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The Bizarre Legal Philosophy of Justice Janice Rogers Brown
First Amendment Protection for On-the-Job Racism?
by MITCHELL ZIMMERMAN

You’ve just started your new job and you’re eager to fit into the workplace and make a good impression on everyone. You make a friendly comment to the person who works next to you, but she responds: "Don’t bother, yid, I don’t make friends with Jew Christ-killers." You’re shocked, but you don’t say anything to anyone. But that’s only the beginning. When you return from lunch, the worker on the other side of you says, "Good afternoon, kike, did you have a nice ham sandwich?" They laugh at how uncomfortable you are – actually, your hands are shaking – and whenever they need to talk to you in connection with the job, they call you "kike," "yid" or "Jew girl."

Soon they are making jokes about the Holocaust: When one of them comes back from the restroom, she asks the other, "Can we ask the company to order some of that soap they made out of Jews in Auschwitz?" "Nah," the other responds, "they stopped making Jew soap because they ran out of Jews."

You complain to your boss but she says, "Nothing I can do about it. They have the right to free speech under the First Amendment."

"But," you reply, "it’s impossible for me to work here if people attack me this way because I’m Jewish."

"Well, if you can’t stand it, you can quit."

You’re a nervous wreck when you get home. But after a week you decide you’re not going to quit. You don’t think this is what free speech is about, and you’re going to sue for employment discrimination. You are going to ask a court to order these employees not to attack you at work with racial or religious epithets that make it impossible for you to do your job.

Will the First Amendment bar your lawsuit?

Definitely not. Virtually every court that has considered the matter has concluded that racist speech can create a hostile, abusive and discriminatory work environment, and that when it does so, a court can stop it. No court in recent decades has held that the First Amendment gives people the right to use speech to harass fellow workers on racial or religious grounds at work.

Just as a court can order a company to take down a "Whites Only" sign outside its employment office, even though this is "speech," so judges have consistently held that other words can constitute unlawful racial discrimination, and that when they do, the courts must step in and call a halt to such discrimination.

That is the established view under American law, supported by years of precedent. But it is not the view of Janice Rogers Brown, President Bush’s nominee to the D.C. Circuit U.S. Court of Appeals. Brown, a member of the California Supreme Court, is one of 12 judicial nominees previously rejected due to their extremist positions, whose nominations were recently exhumed by Bush. The Senate Judiciary Committee has now begun its reconsideration of these individuals.

As a California Supreme Court justice, Brown dissented from a decision barring just the kind of speech discussed above. The plaintiffs in Aguilar v. Avis Rent A Car, 21 Cal.4th 121, were Hispanic workers who sought protection from racist epithets and abuse in the workplace. It was undisputed that the Avis manager had employed racial slurs and engaged in racist harassment so continual and severe as to create a hostile and discriminatory environment for the Hispanic workers. The only issue before the California Supreme Court was whether they were entitled to a court order that the manager could not subject them to racist invective at work in the future.

Contrary to the majority of the California Supreme Court – and to virtually every federal court that has considered such issues since the U.S. Supreme Court’s decisions upholding injunctions against harassing speech that creates a hostile work environment – Justice Brown voted to leave the workers unprotected. Issuing an injunction, in her unusual view, would amount to censoring and suppressing "disfavored ideas from the popular discourse." Never mind that nothing stopped the supervisor from making racist speeches anywhere outside the workplace. And never mind that racist diatribes are the kind of "discourse" calculated to drive ethnic or racial minorities from the workplace.

The views of President Bush’s nominee are not only contrary to common sense; they contradict a long line of U.S. Supreme Court and lower court rulings that have never supported a right to abuse workers with racist language on free speech grounds.

Revealingly, free speech concerns received different treatment by Justice Brown in Intel v. Hamdi, 30 Cal.4th 1342, where Brown’s dissent asserted that the corporation had a First Amendment "right not to listen." Hamdi was a 2003 case involving the intersection of property rights, free speech and the hoary tort of "trespass to chattel." Used in bygone eras to address such wrongs as having your cow chased by mischievous persons, trespass to chattel has been reborn in the Internet era as a possible source of relief against persons who access a Web site for unauthorized purposes.

Hamdi was a former Intel employee; on six occasions he dispatched e-mails to thousands of Intel workers criticizing the company’s employment practices. Intel objected to the contents of the messages and demanded that Hamdi cease sending e-mail to its employees at their Intel addresses. When he refused, Intel sued for trespass to chattel, arguing that it was harmed because its employees were distracted by the messages.

The California Supreme Court denied Intel’s claim. The majority held that Hamdi’s use of the open Intel e-mail system for its intended use, e-mail communication, resulted in no harm to Intel’s system and did not cause the kind of "damage" required for trespass to chattel. Since, moreover, Intel’s real concern was the e-mails’ content, the lead opinion in Hamdi warned that enjoining Hamdi’s communications might impair First Amendment interests.

Not so, however, according to Justice Brown’s dissenting view. Intel’s property rights in its unaffected computer system were paramount, and indeed reinforced, in Brown’s view, by a First Amendment "right not to listen" – notwithstanding that the corporation was not itself the audience for Hamdi’s speech, and that Hamdi removed from his e-mail list anyone who objected to his e-mails.

Curiously, though Justice Brown was vociferous in asserting the unqualified right of the corporation not to listen to Hamdi’s speech, she somehow neglected to notice this important constitutional right in the case of the Avis employees who had been subjected to racist epithets in the workplace. Intel had a far-reaching constitutional right not to listen. But Hispanic employees assailed with personal, racist invective in the workplace, invective that actually created a hostile work environment, apparently had no right not to listen. Indeed, any effort to protect those workers represented "censorship" in Justice Brown’s view, and the availability of injunctive relief against such workplace harassment meant "the Legislature is now free to prohibit the expression of ideas it dislikes."

In another dissent consistent with Brown’s hostility to anti-bias plaintiffs, in 2000, Brown reached back to a Civil War era federal banking law in order to assert that California was barred from granting relief to a bank branch manager for employment discrimination – on the theory that the 1864 federal act pre-empted California’s Fair Employment and Housing Act. (Peatros v. Bank of America, 22 Cal.4th 147.) The federal enactment originally gave bank directors complete discretion to fire officers, based on the ever-present risk (at that time) that banks could be destroyed by a "run on the bank," if depositors lost confidence in their bankers’ integrity and raced to withdraw their savings before it was too late.

In asserting that the 136-year-old federal banking law pre-empted the state antidiscrimination law, the anachronistic Justice Brown ignored the fact that subsequent federal antidiscrimination enactments had (as many courts had recognized) already amended the old law in a way that precluded any inconsistency with anti-discrimination law. In her final departure from reality, Justice Brown asserted that the original rationale for unfettered corporate power to fire bank employees was just as compelling in the 21st century as it had been in the 19th, notwithstanding the fact that the New Deal’s deposit insurance program had essentially ended the phenomenon of the run on the bank.

Justice Brown’s refusal to notice that New Deal legislation (among other developments since the middle of the 19th century) had undermined the basis of her argument was not entirely surprising because Brown believes that the New Deal was part of what she terms "the reign of socialism" and that Americans have been living under "collectivism" since the New Deal. Indeed, in an April 2000 speech to the Federalist Society, Justice Brown paired "the Revolutions of 1917 and 1937." 1917, of course, is the date of the Russian Revolution. "The latter date," Justice Brown explained "marks the triumph of our own socialist revolution."

What happened in 1937 that, to Justice Brown, was comparable to that the Bolshevik Revolution? After decades in which the Supreme Court invalidated social welfare measures, regulatory laws and New Deal enactments, two Supreme Court justices switched sides. Thereafter, a new majority of the high court permitted legislative majorities to address pressing social and economic problems notwithstanding possible effects on the supposed rights of property owners. It’s all been downhill since then. In the degraded, collectivist society we now inhabit as a result, according to Brown, "senior citizens blithely cannibalize their grandchildren" by seeking more government benefits, "most of us no longer find slavery abhorrent" but "embrace it," and our democracy has been "transformed into a Kleptocracy – a license to steal, a warrant for oppression."

Just what were the New Deal enactments that Justice Brown reviles as "collectivism," giving rise to these horrors? – Social Security, unemployment insurance, wage and hour and child labor laws, pure food and drug regulation, bank deposit insurance, the right to form unions, welfare benefits for the handicapped, regulation of financial institutions and stock markets, and, of course, taxation. These measures formed the foundation for a social contract that endured for generations in America, but is now under attack by the right, in which corporate supremacy was essentially unchallenged, in exchange for limited consideration of the needs of society as a whole, reasonable living standards for most Americans and minimal protections for the most desperate and needy.

Justice Brown’s bizarre view that this social contract constitutes "collectivism" is much more than a curiosity because her appointment to the important D.C. Circuit (and possibly thereafter to the U.S. Supreme Court) would give her the power to try to reverse these "socialist" triumphs.

Brown certainly means to try. She has advised that conservative judges need not be concerned with the "activist" label and urges judges to be "audacious enough to invoke higher law," by which she means a judge-imposed vision of so-called natural law that protects property from the will of the majority.

Brown’s openly expressed nostalgia for the Lochner era, in which judges imposed their laissez-faire economic philosophy and thwarted democratic decision making, is more than idle theorizing. The largely Republican judiciary has already deployed what amounts to a new Lochnerism, imposing an aggressive and baseless theory of federalism and the takings clause to strike down national and state regulatory efforts, at the same time that they curtail individual liberties in service of the national security state.

The Republican judges’ war on democracy has only begun, but one is reminded of Iran, in which the powers of freely elected leaders and an emerging democracy have been nullified by unelected religious leaders. If the federal judiciary comes to be dominated by the likes of Janice Rogers Brown, it may turn out to matter little who wins control of the legislative and executive branches in future elections. President Bush’s ultra-conservative judicial ayatollahs will be in a position to guide and chastise the unruly majorities who fail to understand the need to elevate the interests of property in the name of the higher law.

MITCHELL ZIMMERMAN, a former SNCC organizer and co-author of Dr. Spock on Vietnam, is a partner at a high-tech firm in Mountain View, California and focuses on intellectual property. He can be reached at m@mitchellzimmerman.com.

This article first appeared in March 18, 2005 issue of The Recorder.