We keep being told by the Democrats (who are carrying water for a host of liberal special interests) that Justice Janice Rogers Brown of the California Supreme Court is an extremist. IÂ’ve written about that before, but would like to share a little more based on another column IÂ’ve encountered. It seems that one of the problems with Brown is that she is capable of making common sense judgments.

The author, David Reinhard, offers three of the cases cited against her as evidence of the specious nature of the attacks on the justice. They are Aguilar v. Avis Rent A Car, People ex. rel. Gallo v. Acuna, and Kasky v. Nike.

In the Avis case, Justice Brown rejected the notion of a court imposing prior restraint on the use of words by all employees in every context. As a rule, that is not permitted under the First Amendment, and so, consistent with a civil libertarian view of the First Amendment, she dissented from a decision upholding such prior restraint. But she did not do this out of love for the individuals who had engaged in racist speech in the workplace.

"Today, this court holds that an idea that happens to offend someone in the workplace is 'not constitutionally protected' . . ." she wrote. "Why? Because it creates a "hostile . . . work environment" . . . in violation of the Fair Employment and Housing Act (FEHA) . . . he court has recognized the FEHA exception to the First Amendment."
Now, it's possible to reject her view, but to say she's blind to discrimination or indifferent to its remediation ignores all she wrote. She called the speech "offensive and abhorrent" and favored a "middle ground" that "preserves both the freedom of the speaker and the equal dignity of the audience." Workers can sue for damages from bosses who tolerate such speech.

Think about it. Can a mere statute create an exception to free speech rights? The answer is obvious. On the other hand, it can impose a duty on the employer to stop racially abusive speech. Justice Brown offered an approach that did the least damage to the Constitution – and for that she is excoriated as an enemy of the Constitution.

On the other hand, in the Gallo case Justice Brown was unwilling to allow the First Amendment to be used as a shield for actual criminal activity. A violent street gang had made a neighborhood in Rocksprings, California unlivable. Residents were subjected to street crime, drug dealing and gunfire, among other ills. The city sought to do something about the problem, getting an injunction banning the offending gang members from the neighborhood – an injunction that was upheld by the California Supreme Court. Writing FOR THE MAJORITY, Justice Brown dismissed the First Amendment claims of the gang-bangers to continue their illegal activities in the neighborhood. She noted that their actions were antithetical to the notion of peaceable assembly.

"To hold that the liberty of the peaceful, industrious residents of Rocksprings must be forfeited to preserve the illusion of freedom for those whose ill conduct is deleterious to the community as a whole is to ignore half the political promise of the Constitution and the whole of its sense."

The Nike case is particularly interesting. Justice Brown sided with Nike in a case involving whether errors in a press release could be grounds for a lawsuit against the company by an activist group. The case eventually reached the US Supreme Court, where it was dismissed on a technicality. But while some argue that Justice BrownÂ’s opinion was out of step with Supreme Court jurisprudence on commercial speech, it is interesting to note that the justices themselves did not think so.

The high court dismissed the case on a technicality and an out-of-court settlement has since been reached, but Justice John Paul Stevens' majority opinion for Ruth Bader Ginsburg and David Souter argued that the case raised important constitutional questions. And Stephen Breyer, joining Sandra Day O'Connor in dissent, wrote that if the case was decided on its merits, Brown's view would likely prevail.

Which two justices definitively agreed with her? That would be liberal Justice Stephen Breyer and swing-voter Sandra Day O’Connor – hardly folks the Left wants to label as out of the mainstream. And notice which other justices were at least open to her position – Stevens, Souter and Ginsburg, who constitute with (with Breyer) the remainder of the Court’s liberal wing! If she is outside the mainstream on this case, I hope that Harry Reid, Ted Kennedy and Charles Schumer will have the integrity to introduce articles of impeachment against those five justices so that we can get some mainstream folks to take their places.

I guess the best way to put it is to say that the arguments against Janice Rogers Brown are hogwash – no insult to hogs intended.

Posted by: Greg at 11:59 AM | No Comments | Add Comment
Post contains 835 words, total size 5 kb.

Hide Comments | Add Comment