Multimedia company hopes to weigh in on free-speech case

Friday, April 17, 1998

ApolloMedia, a San Francisco-based multimedia company, filed a request this week with the California Supreme Court to submit a friend-of-the-court brief in what the company calls “a First Amendment case being observed nationwide as a harbinger of speech in the American workplace.”

The case of Aguilar v. Avis Rent-A-Car System, Inc. showcases the difficulties involved in preventing workplace harassment while preserving the right of free speech.
It began when 17 Hispanic/Latino employees sued Avis for employment discrimination under a state law known as the Fair Employment and Housing Act because of racist epithets allegedly uttered by an Avis manager.

Twelve employees' claims went before a jury, which ruled in favor of nine of the employees. The prevailing plaintiffs sought an injunction requiring the manager and other Avis employees to “cease and desist from all harassment or discrimination of employees whose national origin is from Latin America.”

The injunction applied to both off-the-job and on-the-job harassing speech, according to the trial judge.

On appeal, Avis argued that the injunction against harassing speech violated First Amendment free-speech rights. In May 1996, the California Court of Appeals ruled that while the trial court could issue an injunction prohibiting certain racist epithets at the workplace, it could not constitutionally limit off-the-job speech.

The appeals court ordered the trial court to redraft an injunction that solely prohibited workplace speech and to “add an exemplary list of prohibited derogatory racial or ethnic epithets used in the workplace” by the manager.

The court of appeals determined that the injunction did not violate the First Amendment because the law was not directed at the content of the expression, but rather at the secondary effect of employment discrimination.

The appeals court wrote that “the injunction … is not a prior restraint on freedom of expression, but lawfully precludes employment discrimination as a secondary effect of severe or persistent racist speech.”

One judge vigorously dissented, accusing the majority of “overzealous political correctness.” The judge wrote: “The politically correct camel now will have its nose under the First Amendment tent that has long sheltered our citizens from such censorship.”

Avis appealed to the California Supreme Court, contending the injunction against workplace speech went too far for First Amendment purposes.

The California Supreme Court accepted the case but has yet to set a date for oral argument.

Clinton Fein, president of ApolloMedia, says that “in the wake of the issues raised in the Paula Jones sexual harassment suit and the emergence of the Internet as an increasingly fundamental business tool, it is imperative that we weigh speech issues in the workplace with careful consideration and reasoned analysis.”

Fein said that “the Aguilar decision, if allowed to stand, will continue to establish a huge chilling effect on speech.

“The government or a court should not be able to provide a list of words that has no association with context or association. The entire theoretical underpinning of the Court of Appeals decision was wrong. In fact, the premise of the secondary-effects doctrine applied in this case is so fundamentally flawed in this context that it's ridiculous.”

Fein's company runs a Web site,, which features speech that is often designed to provoke and disrupt. “If this decision stands, can an employee be accused of workplace harassment if they read and discuss our Web site at the workplace?” he asks.

“We've reached a point in our society where nobody knows what speech is appropriate and what speech is not,” he said.

Eugene Volokh, a UCLA law professor who has written extensively on the relationship of workplace harassment laws and free-speech rights, agrees that the case is important. “While this case involves racial slurs, people need to realize that harassment law goes far beyond racial slurs to cover political statements, art, sexually themed jokes and other material,” he said.

Joel Kelly, a Los Angeles attorney who represents Avis, said: “Left unchecked, the Court of Appeal's erroneous 'secondary effects' analysis could well be applied to proscribe a wide variety of protected expression in the media, and in schools, universities and other organizations outside the workplace that have heretofore escaped the pen of the censor.”