L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 53, August 15, 1999
Overruling Freedom of Speech
by Vin Suprynowicz
Special to The Libertarian Enterprise
In 1993, 17 employees of Mexican or Latin American origin sued Avis
Rent-a-Car in California, contending company managers were creating
an "abusive work environment" at the firm's San Francisco
International Airport facility.
The employees contended they were being subjected to "verbal racial
harassment." Managers called them "derogatory names and continually
demeaned them on the basis of their race, national origin and lack of
English language skills," the plaintiffs asserted.
A San Francisco jury awarded eight of the workers $135,000 in damages
based on a manager's repeated use of racially tinged obscenities and
ethnic slurs deriding Hispanics. Moreover, Superior Court Judge
Carlos Bea ordered the manager to stop using such language and
ordered Avis not to permit it in the future.
The car rental company appealed Judge Bea's order, arguing that such
an injunction amounted to unconstitutional prior restraint on free
But demonstrating how today's "politically correct" liberal orthodoxy
can trump the former principles even of those traditionally known as
defenders of the Bill of Rights -- "in an odd twist on its 79-year
tradition of championing freedom of expression," in the words of the
Los Angeles Times -- the American Civil Liberties Union of Northern
California chose to weigh in on the side of the Hispanic workers. In
a 1997 amicus brief, the ACLU supported "limits on the unrestrained
speech of bigots in the workplace, particularly when they are in
positions of authority on the job."
On Aug. 2, the ACLU got its way, as a deeply divided California
Supreme Court ruled that judges do not violate First Amendment rights
by prohibiting, in advance, the use of racial slurs on the job.
Thus does the government take a further step toward eliminating any
privacy of contract or behavior in the workplace.
Both the U.S. and California constitutions ban "prior restraint." But
the order upheld by the California Supreme Court Monday "constitutes
just such a prior restraint," wrote Justice Stanley Mosk in a
stirring dissent. "It impermissibly restricts speech based on the
mere assumption that these words will invariably create a hostile and
abusive work environment amounting to employment discrimination."
Eugene Volokh, law professor at UCLA, warns that under such a ruling,
media outlets could now face similar prior restraints: "After this
case, it seems much more plausible for someone to sue a newspaper
asking for an injunction barring publication of something he
considers libelous," Prof. Volokh says.
Thought you had a right to pen a letter to the editor, objecting to a
government plan to place a halfway house for convicted child
molesters in your cul-de-sac? Not for long, especially if the federal
government objects to some of the uncomplimentary terms you might
want to use to describe your new "neighbors."
Yet Michelle Alexander, director of something called the "racial
justice project" for the ACLU of Northern California, Monday
applauded what she called an "appropriate and modest effort" to
protect workers from discrimination.
Even though it supersedes the First Amendment?
Of course it's boorish to insult someone's ethnic heritage. But here
we see a clear example of the current strategy to denigrate and erode
the core rights to secure which (as Mr. Jefferson's Declaration
reminds us) "governments are instituted among men" -- rights like
freedom of speech.
The tactic is simple: Erect a new "right," invented out of thin air,
like the "right" to be well-fed, or to receive free medical care, or
to live without fear that your neighbor might own a gun or consume a
consciousness-altering drug without your permission -- even the
"right" simply not to be called nasty names.
Place this new "right" in competition with actual rights, like the
right to teach your religion to your children without interference,
the right to be safe in your home or car from warrantless search and
seizure, or simply the right to free speech without some government
nanny poised in readiness to wash your mouth with soap should you
violate her list of naughty words.
Then, have a bunch of liberal windbag jurists agonize over how to
strike a proper "balance" between the real and the new, fake, made-up
Presto: It no longer matters that "Congress shall make no law
abridging the freedom of speech."
We'll just let the courts do it.
Vin Suprynowicz, assistant editorial page editor of the Las Vegas
Review-Journal, is editor of the new book,
Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998
available at $21.95 plus
$3 shipping through Mountain Media, P.O. Box 271122, Las Vegas, Nev.
89127. The 500-page trade paperback may also be ordered via web site
or at 1-800-244-2224.
[Evidence that the media-induced "culture of fear" is working -- ed.]
ABC News Poll 8/11/99
Violence in America is:
Worse than ever: 62.4%
The same as it ever was: 26.2%
Not as bad as it used to be: 11.3%
Total votes: 8,053
"According to the Federal Bureau of Investigation's Uniform Crime
"The crime index rate fell for the 6th straight year in 1997, and is
down almost 17% from the rate of 1991.
"The FBI's Uniform Crime Reports Program (UCR) collects information
from local law enforcement agencies about crimes reported to police.
The UCR crime index includes seven offenses; homicide, forcible rape,
robbery, aggravated assault, burglary, larceny-theft, and motor
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