ACLU-NC staff attorney Margaret Crosby wrote in the brief, "In most settings, the right to speak one’s mind is a core right of a free society. However, the Constitution permits state and federal governments to place some limits on the unrestrained speech of bigots in the workplace, particularly when they are in positions of authority on the job."

The case arises from a 1993 suit in which 17 Latino Avis employees in the company’s San Francisco International office charged that Avis managers created a hostile and abusive work environment.

The plaintiffs claim that Lawrence habitually subjected them to racial slurs and to unwanted physical contact such as "popping" them on the back. After a full evidentiary hearing, the trial court found that Lawrence would continue such behavior in the absence of a court order. In addition to the injunction against future verbal harassment, the court awarded the plaintiffs damages.

Apparently unwilling to discipline Lawrence, Avis has appealed only the injunction, arguing that the use of racial epithets in the workplace is constitutionally protected speech.

ACLU-NC attorney Crosby emphasized in the brief that in work situations, employees are unable to respond freely to a supervisors’ derogatory remarks without risking their livelihoods, and that unlike people on a public street, employees may not walk away from racial insults.

"On a soapbox, on a public street, an individual in a free society may express racially demeaning views. The government may not ban expression simply because most people find it offensive or even outrageous. However, Avis’ categorical assertion that racist speech is protected expression overlooks the second part to the constitutional inquiry: the context of the speech. This case is not Hyde Park corner. Here, a manager hurled racial slurs at his subordinates on the job," Crosby wrote.

The Court of Appeal, in a divided opinion upheld the trial court’s injunction. However, the court reasoned that racial epithets could be barred in order to prevent the "secondary effects" of creating a hostile working environment.

Crosby disagreed with the application of the "secondary effects" doctrine to the Aguilar case. The doctrine applies to cases involving the regulation of adult businesses, allowing such censorship not because of the impact of sexually explicit material on viewers, but because the establishment create a host of other nuisances, such as prostitution, in their neighborhoods.

Crosby wrote, "The secondary effects doctrine has no application to this case. Here, the injunction focuses directly on the content of speech, racial slurs, and their effect on the Latino workers. The emotive impact of speech on its audience is a primary effect, and to the degree that the government suppresses speech because of its effect on a listener it must justify its action by establishing that the speech is unprotected."

The ACLU-NC brief argues that an injunction barring the supervisor from continuing to hurl racist epithets at his subordinates is permissible under the unusual circumstances of this case, in which the court has conducted a full trial to determine that the epithets violate anti-discrimination laws and the supervisor would continue spewing racist invective.

In Pittsburgh Press Company v. Pittsburg Commission of Human Relations, the United States Supreme Court upheld an order issued under local anti-discrimination law restraining a newspaper from publishing sex-segregated employment advertisements, ruling that the First Amendment does not prevent the government from regulating behavior that obstructs equal employment opportunities of racial minorities and and women simply because speech is also involved.