk underlined, “any future use of a list of offensive words (to be compiled by the trial judge) even outside the presence of the Latino employees, and even if welcomed or overtly permitted.”

Justice Mosk emphasized that “punishment for — and suppression of — speech are two different things.” Moreover, the trial judge was indeed ordered by the majority to put together a list of words that would be forever forbidden in that workplace. I emphasize this because it turns the First Amendment upside down.

Declaring all of this flatly unconstitutional, Justice Mosk made the elementary point that even if someone has previously discriminated against employees through slurs and epithets, setting up a list of prejudicial words that can never be used thoroughly undercuts the First Amendment.

This, he wrote, is “because the offensive content and effect of using any one, or more, of a list of verboten words cannot be determined in advance.” A list alone provides no context for the words in the future, or when the forbidden words might or might not actually be offensive.

In her dissent, Justice Brown wrote that she “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 … . 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.”

Also in her dissent, Justice Brown said of the list of condemned words that “if applied generally, the plurality’s rule would create the exception that swallowed the First Amendment.”

During her hearing before the Senate Judiciary Committee, Justice Brown was criticized for her dissent in that case, but I bet that none of the Democratic senators — even their bombastic leader in approving judicial selection, Sen. Charles Schumer of New York — had any real knowledge as to what the Aguilar case was about. I do agree with them about criticizing her support of the Lochner Supreme Court decision (1905) that placed property rights over human rights. During the Lochner era (from the early 1900s through the 1930s), the Supreme Court struck down worker-safety laws, stating that they infringed on businesses’ rights.

As for Justice Brown being out of the mainstream, in the election to confirm her appointment to the Supreme Court of California, she won 76% of the vote — and California is hardly a right-wing state. When will the entire Senate realize the embarrassment it has become by demanding that certain nominees conform to certain ideologies of the Democrats on the Senate Judiciary Committee?

Published with the permission of Nat Hentoff. Originally posted on The Washington Times Web site on Nov. 17. Hentoff is a contributing editor to Editor & Publisher and also writes for The Village Voice in New York.

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