OSCAR AGUILAR et al., Plaintiffs and Respondents, v. AVIS RENT A CAR SYSTEM, INC., et al., Defendants and Appellants, 21 Cal. 4th 121

Opinion GEORGE, C. J. A jury found that defendants had engaged in employment discrimination, in part by permitting plaintiffs to be the target of racial epithets repeatedly spoken by a fellow employee. In addition to awarding damages, the trial court issued an injunction prohibiting the offending employee from using such epithets in the future. Defendants argue that such an injunction constitutes a prior restraint that violates their constitutional right to freedom of speech.

For the reasons that follow, we hold that a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment and therefore will constitute employment discrimination. I The present appeal is from a judgment awarding damages and injunctive relief.

Defendants have not provided a reporter’s transcript of the trial proceedings, and have elected to proceed by means of an appendix in lieu of a clerk’s transcript. We glean the following from this rather limited record. In a first amended complaint dated April 26, 1993, 17 Latino employees of Avis Rent A Car System, Inc., sued Avis and 10 named individuals, alleging causes of action for employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov.

Code, § 12900 et seq.), wrongful discharge in violation of public policy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The complaint alleged that plaintiffs were employed by Avis as “drivers,” at its San Francisco airport facility, to move Avis vehicles among parking lots and from one airport location to another. Defendant John Lawrence was “the service station manager at the SFO AVIS location and was authorized to direct and control the drivers.” The complaint alleged that Lawrence “verbally harassed [plaintiffs] constantly.

He routinely called only the Latino drivers ‘motherfuckers’ and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills.” (Italics in original.) Defendant Kathy Black was alleged to have conducted a discriminatory investigation into the suspected theft of a calculator from a rental vehicle, detaining and questioning only Latino employees. In the course of this inquiry, a police officer was summoned and plaintiffs were told that the Immigration and Naturalization Service would be called if they did not cooperate.

The calculator was found the following day, and Black apologized to plaintiffs. On October 27, 1994, the jury returned special verdicts, finding as follows: Plaintiffs Ramiro Hernandez, German Lazo, Oswaldo Ramirez, Carlos Reyes, and Mario Serrano were harassed or discriminated against by a supervisor, Black. Each of these plaintiffs was awarded damages in the amount of $15,000. Plaintiffs Pedro Mojica and Orlando Peraza were harassed or discriminated against by Black and Lawrence. Avis knew or should have known of Lawrence’s conduct with respect to these employees and took no action.

Mojica and Peraza each was awarded damages in the amount of $25,000. Plaintiff Marcos Recinos was harassed or discriminated against by Black and Lawrence, but Avis did not know, nor should it have known, about Lawrence’s conduct with respect to him. Recinos was awarded damages in the amount $25,000. Plaintiff Miguel Fonseca was harassed or discriminated against by Lawrence. Avis knew or should have known of Lawrence’s conduct with respect to Fonseca and took no action, but Fonseca did not suffer severe emotional distress, and the jury awarded no damages.

On December 15, 1994, a hearing was held to consider plaintiffs’ request for injunctive relief.

Defendants argued there was no evidence of ongoing harm, nor any danger of ongoing harm, and the court responded: “Well, there was evidence presented sufficient for the jury to find that ... as to four plaintiffs who were working there, all of whom had a common characteristic, that is, that they were Latinos or members of Hispanic Latino racial ancestry, Lawrence had engaged in acts of harassment so continual and severe as to alter the working conditions for those people there, because that was the statutory test; [^] Secondly, that Avis knew or should have known of that harassment.

It may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment. But I want to make sure that that chilling effect survives the end of this process.” The court further stated during the hearing: “Well, the court is making a finding of fact based on evidence observed during the trial, that based on the evidence showing harassment and discrimination to the extent already commented on by Mr.

Lawrence, there’s a substantial likelihood based on his actions that he will do so in the future unless restrained.” On February 14, 1995, the court entered judgment awarding damages against Avis in the amount of $15,000 each to Hernandez, Lazo, Ramirez, Reyes, and Serrano, and damages against Avis and Lawrence jointly and severally in the amount of $25,000 each to Mojica, Peraza, and Recinos.

The court also issued an injunction that stated as follows: “Defendant John Lawrence shall cease and desist from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc., and shall further refrain from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by Avis Rent A Car System, Inc., in California. [^] Defendant Avis Rent A Car System, Inc. shall cease and desist from allowing defendant John Lawrence to commit any of the acts described in [the above quoted paragraph], under circumstances in which it knew or should have known of such acts; and shall further not investigate or permit investigations regarding breaches of its employment rules or practices when such investigations are limited to subjects or targets who are Hispanic/Latino employees of said defendant, unless the circumstances are such that no employees other than Hispanic/Latinos are reasonably subjects or targets of such investigation(s).” The injunction further ordered Avis to post certain notices advising employees to report any instances of discriminatory or harassing conduct by Avis or its employees and to “publish a policy statement in English and Spanish delineating employee rights and manager responsibilities with regard to employee complaints of racial or national origin harassment or discrimination . . . .” Defendants appealed “from the mandatory and prohibitory injunction portion of the Judgment,” providing the Court of Appeal with the reporter’s transcript of the posttrial hearing at which the injunction was issued, but not providing the court with a reporter’s transcript of the trial proceedings.

Defendants further elected to prepare an appellants’ appendix in lieu of a clerk’s transcript.

The Court of Appeal concluded “that to the extent the injunction prohibits Lawrence from continuing to use racist epithets in the workplace it is constitutionally sound, but to the extent it reaches beyond the workplace it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly.” The Court of Appeal reversed the injunctive portion of the judgment and remanded the case to the trial court with directions to “redraft the injunction in a manner that . . . limits its scope to the workplace.” In response to defendants’ argument that the injunction’s prohibition of the use of “derogatory racial or ethnic epithets” was vague, the Court of Appeal further ordered the trial court to add “an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets such as those actually used in the workplace by Lawrence” in order to “more precisely warn Lawrence and Avis what is forbidden.” Plaintiffs have not challenged the Court of Appeal’s restriction of the terms of the injunction, but Avis and Lawrence sought review of that court’s decision, arguing that the injunction, even as limited by the Court of Appeal, constitutes an improper prior restraint of freedom of expression.

We granted review to address this question. II The FEHA declares “as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age.” (§ 12920.) “This court has declared that policy to be ‘fundamental.’ ” (Brown v.

Superior Court (1984) 37 Cal.3d 477, 485 [208 Cal.Rptr. 724, 691 P.2d 272].) “Employment discrimination ‘foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.’ (§ 12920.) The express purpose of the FEHA is ‘to provide effective remedies which will eliminate such discriminatory practices.’ (Ibid.) In addition, the Legislature has directed that the FEHA is to be construed ‘liberally’ so as to accomplish its purposes. (§ 12993.)” (Brown v.

Superior Court, supra, 37 Cal.3d at p. 486.) One form of employment discrimination is harassment on the basis of race or national origin.

Section 12940, subdivision (h)(1), states that it is unlawful “[f]or an employer ... or any other person, because of race . . . [or] national origin ... to harass an employee or applicant. Harassment of an employee or applicant by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” California Code of Regulations, title 2,

section 7287.6, subdivision (b)(1)(A), defines harassment to include “[v]erbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act.” Verbal harassment in the workplace also may constitute employment discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.; Title VII), the federal counterpart of the FEHA. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57 [106 S.Ct. 2399, 91 L.Ed.2d 49]; Beyda v.

City of Los Angeles (1998) 65 Cal.App.4th 511, 517 [76 Cal.Rptr.2d 547] [Title VII cases may be considered in interpreting the FEHA].) Explaining the potentially debilitating effects of this form of employment discrimination, the United States Supreme Court has observed: “A discriminatorily abusive work environment . . . can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22 [114 S.Ct. 367, 370-371, 126 L.Ed.2d 295]; Davis v.

Monsanto Chemical Co. (6th Cir. 1988) 858 F.2d 345, 349.) Of course, not every utterance of a racial slur in the workplace violates the FEHA or Title VII.

As the United States Supreme Court has recognized in the context of sexual harassment: “[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII. [Citations.] For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ [Citation.]” (Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, 67 [106 S.Ct. 2399, 2405.) The high court reaffirmed this standard in Harris v.

Forklift Systems, Inc., supra, 510 U.S. 17, 21-22 [114 S.Ct. 367, 370, 126 L.Ed.2d 295, 302]: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.

Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” Recently, the high court observed that it had “made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment . . . .” (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 [118 S.Ct. 2275, 2284, 141 L.Ed.2d 662, 677].) California courts have adopted the same standard in evaluating claims under the FEHA.

In rejecting an FEHA claim that alleged acts of sexual harassment directed toward other women had created a hostile work environment for the plaintiff, the Court of Appeal in Fisher v.

San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 [262 Cal.Rptr. 842] held that the harassment complained of must be “sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment . . . .” (Id. at p. 608.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Id. at pp. 609-610, fn. omitted.) “[HJarassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]” (Id. at p. 610.) In the present case, Avis and Lawrence do not contest the validity of that portion of the judgment awarding monetary damages against them.

They concede that the jury’s findings that they violated the FEHA are supported by substantial evidence and they do not claim that the damage award violates the First Amendment. For purposes of this case, therefore, it is established that Lawrence’s conduct created a hostile or abusive work environment for plaintiffs on the basis of race, and that Avis properly was held liable for knowingly failing to prevent this misconduct by Lawrence. (See Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 603-604 [40 Cal.Rptr.2d 350]; Page v.

Superior Court (1995) 31 Cal.App.4th 1206, 1210 [37 Cal.Rptr.2d 529].) IH Avis and Lawrence challenge only that portion of the judgment awarding injunctive relief. It is beyond question that, in general, both the Department of Fair Employment and Housing and courts enforcing the FEHA are empowered not only to redress past instances of employment discrimination, but to prevent a recurrence of such misconduct.

Section 12920 states that the purpose of the FEHA is “to provide effective remedies which will eliminate” employment discrimination.

Section 12920.5 adds: “In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and •redress the adverse effects of those practices on aggrieved persons.” Accordingly, if the Fair Employment and Housing Commission finds that an employer has engaged in an unlawful practice, it may order the employer “to cease and desist from the unlawful practice.” (§ 12970, subd. (a).) Further, the Commission may order “[affirmative or prospective relief to prevent the recurrence of the unlawful practice.” (§ 12970, subd. (a)(5).) Similarly, courts can, and often do, issue injunctions prohibiting the recurrence or continuation of employment discrimination.

We have held “that, in a civil action under the FEHA, all relief generally available in noncontractual actions . . . may be obtained.” (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221 [185 Cal.Rptr. 270, 649 P.2d 912].) This includes injunctive relief. (Snipes v.

City of Bakersfield (1983) 145 Cal.App.3d 861, 869-870 [193 Cal.Rptr. 760].) Avis and Lawrence argue initially that the injunction was unnecessary, because the record does not demonstrate that “Lawrence used words that are constitutionally prescribable.” As noted above, the jury determined that Lawrence’s conduct violated the FEHA, and defendants concede that this finding is supported by substantial evidence. The record before this court does not reveal the precise words used by Lawrence, because defendants elected not to provide a reporter’s transcript of the trial proceedings.

We reject defendants’ claim, therefore, because they failed to provide this court with a record adequate to evaluate this contention. (Ballard v.

Uribe (1986) 41 Cal.3d 564, 574-575 [224 Cal.Rptr. 664, 715 P.2d 624].) Defendants also argue that the injunction was unnecessary because the record does not demonstrate that Lawrence “engaged in ongoing conduct that arguably might justify injunctive relief.” The trial court found to the contrary, stating: “[T]he court is making a finding of fact based on evidence observed during the trial, that based on the evidence showing harassment and discrimination to the extent already commented on by Mr.

Lawrence, there’s a substantial likelihood based on his actions that he will do so in the future unless restrained.” In order to prevail on this claim, defendants must show that this finding is not supported by substantial evidence. But, as noted above, defendants elected not to provide a reporter’s transcript of the trial proceedings. Accordingly, they have no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court’s finding that injunctive relief was necessary to prevent a continuation of defendants’ unlawful conduct.

Defendants claim we must conclude that injunctive relief is unnecessary, because it appears from the trial court’s comments that Lawrence had ceased his unlawful conduct during the pendency of the present proceedings. The trial court rejected this contention, observing that “[i]t may be that the bringing of the action at the Department of Fair Employment and Housing and the action here had a chilling effect on the harassment,” and finding that “based on the evidence showing harassment and discrimination [by Mr.

Lawrence] to the extent already commented on . . . , there’s a substantial likelihood based on his actions that he will do so in the future unless restrained.” The trial court did not err in so ruling.

The mere fact that a defendant refrains from unlawful conduct during the pendency of a lawsuit does not necessarily preclude the trial court from issuing injunctive relief to prevent a posttrial continuation of the unlawful conduct. “[M]any courts have rejected arguments against injunctive relief where defendants changed their practices only in response to being sued.” (2 Lindemann, Employment Discrimination Law (3d ed. 1996) ch. 40, p. 1748, fn. omitted.) “Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, [citation], unless the employer proves it is unlikely to repeat the practice, [citations]. . . .

An employer that takes curative actions only after it has been sued fails to provide sufficient assurances that it will not repeat the violation to justify denying an injunction.” (E.E.O.C. v. Goodyear Aerospace Corp. (9th Cir. 1989) 813 F.2d 1539, 1544 17; EEOC v. Frank’s Nursery & Crafts, Inc. (6th Cir. 1999) 177 F.3d 448, 467 [“upon a finding of any intentional employment discrimination, a district court possesses broad discretion to craft an injunction that will ensure the employer’s compliance with the law”]; Dombeck v.

Milwaukee Valve Co. (7th Cir. 1994) 40 F.3d 230, 238 [injunction proper although harasser and victim had been reassigned to different work areas]; U.S. E.E.O.C. v. Gurnee Inn Corp. (7th Cir. 1990) 914 F.2d 815, 817 [injunction prohibiting future sexual harassment proper although the employment of the sole harasser had been terminated]; cf. Marin County Bd. of Realtors, Inc. v.

Palsson (1976) 16 Cal.3d 920, 929 [130 Cal.Rptr. 1, 549 P.2d 833] [“ ‘[T]he voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere volition of a party the challenged practices may be resumed.’ [Citation.]”].) IV Avis and Lawrence further claim that the injunction is invalid because it is a prior restraint that violates their rights to free speech guaranteed by the First Amendment to the federal Constitution, and

article I,

section 2, of the California Constitution. We first consider defendants’ claims under the federal Constitution. A. The First Amendment to the United States Constitution states: “Congress shall make no law . . . abridging the freedom of speech . . . .” This fundamental right to free speech applies to the states through the Fourteenth Amendment’s due process clause. (Gitlow v. New York (1925) 268 U.S. 652, 666 [45 S.Ct.625, 630, 69 L.Ed.2d 1138].) Although stated in broad terms, the right to free speech is not absolute. (Near v.

Minnesota (1931) 283 U.S. 697, 708 [51 S.Ct. 625, 628, 75 L.Ed. 1357] [“Liberty of speech and of the press is also not an absolute right, and the state may punish its abuse. Whitney v. California [(1927) 274 U.S. 357 [47 S.Ct. 641, 71 L.Ed. 1095]]; Stromberg v. California [(1931) 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed.2d 1117]].”].) Many crimes can consist solely of spoken words, such as soliciting a bribe (Pen. Code, § 653f), perjury (Pen. Code, § 118), or making a terrorist threat (Pen. Code, § 422).

As we stated in In re M.S. (1995) 10 Cal.4th 698, 710 [42 Cal.Rptr.2d 355, 896 P.2d 1365]: “[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, ‘ “communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs . . . .” ’ [Citations.]” (See also NAACP v.

Claiborne Hardware Co. (1982) 458 U.S. 886, 916 [102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215]; Drivers Union v. Meadowmoor Co. (1941) 312 U.S. 287, 292, 295 [61 S.Ct. 552, 554-556, 85 L.Ed. 836, 132 A.L.R. 1200]; Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark (1994) 1994 Sup. Ct. Rev. 1, 13.) Civil wrongs also may consist solely of spoken words, such as slander and intentional infliction of emotional distress.

A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 628 [104 S.Ct. 3244, 3255, 82 L.Ed.2d 462] [“[A]cts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent— wholly apart from the point of view such conduct may transmit.

Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection.”].) This reasoning applies equally when spoken words, either alone or in conjunction with conduct, amount to employment discrimination. As already noted, the United States Supreme Court has held that the use of racial epithets that is sufficiently severe or pervasive constitutes “employment discrimination” in violation of Title VII (Harris v.

Forklift Systems, Inc., supra, 510 U.S. 17; Meritor Savings Bank v. Vinson, supra, 477 U.S. 57), and these decisions are at least implicitly inconsistent with any suggestion that speech of this nature is constitutionally protected. Furthermore, in R.A.V. v. St.

Paul (1992) 505 U.S. 377, 389 [112 S.Ct. 2538, 2546, 120 L.Ed.2d 305], the high court made this point explicit in discussing certain circumstances in which spoken words are not constitutionally protected, stating: “[S]ince words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets) . . . speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. [Citations.] Thus, for example, sexually derogatory ‘fighting words,’ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, [citations].” (See also Wisconsin v.

Mitchell (1993) 508 U.S. 476, 487 [113 S.Ct. 2194, 2200, 124 L.Ed.2d 436].) Justice Werdegar’s concurring opinion asserts that we fail to “address . . . a critical preliminary question, that is, whether the First Amendment permits imposition of civil liability under FEHA for pure speech that creates a racially hostile or abusive work environment,” and asserts that this issue takes us “into uncharted First Amendment waters.” (Conc. opn. of Werdegar, J., post, at pp. 147-148.) To the contrary, as noted above, we conclude that it is clear from the high court’s decisions in Harris, Meritor, and R.A.V., that the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment.

Defendants do not argue otherwise. The sole issue in the present case is whether the First Amendment also permits the issuance of an injunction to prohibit the continuation of such discriminatory actions. It is not surprising that defendants concede that the First Amendment permits the imposition of civil liability for pure speech that violates the FEHA, because the high court’s opinions, discussed above, leave little room for doubt on this score. As noted above, in R.A.V. v. St.

Paul, supra, 505 U.S. 377, 389 [112 S.Ct. 2538, 2546], the high court demonstrated its point that some forms of pure speech are not constitutionally protected, by observing that words “may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.” One commentator observed: “When the majority and concurring opinions are viewed in conjunction, it appears that all nine Justices participating in R.A.V. assumed that the core Title VII prohibition against speech that creates a discriminatorily hostile work environment would pass constitutional muster.

Harris, coming less than two years after the decision in R.A.V., buttresses this impression.” (Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark, supra, 1994 Sup. Ct. Rev. 1, 12.) Like Professor Fallon, we do not find the message of R.A.V., Harris, and Meritor nearly as opaque as suggested in the concurring opinion.

The concurring opinion ultimately agrees that speech that violates Title VII by permeating the workplace with “ ‘discriminatory intimidation, ridicule, and insult,’ [citation], that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create[] an abusive work environment,’ [citation]” (Harris v.

Forklift Systems, Inc., supra, 510 U.S. 17, 21 [114 S.Ct. 367, 370]) is not protected by the First Amendment, but the concurring opinion reaches this conclusion primarily by weaving together “strands of analysis” from several areas of First Amendment jurisprudence. (Conc. opn. of Werdegar, J., post, at pp. 148, 154.) We find such efforts unnecessary in light of the rulings of the United States Supreme Court in Harris, supra, and Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, and the statement in R.A.V. v. St.

Paul, supra, 505 U.S. 377, that harassing speech that is sufficiently severe or pervasive to constitute employment discrimination is not constitutionally protected. Defendants contend that, although it is proper to punish a defendant after the fact for a violation of the FEHA based upon spoken words, the trial court’s injunction against the use of future epithets is an invalid prior restraint of speech. (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419 [91 S.Ct. 1575, 1577-1578, 29 L.Ed.2d 1]; Near v.

Minnesota, supra, 283 U.S. 697, 713 [51 S.Ct. 625, 630].) Under wellestablished law, however, the injunction at issue is not an invalid prior restraint, because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants from continuing their unlawful activity. In Kingsley Books, Inc. v.

Brown (1957) 354 U.S. 436, 437 [77 S.Ct. 1325, 1326, 1 L.Ed.2d 1469], the United States Supreme Court upheld a criminal provision authorizing a “ ‘limited injunctive remedy’ ” prohibiting “the sale and distribution of written and printed matter found after due trial to be obscene.” The defendants did not contest that the printed material at issue was obscene, but argued that issuance of an injunction “amounts to a prior censorship” in violation of the First Amendment. (Id. at p. 440 [77 S.Ct. at p. 1327].) The high court rejected this argument, quoting Near v.

Minnesota, supra, 283 U.S. 697, 716 [51 S.Ct. 625, 631], for the proposition that “ ‘the protection even as to previous restraint is not absolutely unlimited,’ ” and observing: “The phrase ‘prior restraint’ is not a self-wielding sword.

Nor can it serve as a talismanic test.” (354 U.S. at p. 441 [77 S.Ct. at p. 1328].) In upholding the statute, the court noted that the defendants “were enjoined from displaying for sale or distributing only the particular booklets theretofore published and adjudged to be obscene.” (Id. at p. 444 [77 S.Ct. at p. 1329].) The high court then distinguished as “glaringly different” (id. at p. 445 [77 S.Ct. at p. 1330]) the decision in Near v.

Minnesota, supra, 283 U.S. 697, in which the abatement as a public nuisance of a newspaper was found to be an invalid prior restraint, noting that the abatement in Near “enjoin[ed] the dissemination of future issues of a publication because its past issues had been found offensive,” which is “ ‘the essence of censorship,’ ” while the injunction in Kingsley Books “studiously withholds restraint upon matters not already published and not yet found to be offensive.” (354 U.S. at p. 445 [77 S.Ct. at p. 1330].) In Times Film Corp. v.

Chicago (1961) 365 U.S. 43, 44 [81 S.Ct. 391, 392, 5 L.Ed.2d 403], a film distributor challenged a municipal ordinance that required “submission of all motion pictures for examination prior to their public exhibition,” claiming this was an invalid prior restraint on expression. The film distributor argued that the state must permit the motion picture to be shown and only thereafter could punish any violation of law that occurred.

The high court disagreed and upheld the ordinance, stating that the distributor’s argument “is founded upon the claim of absolute privilege against prior restraint under the First Amendment—a claim without sanction in our cases.” (Id. at p. 49 [81 S.Ct. 394].) The decision in Freedman v. Maryland (1965) 380 U.S. 51 [85 S.Ct. 734, 13 L.Ed.2d 649] reaffirmed the rule announced in Times Film Corp. v.

Chicago, supra, 365 U.S. 43, that a requirement of submission of motion pictures in advance of exhibition does not necessarily constitute an invalid prior restraint, but clarified that such a requirement must include “procedural safeguards designed to obviate the dangers of a censorship system.” (Freedman v. Maryland, supra, 380 U.S. at p. 58 [85 S.Ct. 739].) One such safeguard is that before an injunction may issue prohibiting the exhibition of a motion picture, there must be a judicial determination that the film does not constitute protected expression.

The high court stated: “The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. [Citations.]” (Ibid.) In Paris Adult Theatre I v.

Slaton (1973) 413 U.S. 49, 55 [93 S.Ct. 2628, 2633-2634, 37 L.Ed.2d 446], the high court upheld a Georgia statute authorizing an injunction prohibiting the exhibition of obscene materials, stating: “Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected.” In Pittsburgh Press Co. v. Human Rel.

Comm’n, supra, 413 U.S. 376, the United States Supreme Court upheld an order prohibiting a newspaper from publishing advertisements in a manner that would constitute employment discrimination.

The city ordinance at issue in that case proscribed discrimination in employment in a manner similar to the FEHA and had been interpreted to forbid newspapers from carrying “help wanted” advertisements in gender-designated columns under captions such as “Male Help Wanted” and “Female Help Wanted.” Observing that the ordinance made sexual discrimination in employment illegal, the high court held that the First Amendment did not protect such illegal conduct, stating: “We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes.” (413 U.S. at p. 388 [93 S.Ct. at p. 2560].) The high court concluded: “Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.” (413 U.S. at p. 389 [93 S.Ct. at p. 2561].) The court in Pittsburgh Press Co. then addressed the argument that the order forbidding the newspaper from publishing the advertisements in gender-designated columns was a prohibited prior restraint on expression.

The high court, first noting that it never had held that all injunctions against newspapers were impermissible, stated: “The special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment. [^] The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. [Citations.] Moreover, the order is clear and sweeps no more broadly than necessary.

And because no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.” (413 U.S. at p. 390 [93 S.Ct. at p. 2561], fn. omitted; see also Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 764, fn. 2 [114 S.Ct. 2516, 2524, 129 L.Ed.2d 593, 607] [“Not all injunctions that may incidentally affect expression, however, are ‘prior restraints’ in the sense that the term was used in New York Times Co. [v. United States (1971) 403 U.S. 713 [91 S.Ct. 2140, 29 L.Ed.2d 822]], or Vance [v.

Universal Amusement Co. (1980) 445 U.S. 308 [100 S.Ct. 1156, 63 L.Ed.2d 413]]”].) The foregoing high court decisions recognize that once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited “prior restraint” of speech. (Kramer v.

Thompson (3d Cir. 1991) 947 F.2d 666, 675 [“The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected.”].) For the same reason, the injunction at issue in the present case does not constitute a prohibited prior restraint on expression, provided the order “is clear and sweeps no more broadly than necessary.” (Pitsburgh Press Co. v. Human Rel.

Comm’n, supra, 413 U.S. 376, 390 [93 S.Ct. 2553, 2561].) The injunction at issue is based upon a continuing course of repetitive speech that has been judicially determined to violate the FEHA. Thus, prohibiting Avis and Lawrence from continuing to violate the FEHA does not violate their First Amendment rights. A persuasive discussion is found in Auburn Police Union v. Carpenter (1st Cir. 1993) 8 F.3d 886, which upheld a Maine statute prohibiting persons from soliciting property for the benefit of a law enforcement officer, agency, or association. Violations of the statute could be enjoined and penalized civilly.

The court of appeals rejected the argument that an injunction against such solicitation necessarily would constitute an invalid prior restraint on expression: “A prior restraint is a government regulation that limits or conditions in advance the exercise of protected First Amendment activity. [Citation.] Although the classic form of prior restraint involves an administrative licensing scheme, [citation], a judicial injunction that prohibits speech prior to a determination that the speech is unprotected also constitutes a prior restraint. [Citation.] Any system of prior restraints of speech ‘comes to this Court bearing a heavy presumption against its constitutional validity.’ [Citation.] [H] . . . [H] The Supreme Court, however, ‘has never held that all injunctions are impermissible.’ [Citation.] ‘The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.’ [Citation.] An injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint.” (Id. at p. 903; Retail Credit Company v.

Russell (1975) 234 Ga. 765, 779 [218 S.E.2d 54, 62] [“ ‘The present order [an injunction prohibiting the defendant from continuing to report false credit information about the plaintiff] does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the court is asked to speculate as to the effect of publication’ ”]; Haseotes v. Cumberland Farms, Inc. (Bankr.

D.Mass. 1997) 216 B.R. 690, 695.) By parity of reasoning, the pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the First Amendment, and such unlawful conduct properly may be enjoined. (Cf. E.E.O.C. v. Beverage Canners, Inc. (11th Cir. 1990) 897 F.2d 1067, 1070 [upholding injunction directed to racially abusive language in workplace, without addressing free speech issues]; Robinson v.

Jacksonville Shipyards, Inc. (M.D.Fla.1991) 760 F.Supp. 1486, 1535 [holding that First Amendment does not bar injunctive relief against continuing course of conduct found to constitute sexual harassment, including verbal harassment and display of sexually explicit photographs: “[T]he pictures and verbal harassment are not protected speech because they act as discriminatory conduct in the form of a hostile work environment.”].) As the amicus curiae brief of the American Civil Liberties Union of Northern California suggests, the controlling authorities establish that “[s]peech may be enjoined where a fair judicial process has determined that a repetitive pattern of speech is unprotected.” B.

Defendants also argue that the injunction violates the California Constitution.

Article I,

section 2, subdivision (a), of the California Constitution states: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Avis and Lawrence rely heavily on a decision of this court, handed down more than a century ago, interpreting an earlier version of this provision. In Dailey v.

Superior Court (1896) 112 Cal. 94, 97 [44 P. 458], this court invalidated a superior court order prohibiting the performance or advertising of a play that was based upon the circumstances of a pending criminal case that was about to go to trial, unequivocally declaring: “We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an attempted infringement upon rights guaranteed to every citizen by

section 9,

article I, of the constitution of this state. That

section provides: ‘Every citizen may freely speak, write and publish his [or her] sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.’ The wording of this

section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible at the hands of the law for an abuse of that right. He shall have no censor over him to whom he must apply for permission to speak, write, or publish, but he shall be held accountable to the law for what he speaks, what he writes, and what he publishes.

It is patent that this right to speak, write, and publish, cannot be abused until it is exercised, and before it is exercised there can be no responsibility.” The above quoted language in Dailey cannot be interpreted as broadly as defendants suggest, to prohibit a court, under all circumstances, from enjoining “speech.” The circumstances in Dailey involved a true prior restraint in which the superior court had prohibited the production of a play prior to its first performance simply because the play was based upon the circumstances of a pending criminal case.

The court in Dailey was not faced with the question whether an injunction prohibiting the continuation of conduct that has been judicially determined to be unlawful constitutes a prior restraint. Dailey, therefore, does not support the position that the injunction in the present case constitutes an invalid prior restraint. (Ginns v.

Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689] [“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.”].) Recent decisions of this court demonstrate that we have not adopted the rule advocated by defendants, that any injunction impinging upon the right of free expression constitutes an invalid prior restraint. In Wilson v.

Superior Court (1975) 13 Cal.3d 652 [119 Cal.Rptr. 468, 532 P.2d 116], while we observed that our state constitutional guarantee of free speech and press is “more definitive and inclusive than the First Amendment” (id. at p. 658), we recognized at the same time that “an injunction restraining speech may issue in some circumstances to protect private rights [citation] or to prevent deceptive commercial practices [citation].” (Id. at p. 662.) In People ex rel. Busch v.

Projection Room Theatre (1976) 17 Cal.3d 42, 57 [130 Cal.Rptr. 328, 550 P.2d 600], we rejected the argument that enjoining the exhibition of obscene films or magazines would constitute an impermissible prior restraint, stating: “Thus, in the matters before us if the trial court finds the subject matter obscene under prevailing law an injunctive order may be fashioned that is ‘proper and suitable’ in each case.

It is entirely permissible from a constitutional standpoint to enjoin further exhibition of specific magazines or films which have been finally adjudged to be obscene following a full adversary hearing. (Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 54-55 [37 L.Ed.2d 446, 454-456].)” (Italics added.) In Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 [153 Cal.Rptr. 802, 592 P.2d 289], we affirmed an order of the Public Utilities Commission terminating a subscriber’s telephone service on the ground that the service was being used to violate the law.

At hearings before the commission, evidence was introduced establishing that the subscriber was operating a business offering outcall massage and nude modeling services. The commission found that the subscriber’s telephone service had been used to facilitate the violation of Penal Code

section 647, subdivision (b), which prohibits soliciting or engaging in

an act of prostitution. The subscriber argued that terminating his telephone service violated his right to free speech. We rejected this argument, quoting the high court’s decision in Pittsburgh Press Co. v. Human Rel. Comm’n, supra, 413 U.S. 376: “[Telephone communication which does ‘no more than propose a commercial transaction’ can be'. . . protected ‘commercial speech.’ By the same token, however, when such communication proposes, discusses, or is intended to encourage or facilitate a commercial transaction which is itself illegal, the principle established in the Pittsburgh Press case is applicable.

Thus: ‘Any First Amendment interest which might be served by [telephone communications concerning] an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on [telephone communication] is incidental to a valid limitation on economic activity.’ ” (23 Cal.3d at p. 657, italics in Goldin.) Most recently, in People ex rel. Gallo v.

Acuna (1997) 14 Cal.4th 1090 [60 Cal.Rptr.2d 277, 929 P.2d 596], our court, in upholding against a First Amendment challenge the validity of an injunction restraining a wide array of future activities of gang members, explained that in a variety of respects a specific injunction, issued against a particular party on the basis of a proven past course of conduct, poses less of a danger to free speech interests than a general statutory prohibition.

We noted: “As with any injunction, the preliminary decree here is addressed to identifiable parties and to specific circumstances; the enjoined acts are particularly described in the trial court’s order.

Unlike the pervasive ‘chill’ of an abstract statutory command that may broadly affect the conduct of an absent class and induce self-censorship, the decree here did not issue until after these defendants had had their day in court, a procedure that assures ‘ “a prompt and carefully circumscribed determination of the issue.” ’ [Citation.]” (14 Cal.4th at p. 1114, italics omitted.) Under the California Constitution, as under its federal counterpart, the injunction in the present case thus does not constitute a prohibited prior restraint of speech, because defendants simply were enjoined from continuing a course of repetitive speech that had been judicially determined to constitute unlawful harassment in violation of the FEHA.

V Defendants further claim that, even if some injunctive relief against future racial epithets is permissible, the order in this case is invalid because it is overly broad.

As noted above, one provision of the injunction prohibited defendant Lawrence from “using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis Rent A Car System, Inc. . . .” The Court of Appeal upheld this provision to the extent it prohibited Lawrence “from continuing to use racist epithets in the workplace,” but ruled that, to the extent the prohibition applied to conduct outside the workplace, “it improperly exceeds the scope of the FEHA violation sought to be prevented and must be modified accordingly.” In further response to defendants’ claim, the Court of Appeal additionally restricted the injunction by directing the trial court to add to the injunction “an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets, such as those actually used in the workplace by Lawrence” in order to “more precisely warn Lawrence and Avis what is forbidden.” Because neither plaintiffs nor defendants have sought review of those limitations of the scope of the injunction, their validity is not before us and we express no opinion on that matter.

Defendants assert that, even as modified by the Court of Appeal, the injunction is overly broad because it enjoins Lawrence from employing racially derogatory terms ‘.‘descriptive of’ Avis’s Hispanic employees, even outside the hearing of those employees. Defendants argue that the use of racial epithets outside the hearing of Hispanic employees does not contribute to a hostile work environment if the audience does not find the speech unwelcome and the subjects of the racial invective are unaware they are being maligned.

The Court of Appeal disagreed, stating: “Continual use of racist epithets poisons the atmosphere of the workplace, even when some of the invective is not directed at or even heard by the victims. If the Hispanic/Latino employees at Avis’s San Francisco airport location know that Lawrence is free to continue voicing his on-the-job racist epithets behind their backs, it will remain a hostile place at which to work.

Under the present circumstances, where there was direct racist invective, continued indirect invective would serve to maintain an abusive work environment, and thus both are properly enjoined.” The United States Supreme Court has held that an injunction that imposes a content-neutral restriction upon expression must “burden no more speech than necessary to serve a significant government interest. [Citations.]” (Madsen v. Women’s Health Center, Inc., supra, 512 U.S. 753, 765 [114 S.Ct. 2516, 2525, 129 L.Ed.2d 593, 608]; People ex rel. Gallo v.

Acuna, supra, 14 Cal.4th 1090, 1120.) The high court explained: “Our close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, ‘that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’ [Citations.]” (Madsen v.

Women’s Health Center, Inc., supra, 512 U.S. at p. 765 [114 S.Ct. 2516, 2525, 129 L.Ed.2d 593, 608].) Because defendants elected not to provide a transcript of the trial proceedings, we have no basis upon which to conclude that, in the particular circumstances of this case, it was unnecessary to prohibit the use of the racial epithets even outside the hearing of plaintiffs, in order to prevent a continuation of the hostile work environment.

It certainly is possible that the use of racial epithets even outside the hearing of plaintiffs would contribute to an atmosphere of racial hostility that would perpetuate the hostile work environment created by defendants. Nothing in the limited record before us suggests that the injunction was more burdensome than necessary to prevent future violations of the FEHA. The trial court found that John Lawrence’s use of racial epithets was sufficiently severe or pervasive to constitute employment discrimination.

The trial court further found that injunctive relief was necessary to prevent a continuation of the abusive work environment. Accordingly, the trial court enjoined Lawrence from “using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/ Latino employees of Avis Rent A Car System, Inc.” Because Lawrence’s past use of such epithets in the workplace had been judicially determined to violate the FEHA, prohibiting him from continuing this discriminatory activity does not constitute an invalid prior restraint of speech. VI The judgment of the Court of Appeal is affirmed.

Baxter, J., and Chin, J., concurred. All further statutory references are to the Government Code, unless otherwise specified. Avis and Lawrence move to augment the record on appeal with a document entitled “Jury Instruction No. 23” that states, in pertinent part, that “John Lawrence is not a supervisor of Avis.” Plaintiffs object on the ground, among others, that this motion is untimely. We deny the motion to augment the record, but observe that it does not appear from the special verdicts that the jury found that Lawrence was a “supervisor” of plaintiffs within the meaning of

section 12940, subdivision (h)(1). The question whether, and to what extent, the regulation of speech that constitutes racial or sexual harassment may violate the First Amendment has been the subject of scholarly debate. (Compare Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment (1991) 52 Ohio St.

LJ. 481 and Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment (1993) 68 Notre Dame L.Rev. 1003, with Comment, Freedom of Speech and Workplace Harassment (1992) 39 UCLA L.Rev. 1791 and Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight (1995) 47 Rutgers L.Rev. 461.) Because defendants have not challenged the finding that their past conduct amounted to unlawful employment discrimination in violation of the FEHA, we need not, and do not, address that broad issue here.

Relying upon the decision in R.A.V. v. St. Paul, supra, 505 U.S. 377, the Court of Appeal in the present case upheld the injunction because it was aimed at the “secondary effects” of Lawrence’s use of racial epithets. We do not agree that the “secondary effects” doctrine applies in the present case. In Boos v.

Barry (1988) 485 U.S. 312 [108 S.Ct. 1157, 99 L.Ed.2d 333], the high court held that a Washington, D.C., ordinance prohibiting the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into “public odium” or “public disrepute” was an impermissible content-based restriction of speech, not a permissible content-neutral regulation of conduct aimed only at the secondary effects of speech.

The court stated: “The emotive impact of speech on its audience is not a ‘secondary effect.’ ” (Id. at p. 321 [108 S.Ct. at p. 1163].) Similarly, in the present case, the effects of Lawrence’s use of racial epithets on plaintiffs is not a “secondary effect.” (Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark, supra, 1994 Sup. Ct.

Rev. 1, 17 [“Despite occasional suggestions to the contrary prohibitions against sexual harassment cannot be justified on the rationale that creation of a hostile environment is a prohibitable secondary effect.”]; (Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, supra, 47 Rutgers L.Rev. 461, 511, fn. 215.) The concurring opinion cites several law review articles for the proposition that “the question [whether the First Amendment permits imposition of civil liability for pure speech that creates a hostile work environment] is one of considerable debate among First Amendment scholars” (cone. opn. of Werdegar, J., post, at p. 148, fn. omitted), but the controversy reflected in the cited articles has a different focus.

Although there is considerable academic debate concerning the extent to which sexually and racially discriminatory speech may be regulated, consistent with the First Amendment, with a single exception every scholar cited by the concurring opinion agrees that, in some circumstances, pure speech that violates Title VII is not protected by the First Amendment.

Professor Sangree believes “that hostile environment law passes First Amendment scrutiny” and “concludes that while debate concerning the parameters of protected speech and unlawful discrimination can clarify why hostile environments are prohibitable, Title VII protections should not be curtailed.” (Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, supra, 47 Rutgers L.Rev. 461, 465, 479.) Professor Strauss discusses at length the extent to which “sexist speech” in the workplace is protected by the First Amendment, but has no difficulty concluding that speech that violates Title VII is not protected: “Once the plaintiff alleges a cause of action under Title VII, and demonstrates a discriminatory intent or effect, the employer cannot successfully defend on first amendment grounds.” (Strauss, Sexist Speech in the Workplace (1990) 25 Harv.

C.R.-C.L.

L.Rev. 1, 43.) Professor Volokh concludes that only the prohibition of “undirected” speech that contributes to the creation of a hostile work environment would offend the First Amendment: “Liability could be imposed not for any speech that creates a hostile work environment, but only for speech that the speaker knows is offensive, that is directed at an employee because of her race, sex, religion, or national origin, and creates (together with whatever other nonspeech conduct might be present) a hostile work environment.” (Comment, Freedom of Speech and Workplace Harassment, supra, 39 UCLA L.Rev.' 1791, 1846, fn. omitted.) Professor Fallon states: “After Harris ... it is virtually inconceivable that the Supreme Court might hold that the First Amendment forbids the imposition of Title VII liability for a broad category of sexually harassing speech.

Some trimming of the cause of action remains possible, but it is highly unlikely that workplace expressions of gender-based hostility and communications of explicitly sexual messages will receive categorical protection.” (Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark, supra, 1994 Sup. Ct.

Rev. 1, 9.) Professor Gerard, although arguing that the federal guidelines implementing Title VII’s prohibition of sexual harassment are unconstitutionally overbroad, states: “Various forms of pure speech are also unprotected; the sexual solicitation, the false and defamatory statement of fact, and the display of obscene graphics.

These are some of the worst abuses and can be eliminated without hindrance.” (Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment, supra, 68 Notre Dame L.Rev. 1003, 1034.) Professor Gerard also questions whether “profane and vulgar words” could be prohibited. (Id. at p. 1035.) Only Professor Browne argues that the First Amendment prohibits all violations of Title VII based primarily on speech. (Browne, Title VII as Censorship; Hostile-Environment Harassment and the First Amendment, supra, 52 Ohio St.

L.J. 481.) As explained above, in this case we have no occasion to address the issue on which these commentators are divided, because defendants have not provided a record that discloses the precise nature or extent of the racial epithets and insults that were found by the jury to have created a racially abusive working environment, and because defendants do not contend that the past racial epithets and insults, found by the jury, comprise constitutionally, protected speech for which no damage award may be imposed.

None of the cited law review articles specifically address the much narrower issue presented by this case, namely whether, once it has been judicially determined that a racially abusive working environment has been created by pervasive racial epithets and insults, a court may enjoin the offending employee from uttering similar racial epithets in the future that will perpetuate the discriminatory abusive environment.

Justice Brown’s dissenting opinion quotes numerous decisions that eloquently explicate the unquestioned proposition that the First Amendment protects the expression of ideas that are reviled as well as those that are revered. But just as it is perfectly clear that the First Amendment does not protect an individual’s right to commit treason (or, for that matter, securities fraud) through the use of the spoken word, it is equally clear that the First Amendment does not protect an employer’s or employee’s right to engage in employment discrimination through the use of the spoken word.

An employer that posted a “Whites Only” sign outside its workplace could not claim that the First Amendment right of free expression shielded its “speech” from the reach of a law prohibiting racial discrimination in employment (cf. Pittsburgh Press Co. v. Human Rel.

Comm’n (1973) 413 U.S. 376 [93 S.Ct. 2553, 37 L.Ed.2d 669] [“male help wanted” and “female help wanted” designations constitute unprotected employment discrimination]), and an employer that utters or tolerates racial epithets or insults in the workplace that are so severe or pervasive as to alter the working conditions, of targeted minority employees similarly may not take refuge in the claim that the racial harassment, because spoken, may not constitutionally be treated as employment discrimination. In Central Hudson Gas & Elec. v. Public Serv.

Comm’n (1980) 447 U.S. 557, 566 [100 S.Ct. 2343, 2351, 65 L.Ed.2d 341], the high court stated: “For commercial speech to come within [the First Amendment], it at least must concern lawful activity and not be misleading.” (See also Rubin v. Coors Brewing Co. (1995) 514 U.S. 476 [115 S.Ct. 1585, 1589, 131 L.Ed.2d 532, 538-539].) In a variety of contexts, courts have upheld injunctions prohibiting the continuation of a course of expressive conduct that violates a specific statutory prohibition. (Vendo Co. v.

Lektro-Vend Corp. (1997) 433 U.S. 623, 635-636, fn. 6 [97 S.Ct. 2881, 2891, 53 L.Ed.2d 1009] [“nothing . . . prevents a federal court . . . [from] enjoin[ing] the commencement of additional state-court proceedings if it concludes from the course and outcome of the first one that such proceedings would constitute a violation of the antitrust laws”]; San Antonio Hosp. v. So. Cal. Council of Carpenters (9th Cir. 1997) 125 F.3d 1230 [upholding preliminary injunction against union to prohibit continuing display near hospital entrance of fraudulent banner reading “This Medical Facility Is Full of Rats”]; Lothschuetz v.

Carpenter (6th Cir. 1990) 898 F.2d 1200, 1208 [directing entry of a “narrow and limited injunction to prohibit [the defendant] from continuing and reiterating the same libelous and defamatory charges”]; O’Brien v. University Community Tenants Union, Inc. (1975) 42 Ohio St.2d 242 [71 Ohio Op.2d 223, 327 N.E.2d 753] [“Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper.” (Italics in original.)]; Advanced Training Sys. v. Caswell Equip.

Co. (Minn. 1984) 352 N.W.2d 1, 11 [42 A.L.R.4th 299] [“We therefore hold that the injunction below, limited as it is to material found either libelous or disparaging after a full jury trial, is not unconstitutional and may stand.”]; Federal Trade Comm’n v. Saja (D.Ariz., Oct. 7, 1997, No.

Civ-97-0666-PHX-SMM) 1997 WL 703399 [upholding injunction prohibiting continuation of fraudulent solicitations of charitable donations].) Justice Kennard’s dissenting opinion suggests that the injunction is necessarily overbroad because it is not limited to the type of repeated or pervasive racial epithets that must initially be shown in order to establish the creation of an abusive or hostile work environment.

The dissent cites no authority, however, to support the proposition that once it has been established that the existence of sufficiently severe or pervasive racial insults or epithets in a workplace already has created an abusive work environment, a court may not enjoin the offending party from perpetuating the abusive environment by continuing to use such racial insults or epithets in the future.

As a general matter, when a repeated course of conduct has been found to constitute a nuisance or unlawful employment practice, a court is authorized to enjoin future individual acts that are likely to continue or perpetuate the nuisance or unlawful practice. In E.E.O.C. v. Wilson Metal Casket Co. (6th Cir. 1994) 24 F.3d 836, the court upheld an injunction— following a finding of sexual harassment—-that prohibited the defendant from leaving the premises with any female employee.

Although this conduct, standing alone, did not constitute sexual harassment, it properly could be enjoined, because it was sufficiently “related to the proven unlawful conduct.” (Id. at p. 842.) The court of appeals explained: “In the instant case, a distinct pattern of sexual harassment emerged. Wilson either waited until female employees were alone with him in isolated portions of the facilities or transferred them to isolated areas. Once they were isolated, he grabbed them and fondled their breasts and buttocks.

With Barbara Ellis, in addition to unwanted fondling, Wilson forced her to engage in oral sex and sexual intercourse. Wilson also sexually propositioned female employees and asked them to accompany him off the company’s premises. Based on this pattern of behavior, the injunction appropriately enjoins conduct which allowed sexual harassment to occur.” (Ibid.-, accord, Kentucky Fried Chicken v. Diversified Packaging (5th Cir. 1977) 549 F.2d 368, 390 [“An injunction can be therapeutic as well as protective.

In fashioning relief against a party who has transgressed the governing legal standards, a court of equity is free to proscribe activities that, standing alone, would have been unassailable.”].) Thus, although a single use of a racial epithet, standing alone, would not create a hostile work environment, once the jury had determined that a pervasive pattern of such use had created a hostile work environment, the trial court in this case did not abuse its discretion in concluding that each additional instance would perpetuate the hostile environment and should be enjoined.