Justice Thomas: a lone caution over speech codes

Monday, October 8, 2007

Robert M. O'Neil

This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.

Early signs and portents
For most of his first decade on the Supreme Court, Justice Clarence Thomas’ views on the regulation of racially and otherwise offensive speech seemed to differ little from those of his colleagues among the more conservative justices. He joined without comment in the Court’s unanimous ruling against “hate speech” laws in R.A.V. v. City of St. Paul (1992), and the following term was part of an equally solid consensus to sustain “hate crime” or penalty-enhancement procedures against criminal acts in Wisconsin v. Mitchell (1993).

There was, however, one early and possibly portentous sign that this area might prove more complex for him than for his colleagues. In 1992, Justice Thomas was the lone dissenter in Dawson v. Delaware. There, the Court held that the First Amendment barred the introduction into the penalty phase of a criminal case evidence of the defendant’s membership in a racist prison gang, where such affiliation attested only to an “abstract belief” and failed to impugn the defendant’s character.

For Thomas, however, proof of gang membership seemed pertinent to the determination of “character.” Hence, its use in sentencing was entirely consistent with the First Amendment since the prosecution had not targeted “abstract beliefs.” In his dissent, Thomas also chided his colleagues for importing a double standard into the sentencing process, since juries remained free to consider some protected expressive activities but not others, without clear delineation.

Avis Rent A Car System v. Aguilar
The critical test for Justice Thomas would come half a decade later, and again he would speak only for himself. In Aguilar v. Avis Rent A Car System, Inc. (1998), a sharply divided California Supreme Court sustained an injunction that barred a San Francisco airport rental-car lot supervisor, named Lawrence, from persistent use of racially and ethnically derogatory language, pursuant to a fair-employment law. The primary target of Lawrence’s venom was a burgeoning Latino workforce on the Avis lot, though he had been heard to utter a few choice epithets about other minorities as well. The trial court’s order had originally curbed Lawrence’s offensive rants far beyond the workplace — in bars or restaurants and theoretically even at home. While the scope of the decree had been substantially narrowed when the case came before the state’s high court, its reach still went far beyond the airport’s rental-car lot.

Nonetheless, the California Supreme Court majority found such an injunction consistent not only with the statute, but also with free-speech principles because a jury had determined that the supervisor’s speech was not constitutionally protected. That action was the more perplexing because the actual enumeration of specific words the supervisor might not utter awaited final trial-court prescription after the appellate process had run its course — meaning that even at this relatively late stage no one knew just what language would eventually prove unacceptable.

When Avis and Lawrence petitioned for certiorari, only Justice Thomas deemed the case worthy of review. His dissent from the denial expressed several deep concerns about the validity of such a decree. First in order was the problem of prior restraint; Thomas argued with some force that such an injunction against oral utterance clashed with the Court’s prior-restraint jurisprudence no less clearly than would a gag against a publisher or broadcaster. Even if “some types of speech in the workplace” could be curbed, he insisted, “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.” Indeed, the dissent noted that the offending supervisor apparently had engaged in no conduct or expression covered by the decree since 1992 — further supporting the justice’s misgivings about the rationale for injunctive relief.

A second and closely related concern for Thomas was the breadth of the injunction, even after its scope had been substantially narrowed to avoid potential reach into bars, taverns, theaters and living rooms. Its coverage seemed excessively broad and its key terms imprecise in several troubling respects. For one, he cautioned, “the injunction prohibits even a single utterance of a prohibited word” even though the fair-employment statute targeted only a “workplace [so] permeated with discriminatory intimidation, ridicule and insult … as to create an abusive working environment.” Moreover, despite the impetus for the lawsuit that spawned the decree, the actual order “applies without regard to whether the utterance is directed at, or within the earshot of … any Latino employee and contains no exception for speech that might contribute to reasoned debate.”

Thomas’ final constitutional concern was with the fully First Amendment-protected nature of the enjoined expression. After all, Lawrence’s offending language had not been consigned to any of the suspect categories that would have denied it protection. Similarly, it could not be dismissed as “low-value speech.” Moreover, since the statutory ban was clearly content-based, its application to pure speech (even if racially offensive) would appear to contravene the Court’s unanimous ruling in R.A.V. v. St. Paul, and especially the opinion by Justice Antonin Scalia in that case that Thomas had readily joined. The point was that the statutory ban disfavored speech based on “race, religious creed, color” and cognate criteria, while saying nothing about “political affiliation, union membership or other traits.” Such selectivity should “render [the decree] invalid under our current jurisprudence,” Thomas argued.

Despite the conviction implied by such language, the Thomas dissent did not take a categorical view, but recognized that harassment in the workplace might warrant less favorable treatment than other protected expression. Two situations might invite different treatment — the speech of public employees, and harassing expression aimed at a captive audience. Presumably the policies reflected in the California fair-employment and similar statutes surely deserved some deference. Yet it seemed unlikely to Thomas that injunctive relief would ever be allowed in either of these exceptional situations, and even less would such a decree ordinarily pass muster when collective offense or insult was the worst that the suspect speech threatened to bring into the workplace.

Before signing off, Justice Thomas expressed puzzlement why none of his colleagues shared his desire to review a major state court ruling that seemed so disdainful of Supreme Court precedent on prior restraint, content and viewpoint neutrality, and the need for precision in regulating protected expression. His explanation was eminently logical: “My colleagues are perhaps dissuaded from granting certiorari by the paucity of lower court decisions addressing the First Amendment implications of workplace harassment law.”

“Paucity” was, in fact, a drastic understatement. At the time, there was but a single federal district court ruling on point; a group of female Florida shipyard workers had sued their employer claiming they were victims of a “hostile workplace” because the route from their lockers to their work stations forced them to pass the lockers of male co-workers, replete with pin-up photos. The district judge conceded the novelty of the issue — harassment or workplace hostility based solely on verbal or pictorial affront — and shared Thomas’ puzzlement at the infrequency of litigation.

If one were to place the Aguilar case in a slightly broader context, it would have seemed much less lonely. By the time this issue reached the Supreme Court, no fewer than eight federal district courts and several federal appeals panels had struck down campus speech codes, either on First Amendment or due-process grounds or both. No such efforts to curb or purify campus expression had survived in more than a decade, despite valiant efforts by university attorneys and legal scholars to craft valid bans on racist, sexist, homophobic and anti-Semitic utterances. Amazingly, the Supreme Court has shown no interest in reviewing such cases — perhaps in part because of the consistency of lower court condemnation of such regulatory efforts — and Justice Thomas’ Aguilar dissent remains the only suggestion to the contrary from the bench.

Indeed, one of the speech-code cases offers an arresting irony. While the Aguilar-Lawrence dispute was unfolding, a nearby California Superior Court judge had been asked to rule on the validity of Stanford University’s campus speech code (Corry v. Stanford, 1995). Drafted carefully by Prof. Thomas Grey and other knowledgeable members of the Stanford Law faculty, this code sought to restrain potentially harmful and demeaning language derogatory of race, religion, nationality or other human qualities. Despite its laudable goals and careful crafting, the Stanford code eventually suffered the same fate as had its public-university counterparts; the state court found unacceptably broad and imprecise its ban on “stigmatizing” insults, and on racial or ethnic slurs that would not have met the Supreme Court’s “fighting words” standard. Thus, language that would soon be banned by court order at the San Francisco airport’s rental-car lot could no longer be curbed on a private university campus a half hour down the Peninsula.

The irony reaches an even deeper level. The Stanford ruling relied heavily on California’s recently enacted Leonard Law, a unique statute that barred private nonsectarian colleges and universities from regulating student speech to a greater degree than California’s public campuses could constitutionality curb the speech of their students. Conversely, the Aguilar decree had comparably clear statutory roots in California’s fair-employment law, which seemed not merely to sanction but almost to compel legal protection for minorities in the workplace.

While perfect consistency is seldom expected, even in Sacramento, there does seem a perversity in the sharply differential treatment of two analogous situations. Justice Thomas alone perceived the paradox — or at least he alone was sufficiently concerned to convey his discomfort through a published dissent. His is likely to remain a rather lonely voice in this area for some time.

Robert M. O’Neil is the director of the Thomas Jefferson Center for the Protection of Free Expression. He is an emeritus professor of law at the University of Virginia Law School. O’Neil was president of the University of Virginia from 1985 to 1990. He is the author of The First Amendment and Civil Liability (2001), Free Speech in the College Community (1997) and the forthcoming Academic Freedom in the Wired Age (Harvard University Press). In the interest of full disclosure: The Jefferson Center (per a petition filed by Joshua Wheeler) submitted an amicus brief in support of Avis/Lawrence in the California Supreme Court.

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