This case presents the collision of two very basic values protected by the United States Constitution. The first is to live one’s life free of racial discrimination. (U.S. Const., Amend. XIV.) The second is to speak one’s mind free of government censorship. (U.S. Const., Amend. I.) The trial court balanced these two bedrock constitutional principles to conclude defendant John Lawrence validly could be enjoined from engaging in a form of speech a jury found was in violation of the Fair Employment and Housing Act. (Gov. Code, § 12900 et seq. (hereafter FEHA).) A divided Court of Appeal affirmed the trial court judgment, but remanded the case to the trial court with directions to narrow the terms of the injunction by limiting it to the workplace and to provide an exemplary list of prohibited words.
To the extent the plurality opinion affirms the judgment of the Court of Appeal, and with my understanding of the purpose and context of the “exemplary list” of words (see post, at p. 169, fn. 9), I concur.1 I write separately because the plurality opinion does not address what I believe to be 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. By declining to address this *148question, the plurality opinion fails to acknowledge that we are with this case sailing into uncharted First Amendment waters. No decision by the United States Supreme Court has, as yet, declared that the First Amendment permits restrictions on speech creating a hostile work environment; indeed, the question is one of considerable debate among First Amendment scholars.2 (Volokh, How Harassment Law Restricts Free Speech (1995) 47 Rutgers L.Rev. 563; Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight (1995) 47 Rutgers L.Rev. 461 (Sangree, No Collision in Sight); Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark (1994) 1994 Sup. Ct. Rev. 1 (Fallon, Sexual Harassment); Gerard, The First Amendment in a Hostile Environment: A Primer on Free Speech and Sexual Harassment (1993) 68 Notre Dame L.Rev. 1003; Comment, Freedom of Speech and Workplace Harassment (1992) 39 UCLA L.Rev. 1791 (Volokh, Workplace Harassment); Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment (1991) 52 Ohio St. LJ. 481 (Browne, Title VII as Censorship); Strauss, Sexist Speech in the Workplace (1990) 25 Harv. C.R.-C.L. L.Rev. 1.) Accordingly, a serious question arises whether or not the injunction in this case constitutes an impermissible prior restraint on defendant John Lawrence’s speech.
As I explain, despite the absence of any direct United States Supreme Court authority finding speech creating a hostile work environment falls outside the protection of the First Amendment, existing high court decisions provide strands of analysis that, woven together, produce a coherent theory that explains why the injunction in this case does not violate defendant Lawrence’s First Amendment rights.
I
At the outset, I note the appellate record in this case is woefully inadequate. Defendants proceeded in this appeal by relying on an appellants’ appendix in lieu of a clerk’s transcript. This is a permissible choice under the *149rules governing appellate procedure (see Cal. Rules of Court, rule 5.1), but, as a consequence of that choice, the record does not reveal what defendant Lawrence said that the jury found created a hostile work environment in violation of FEHA. The record also does not reveal how often he made the offending utterances or in what context. Defendants, of course, as the appellants in this case, bear the burden of providing a record on appeal that is adequate to adjudicate their claims. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532, 1535 [254 Cal.Rptr. 492]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [243 Cal.Rptr. 298]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, pp. 562-564.) If the record furnished is insufficient to establish the merits of an appellant’s legal position, it is the appellant who bears the risk of uncertainty caused by the lacuna. (See, e.g., plur. opn., ante, at p. 132 [rejecting claims for failure to provide an adequate record]; Null v. City of Los Angeles, supra, at p. 1536.)
Even if defendants took this risk willingly, for an appellate court to adjudicate an important First Amendment case on such a sketchy record is unfortunate. Were we apprised of the nature and frequency of Lawrence’s verbal outbursts against plaintiffs, perhaps we would find his speech did not actually create a hostile work environment, thereby rendering resolution of this important constitutional issue unnecessary. (See People v. Hernandez (1998) 19 Cal.4th 835, 845-848 [80 Cal.Rptr.2d 754, 968 P.2d 465] (dis. opn. of Werdegar, J.) [court should not decide constitutional issues until necessary to do so]; People v. Bennett (1998) 17 Cal.4th 373, 393 [70 Cal.Rptr.2d 850, 949 P.2d 947] (conc. opn. of Werdegar, J.) [same].) Were we provided with a record describing the nature of Lawrence’s epithets, perhaps we would find, for example, that his speech fell into the category of so-called “fighting words,” which the high court has found unprotected by the First Amendment. (See Chaplinsky v. New Hampshire (1942) 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031].) Or perhaps, if his offensive speech was combined with conduct, different First Amendment concerns would be implicated. (See Texas v. Johnson (1989) 491 U.S. 397 [109 S.Ct. 2533, 105 L.Ed.2d 342]; United States v. O’Brien (1968) 391 U.S. 367 [88 S.Ct. 1673, 20 L.Ed.2d 672].)
Lacking a record that would resolve these questions, we must decide the case as we find it. I proceed now to explain briefly why I find the plurality opinion’s analysis unsatisfactory; I next put forth a different analysis supportive of the judgment.
n
From the abbreviated record provided by defendants, we may discern that the jury found defendant Lawrence created a hostile work environment by *150engaging in a continuous pattern and practice of using racial and other epithets to demean and embarrass a group of Latino workers. The plurality opinion concludes we need not in this case confront the thorny constitutional question of whether speech alone may constitute the basis for liability based on the creation of a hostile work environment, reasoning that “defendants have not challenged the finding that their past conduct amounted to unlawful employment discrimination in violation of the FEHA, [so] we need not, and do not, address that broad issue here.” (Plur. opn., ante, at p. 131, fn. 3.)
By taking this approach, the plurality opinion never establishes the speech at issue in this case is unprotected by the First Amendment. Although the opinion declares that under “well-established law” the injunction 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” (plur. opn., ante, at p. 138), as discussed at greater length hereafter (post, at pp. 152-155), I can locate no authority from this court or the United States Supreme Court that concludes speech in the workplace that creates a racially hostile work environment, standing alone, can be made the basis of civil liability (under either FEHA or the similar federal law, title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (hereafter title VII)3) consistent with the First Amendment’s guarantee that the state shall not make laws “abridging the freedom of speech.” (See Gitlow v. New York (1925) 268 U.S. 652, 666 [45 S.Ct. 625, 629-630, 69 L.Ed. 1138] [applying the First Amendment to the states].)
The plurality opinion’s implicit assumption that a legislative body can validly pass a statute having the effect of removing constitutional protection from speech is unfounded. For example, the mere fact Congress has decreed (by enacting title VII) that the creation of an abusive or hostile work environment violates federal law does not necessarily mean racial speech creating such a work atmosphere is unprotected by the First Amendment. Congress cannot, by legislation, change the scope of one’s First Amendment rights. (United States v. Eichman (1990) 496 U.S. 310 [110 S.Ct. 2404, 110 *151L.Ed.2d 287] [Flag Protection Act of 1989 violated the First Amendment]; cf. City of Boerne v. Flores (1997) 521 U.S. 507 [117 S.Ct. 2157, 138 L.Ed.2d 624] [Congress’s attempt to redefine scope of free exercise clause by enacting the Religious Freedom Restoration Act of 1993 found unconstitutional].) Likewise, the mere fact the jury found defendant Lawrence was in violation of FEHA does not necessarily mean his speech was unprotected by the First Amendment.
In sum, by relying on the jury’s finding that defendants were liable for violating FEHA, together with defendants’ failure to challenge that finding on appeal, the plurality opinion attempts to resolve this case without deciding the critical First Amendment question involved. In contrast, I believe we must confront the fundamental preliminary question whether speech creating a racially hostile work environment is protected by the First Amendment. I now turn to that question.
IH
I begin my analysis with the recognition that we must assume for purposes of this appeal that defendant Lawrence engaged in a pervasive practice of hurling racially tinged insults at Latino workers, singling them out as the recipients of his offensive epithets. Defendant Avis Rent A Car System, Inc., Lawrence’s employer, tolerated this outrageous workplace behavior and was thus complicit in the creation of a racially hostile and abusive work environment. Though I assume the majority of persons finds such words distasteful, their utterance nevertheless is generally protected by the free speech guarantee of the First Amendment to the United States Constitution. If Lawrence’s invective would not have caused a reasonable person to react with violence (Chaplinsky v. New Hampshire, supra, 315 U.S. 568), if his words did not incite people to engage in imminent lawless action under circumstances making such action reasonably likely (Brandenburg v. Ohio (1969) 395 U.S. 444 [89 S.Ct. 1827, 23 L.Ed.2d 430] (per curiam)), if his words were not obscene under the Miller test (Miller v. California (1973) 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419]), if his words did not come within some other category of speech the high court has found outside the First Amendment’s protective umbrella, then an injunction prohibiting Lawrence from expressing himself in his chosen manner simply because we (or the Legislature) disagree with his message or wish to protect listeners against hurt feelings raises serious constitutional concerns.4
It is true Lawrence chose to express himself in a rude and provocative manner, inevitably producing feelings of anger, hostility and humiliation in *152his listeners, the plaintiffs here. However, “[i]nsults may contain a point of view that the speaker is entitled to express and his audience to hear. ‘Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases.’ ” (Fried, The New First Amendment Jurisprudence: A Threat to Liberty (1992) 59 U. Chi. L.Rev. 225, 242, quoting NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 928 [102 S.Ct. 3409, 3434, 73 L.Ed.2d 1215]; see also Greenawalt, Insults and Epithets: Are They Protected Speech? (1990) 42 Rutgers L.Rev. 287, 302 [“It is no coincidence that the less privileged and more radical are those who often use words and phrases that might be judged to impair civil discourse.”].) As the Supreme Court has trenchantly observed, “[sjurely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” (Cohen v. California (1971) 403 U.S. 15, 25 [91 S.Ct. 1780, 1788, 29 L.Ed.2d 284].)
What, then, of the rights of the Latino workers, who were the unwilling targets of Lawrence’s racial invective? Do they have the right not to listen, a right to work free of racial discrimination and intimidation? Do Lawrence’s First Amendment rights trump their rights? Most fundamentally, do Lawrence’s racially offensive epithets come within the protection of the First Amendment?
A. The Relevance of R.A.V. and Harris
As noted, ante, nothing in the decisions of the Supreme Court provides definitive guidance on whether racist speech at the workplace that is so pervasive and constant that it creates a hostile and abusive work environment is protected by the First Amendment’s guarantee of freedom of speech. Hints from two decisions, however, suggest the high court considers such speech outside the protective scope of the First Amendment.
In 1992, the Supreme Court held the City of St. Paul’s municipal ordinance banning certain hate speech was unconstitutional. (R. A. V. v. St. Paul *153(1992) 505 U.S. 377 [112 S.Ct. 2538, 120 L.Ed.2d 305] (R.A.V.).) Justice Scalia, speaking for a five-justice majority, explained that, although fighting words in general are not protected by the First Amendment, the city’s ordinance unconstitutionally engaged in viewpoint discrimination by prohibiting hate speech on some topics but not others. Noting the ordinance outlawed fighting words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion, or gender’ ” (id. at p. 391 [112 S.Ct. at p. 2547]), the majority found it significant that “[displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use ‘fighting words’ in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered.” (Ibid.)
The justices concurring separately in the R.A.V. decision expressed concern that the majority’s rationale called into question the constitutionality of sexual harassment claims under title VII, which declares it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(a)(l).) Thus, Justice White, writing for four justices, stated that “[u]nder the broad principle the Court uses to decide the present case, hostile work environment claims based on sexual harassment should fail First Amendment review . . . .” (R.A.V., supra, 505 U.S. at pp. 409-410 [112 S.Ct. at p. 2557] (conc. opn. of White, J.).)
Addressing this question, Justice Scalia replied that title VII claims did not come within the ambit of the majority’s analysis: “since 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), a particular content-based subcategory of a prescribable class of 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].” (R.A.V., supra, 505 U.S. at p. 389 [112 S.Ct. at p. 2546], italics added.)
Of course, R.A.V. did not involve a title VII claim and thus its pronouncement on whether such a claim would survive under the First Amendment is dictum. Moreover, what Justice Scalia was referring to when he explained that, in addition to fighting words, some “other words” could produce a constitutionally valid hostile work environment claim under title VII is *154unclear. We need not unravel this conundrum, however. It is enough for us to recognize that “[w]hen 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.” (Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at p. 12.) Thus, although R.A.V. did not “hold” that harassing workplace speech violative of title VII is unprotected speech, the opinions in the case suggest the court would so hold.
The next year, the Supreme Court gave a further hint of its views when it decided Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 [114 S.Ct. 367, 126 L.Ed.2d 295] (Harris). Harris concerned a sexual harassment claim under title VII, the basis of which involved both conduct and speech. For example, the defendant’s male president made Harris, the plaintiff, the target of sexual innuendo and made comments such as “ ‘You’re a woman, what do you know’ ” and that Harris was “ ‘a dumb ass woman.’ ” (Harris, supra, at p. 19 [114 S.Ct. at p. 369].) He also made sexually suggestive comments about Harris’s clothing. (Ibid.) Because the case involved the defendant’s speech as a contributory factor to the creation of a hostile work environment, “[s]ome observers therefore thought that the Supreme Court might use Harris to clarify the bearing of the First Amendment on sexual harassment law and, in doing so, might cut back sharply on accepted theories of Title VII liability.” (Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at pp. 1-2.) That both the parties and amici curiae briefed the First Amendment issue before the court further supported this belief. (Id. at pp. 9-10 & fns. 44-47.)
It was not to be. The Supreme Court in Harris simply found that, where an abusive and hostile work environment is created in violation of title VII, the plaintiff’s entitlement to relief is not dependent on her ability to show she suffered psychological injury. (Harris, supra, 510 U.S. at p. 22 [114 S.Ct. at p. 371].) Neither Justice O’Connor, who wrote for the Harris majority, nor Justices Scalia or Ginsburg, concurring separately, mentions whether harassing speech, standing alone, may constitute a violation of title VII consistent with the First Amendment.5
The question thus remains open.6 Nevertheless, I find strands of analysis in several high court decisions which, taken together, indicate that, even if *155speech creating a racially hostile or abusive work environment is protected by the First Amendment, such speech may be subject to some restrictions consistent with that amendment. I turn now to discussion of these strands.
B. Speech in the Workplace
Of course, speech is not wholly protected from government regulation in all places; the location of the speech is relevant to the degree of protection, if any, the speech will receive under the First Amendment. (Frisby v. Schultz (1988) 487 U.S. 474, 479 [108 S.Ct. 2495, 2500, 101 L.Ed.2d 420] (Frisby) [“To ascertain what limits, if any, may be placed on protected speech, we have often focused on the ‘place’ of that speech, considering the nature of the forum the speaker seeks to employ.”]; Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 302-303 [94 S.Ct. 2714, 2717, 41 L.Ed.2d 770] (plur. opn.) [“[T]he nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the [First] Amendment to the speech in question.”].)
For example, speech uttered in a traditional public forum is afforded the highest degree of protection from state regulation. (Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 45 [103 S.Ct. 948, 955, 74 L.Ed.2d 794] (Perry).) Streets and parks “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Hague v. C. I. O. (1939) 307 U.S. 496, 515 [59 S.Ct. 954, 964, 83 L.Ed. 1423].) Content-based restrictions on speech uttered in a traditional public forum must be narrowly tailored to achieve a compelling state interest. (Perry, supra, at p. 45 [103 S.Ct. at p. 955].)
Speech may occur in nonpublic fora as well, but in such cases the government is permitted to place reasonable restrictions on speech, even based on its content. (See Jones v. North Carolina Prisoners’ Union (1977) 433 U.S. 119 [97 S.Ct. 2532, 53 L.Ed.2d 629] [prison]; Greer v. Spock (1976) 424 U.S. 828 [96 S.Ct. 1211, 47 L.Ed.2d 505] [military base]; Adderley v. Florida (1966) 385 U.S. 39 [87 S.Ct. 242, 17 L.Ed.2d 149] [jail].) Thus, speech in nonpublic fora is subject to reasonable time, place and manner restrictions, and “the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” (Perry, supra, 460 U.S. at p. 46 [103 S.Ct. at p. 955].)
*156Not all speech-related activity occurs publicly in traditional public or even nonpublic fora. For most adult Americans, a great deal of time is spent at work. That the speech at issue in this case occurred at plaintiffs’ workplace is significant, because the Supreme Court has recognized that speech occurring in the workplace presents special considerations that sometimes permit greater restrictions on First Amendment rights. For example, in Connick v. Myers (1983) 461 U.S. 138 [103 S.Ct. 1684, 75 L.Ed.2d 708] (Connick), an assistant district attorney unhappy with a job transfer circulated a questionnaire in her office, asking her colleagues their opinion about “[the] office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” (Id. at p. 141 [103 S.Ct. at p. 1687], fn. omitted.) The district attorney fired her in part for this speech-related action, but the district court ordered her reinstated. The circuit court of appeals affirmed. The Supreme Court granted certiorari and reversed. The court explained that, with the exception of the question about political campaigns, the plaintiff’s speech was not a matter of “public concern” and that “[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” (Id. at p. 146 [103 S.Ct. at p. 1690].) Thus, the Supreme Court held the employee’s free speech rights could constitutionally be curtailed on the job. (See also Branti v. Finkel (1980) 445 U.S. 507 [100 S.Ct. 1287, 63 L.Ed.2d 574] [recognizing that for some public jobs, an employer could fire an employee for belonging to a particular political party without violating the employee’s First Amendment rights, but holding assistant public defender is not such a job]; but see Rankin v. McPherson (1987) 483 U.S. 378 [107 S.Ct. 2891, 97 L.Ed.2d 315] (Rankin) [violation of clerical employee’s First Amendment rights for constable to fire her for expressing opinion, while on the job, that she disagreed with the president’s policies and hoped he would be killed]; Rosenthal, Permissible Content Discrimination Under the First Amendment: The Strange Case of the Public Employee (1998) 25 Hastings Const. L.Q. 529, 550-551 [criticizing Connick and arguing that Connick and Rankin “point in different directions”].)
The intersection of an individual’s place of employment and his or her free speech rights also appeared in CSC v. Letter Carriers (1973) 413 U.S. 548 [93 S.Ct. 2880, 37 L.Ed.2d 796] (Letter Carriers). In that case, the high court held the Hatch Act (5 U.S.C. former § 7324(a)(2), now see § 7323), which as then written prohibited federal employees from taking active roles in political campaigns for public office, did not violate federal employees’ rights under the First Amendment. Although activity in political campaigns *157is core political speech that would otherwise be entitled to the highest constitutional protection, the court found substantial public policy reasons justified the limitation on employee speech. “[A] judgment [was] made by this country over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited.” (Letter Carriers, supra, at p. 557 [93 S.Ct. at p. 2886]; but see Bauers v. Cornett (8th Cir. 1989) 865 F.2d 1517, 1523 [explaining that Hatch Act was amended after Letter Carriers].) Thus, a strong public policy in avoiding coercing public employees to work on political campaigns justified restrictions on employees’ First Amendment rights. (Cf. Snepp v. United States (1980) 444 U.S. 507 [100 S.Ct. 763, 62 L.Ed.2d 704] (per curiam) [imposition of constructive trust on book profits justified by failure of former Central Intelligence Agency employee, in violation of employment agreement, to obtain clearance from agency before publishing book based on admittedly unclassified information].)
Thus, in order to vindicate sufficiently weighty public policies governing the workplace, the high court has in the past found the First Amendment rights of employees must sometimes give way. In the cases described above, however, the government directly restricted the speech of public employees. Not so with NLRB v. Gissel Packing Co. (1969) 395 U.S. 575 [89 S.Ct. 1918, 23 L.Ed.2d 547] (Gissel). In that case, a private employer, Sinclair Company, faced a union organizing campaign among its workers. When the president of Sinclair Company first learned of the campaign, he spoke to his employees, attempting to dissuade them from joining a union. He stated that the workers were forgetting the “ ‘lessons of the past’ ” when a prior strike had shut down the plant for three months and the plant had then reopened without a union contract; that the company was still on “ ‘thin ice’ ” financially; that a strike “ ‘could lead to the closing of the plant’ ”; and that because of their age and the limited usefulness of their skills, the workers would not find ready employment if the plant closed. (Id. at pp. 587-588 [89 S.Ct. at p. 1926].) In the weeks leading up to the election, the company sent each of the workers letters and pamphlets to the same effect. (Id. at pp. 588-589 [89 S.Ct. at p. 1927].) When the union lost the election, it filed objections to the employer’s communications.
As pertinent here, the National Labor Relations Board (NLRB) found Sinclair Company’s communications with its workers violated section 8(a)(1) of the National Labor Relations Act, codified at 29 United States Code section 158(a): “It shall be an unfair labor practice for an employer— [H] (1) to interfere with, restrain, or coerce employees in the exercise of the *158rights guaranteed in section 157 of this title.” Title 29, United States Code section 158(c) provides: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” The United States Court of Appeals for the First Circuit affirmed the NLRB’s ruling.
On certiorari before the Supreme Court, Sinclair Company argued that application of these rules to the speech of its president violated his First Amendment rights. The high court rejected the argument, reasoning that “[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting.” (Gissel, supra, 395 U.S. at p. 617 [89 S.Ct. at p. 1942], italics added.) The Supreme Court emphasized that the employer’s First Amendment rights must be balanced against “the equal rights of the employees to associate freely,” and the court must “take into account the economic dependence of the employees on their employers.” (Ibid.) In such a setting, said the court, free speech rights in the workplace must be distinguished from speech relating to “the election of legislators or the enactment of legislation . . . where the independent voter may be freer to listen more objectively and employers as a class freer to talk.” (Id. at pp. 617-618 [89 S.Ct. at p. 1942].) In short, because the speech at issue occurred at the workplace, some restrictions on speech could be tolerated that would be impermissible if applied to speech in other settings.
Of course, employees retain First Amendment rights while on the job (Rankin, supra, 483 U.S. 378; Branti v. Finkel, supra, 445 U.S. 507); Gissel did not create a general “workplace exception” to the First Amendment. Still, “in Gissel the Supreme Court validated congressional power, under the Commerce Clause, to impose content-based speech restrictions in the workplace to effectuate values embodied in the greater Constitution. The Gissel Court’s holding, in large part, rested on its understanding of the unique nature of the employment relationship and the potential for even subtle coercion in this context to undermine valid economic policy which promotes constitutional interests.” (Sangree, No Collision in Sight, supra, 47 Rutgers L.Rev. at p. 520; see also Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at p. 19 [advocating development of a workplace speech doctrine “responding to distinctive features of the workplace”]; but see Volokh, Workplace Harassment, supra, 39 UCLA L.Rev. at pp. 1820-1822 [reading Gissel much more narrowly].)
Thus, Connick, Letter Carriers and Gissel demonstrate the Supreme Court’s recognition that strong public policies governing the workplace— *159both private and public—may justify some limitations on the free speech rights of employers and employees. This view is consistent with the reality that workplaces and jobsites are not usually thought of as marketplaces for the testing of political and social ideas (Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment (1990) 1990 Duke L.J. 375, 423 [suggesting some may view workplace speech as different from political speech generally]), and, therefore, the importance of preserving the workplace as a forum where free speech rights will outweigh other important constitutional considerations is diminished.
C. Employees Are a Captive Audience
In addition to high court authority recognizing free speech limitations at the workplace, another analytical strand that recurs frequently in Supreme Court decisions is relevant here. The Supreme Court has in a number of cases recognized that when an audience has no reasonable way to escape hearing an unwelcome message, greater restrictions on a speaker’s freedom of expression may be tolerated. Stated differently, even if the speaker enjoys the right to free speech, he or she has no corollary right to force people to listen.
The relevance of a captive audience to determining the scope of First Amendment protection of speech is exemplified by Frisby, supra, 487 U.S. 474. In that case, the Supreme Court upheld an ordinance that prohibited focused picketing in front of an individual’s home. Although picketing is generally characterized as core political speech (Carey v. Brown (1980) 447 U.S. 455, 460 [100 S.Ct. 2286, 65 L.Ed.2d 263]; Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 152 [89 S.Ct. 935, 939, 22 L.Ed.2d 162]) and was so in Frisby (the resident was targeted because he was a physician who performed abortions), the Supreme Court explained that “[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.” (Frisby, supra, at p. 487 [108 S.Ct. at p. 2504].)
The high court responded to similar concerns in Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675 [106 S.Ct. 3159, 92 L.Ed.2d 549] (Bethel School). In Bethel School, the high court upheld discipline imposed on a high school student who gave a speech laced with sexual innuendo at a school assembly that many students were required to attend. Although relying largely on the presence of children at the assembly, the high court also stated that school authorities acting in loco parentis “[should] protect children— especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech.” (Id. at p. 684 [106 S.Ct. at p. 3165], italics added.)
*160That the presence of a captive audience is important in determining the proper degree of First Amendment protection was also discussed in Rowan v. Post Office Dept. (1970) 397 U.S. 728 [90 S.Ct. 1484, 25 L.Ed.2d 736] (Rowan). In Rowan, the appellants challenged the constitutionality of a federal law that permitted householders to request their name be removed from mailing lists so they might not receive sexually themed mailings. The Supreme Court upheld the law, stating: “We . . . categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even ‘good’ ideas on an unwilling recipient. That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere.” (Id. at p. 738 [90 S.Ct. at p. 1491].)
In addition to Frisby, Bethel School and Rowan, numerous other cases have cited an audience’s “captivity” as a factor justifying limitations on free speech. (FCC v. Pacifica Foundation (1978) 438 U.S. 726, 748-750 [98 S.Ct. 3026, 3040-3041, 57 L.Ed.2d 1073] (plur. opn.) (Pacifica) [possibility that nonconsenting adults might inadvertently tune in to radio broadcast containing indecent speech justified precluding broadcast during the day]; id. at p. 759 [98 S.Ct. at pp. 3045-3046] (conc. opn. of Powell, J.) [“Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away . . . , a different order of values obtains in the home.”]; Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 209 [95 S.Ct. 2268, 2272, 45 L.Ed.2d 125] (Erznoznik) [restrictions on speech are justified when “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure”]; id. at p. 218 [95 S.Ct. at p. 2277] (conc. opn. of Douglas, J.) [endorsing view that “a narrowly drawn ordinance could be utilized within constitutional boundaries to protect the interests of captive audiences”]; Lehman v. City of Shaker Heights, supra, 418 U.S. at p. 302 [94 S.Ct. at pp. 2716-2717] (plur. opn.) [recognizing riders of public transit are a captive audience to advertising placed inside the cars]; id. at pp. 306-307 [94 S.Ct. at p. 2719] (conc. opn. of Douglas, J.) [also recognizing bus riders are a captive audience]; Cohen v. California, supra, 403 U.S. at pp. 21-22 [91 S.Ct. at pp. 1786] [noting those objecting to the defendant’s objectionable message, exhibited on his jacket, could simply avert their eyes].)
The relative captivity of plaintiffs here supports the restriction on defendant Lawrence’s speech. Plaintiffs were not present at their job because they wished to hear Lawrence’s particular views on their Latino heritage, but neither were they reasonably free to walk away when confronted with his *161racial slurs. Although plaintiffs could have avoided the undesired speech by quitting their jobs and seeking employment with more racially tolerant supervisors, the cases discussed above indicate the captive audience doctrine is not reserved for situations in which listeners are physically unable to leave, such as passengers on airplanes or inmates in prison. The Constitution does not require plaintiffs to sacrifice their employment to avoid a racially clamorous work environment any more than the doctor in Frisby, supra, 487 U.S. 474 was required to move from his home, the students in Bethel School, supra, 478 U.S. 675 were required to leave school, or the passengers in Lehman v. City of Shaker Heights, supra, 418 U.S. 298 were required to walk home. People need not engage in heroic efforts before we will conclude they have sufficiently averted their eyes and plugged their ears. People need to work; expecting them to walk past someone handing out leaflets on the sidewalk without accepting and reading the flyer is not the same as requiring them to walk off their job to avoid unwanted speech. So long as avoiding unwelcome speech is—as here—sufficiently “impractical” (Erznoznik, supra, 422 U.S. at p. 209 [95 S.Ct. at p. 2272]), we can conclude listeners constitute a captive audience, with the result that courts will show greater solicitude for their privacy and their right not to be forced to listen to unwelcome speech.
Most of the cases cited above concededly did not solely concern a captive audience. Frisby, Pacifica and Rowan relied in addition on the increased privacy interest in one’s home. (Frisby, supra, 487 U.S. at pp. 484-485 [108 S.Ct. at p. 2502]; Pacifica, supra, 438 U.S. at pp. 731, fn. 2, 748-749 [98 S.Ct. at pp. 3031, 3040]; Rowan, supra, 397 U.S. at p. 738 [90 S.Ct. at p. 1491] [emphasizing “the sanctuary of the home”]; cf. Wilson v. Layne (1999) 526 U.S. 603, 609-610 [119 S.Ct. 1692, 1697, 143 L.Ed.2d 818] [“The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home . . . .”].) Bethel School and Pacifica relied also on the presence of children. (Bethel School, supra, 478 U.S. at pp. 683-684 [106 S.Ct. at p. 3164]; Pacifica, supra, at pp. 731, fn. 2, 749-750 [98 S.Ct. at pp. 3030-3031, 3040-3041].) Pacifica, Rowan and Erznoznik involved, as well, lewd or indecent speech. (Pacifica, supra, at pp. 739-740 [98 S.Ct. at p. 3035]; Rowan, supra, at p. 730 [90 S.Ct. at pp. 1487]; Erznoznik, supra, 422 U.S. at p. 207 [95 S.Ct. at p. 2271] [ordinance prohibited drive-in theater with screen visible from public street from exhibiting any film portraying nudity].)
The applicability of the captive audience doctrine to harassing speech in the workplace is, moreover, debated by legal commentators. (Compare Volokh, Workplace Harassment, supra, 39 UCLA L.Rev. at pp. 1832-1843 [captive audience doctrine should not apply to the workplace], with Sangree, *162No Collision in Sight, supra, 47 Rutgers L.Rev. at pp. 515-518 [rejecting Professor Volokh’s argument], and Volokh, How Harassment Law Restricts Free Speech, supra, 47 Rutgers L.Rev. at pp. 571-572 [replying to Professor Sangree]; cf. Cohen v. California, supra, 403 U.S. at p. 21 [91 S.Ct. at p. 1786] [“Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.”].) Nevertheless, the Supreme Court authority discussed above firmly establishes, at the least, that the relative captivity of an audience is a relevant and important, if not dispositive, factor ip determining whether government restrictions on speech in the workplace are permissible under the First Amendment. Applying that concept here, I find that although defendant Lawrence may desire to offer his apparently low opinion of the Latino workers at his place of employment, plaintiffs apparently do not wish to hear it. Further, plaintiffs were not free to walk away easily from Lawrence’s speech, avert their eyes, cover their ears or otherwise avoid hearing his unwanted message. I conclude plaintiffs’ status as forced recipients of Lawrence’s speech lends support to the conclusion that restrictions on his speech are constitutionally permissible in the circumstances at hand, where the regulation of speech is limited solely to the workplace and the offended recipients constitute a captive audience.
D. The Injunction Here Is Similar to a Time, Place and Manner Regulation
A separate, but related, basis for countenancing an injunction in these circumstances is that an injunction restricting speech that creates a racially hostile work environment is analogous to a permissible time, place and manner restriction on speech. As a general matter, speech in even a traditional public forum may be subject to reasonable time, place and manner restrictions. (Perry, supra, 460 U.S. at p. 45 [103 S.Ct. at p. 955].) Such restrictions must be content-neutral, serve a significant government interest and “leave open ample alternative channels of communication.” (Ibid.) In a nonpublic forum, the government may also “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” (Id. at p. 46 [103 S.Ct. at p. 955].)
Time, place and manner rules generally have been applied to public and nonpublic fora. As a private employer’s place of business, defendants’ workplace is neither a public nor a nonpublic forum; it is private property. Nevertheless, the Supreme Court has “on at least one occasion applied [the time, place and manner doctrine] to conduct occurring on private property” *163(Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 566 [111 S.Ct. 2456, 2460, 115 L.Ed.2d 504] (plur. opn.), referring to Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 [106 S.Ct. 925, 89 L.Ed.2d 29]), and adapting to a private workplace the rules applicable to nonpublic fora does not seem inconsistent with the basic goals and purposes of the First Amendment. (See Robinson v. Jacksonville Shipyards, Inc. (M.D.Fla. 1991) 760 F.Supp. 1486, 1535 [“the regulation of discriminatory speech in the workplace constitutes nothing more than a time, place, and manner regulation of speech”].) Private property is rarely dedicated to the purpose of permitting the unrestrained dissemination of speech; common sense suggests that government restrictions on speech that would be impermissible in public and even nonpublic fora may nevertheless be permissible when applied to certain types of private property.7
I begin with the state’s interest in restricting workplace speech that creates a racially hostile work environment. The state has announced that it is “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 . . . .” (Gov. Code, § 12920.) The state recognizes that such 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.” (Ibid.)
Of course, the elimination of racial discrimination, even by private parties or entities, has often been found to be a governmental interest of the highest order. (See, e.g., Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614 [111 S.Ct. 2077, 114 L.Ed.2d 660] [exercise of race-based peremptory challenge to juror by private litigant in civil case held unconstitutional]; Bob Jones University v. United States (1983) 461 U.S. 574 [103 S.Ct. 2017, 76 L.Ed.2d 157] [denial of federal tax benefits for private religious schools with racially discriminatory policy upheld]; Jones v. Mayer Co. (1968) 392 U.S. 409 [88 S.Ct. 2186, 20 L.Ed.2d 1189] [federal statute barring racial discrimination in sale or rental of private property valid under the Thirteenth Amendment]; Shelley v. Kraemer (1948) 334 U.S. 1 [68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441] [enforcement of racially restrictive covenant in private property deed unconstitutional].) In short, the State of California has stated a compelling governmental interest in support of its laws aimed at eliminating racially discriminatory practices in private employment.
*164Restricting Lawrence in the future from engaging in speech that is productive of a racially hostile work environment leaves him ample alternatives for advocating, espousing or simply stating his beliefs. Because I agree with the plurality opinion’s affirmance of the Court of Appeal’s decision reversing and remanding the case to permit the trial court to “redraft the injunction in a manner that . . . limits its scope to the workplace,” a majority of this court agrees the injunction in this case should be limited to speech in the workplace. Lawrence is thus free to speak anywhere and at any time outside of his place of employment, whether it be in his home, on the sidewalk, in the park, in his local restaurant or on the Internet.
Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753 [114 S.Ct. 2516, 129 L.Ed.2d 593] (Madsen) is illustrative. In that case, protesters picketing an abortion clinic were subject to an injunction that prohibited them from blocking access to the clinic or physically abusing persons entering or leaving it. On finding the injunction to have been violated, the trial court issued a new injunction, providing, inter alia, that demonstrators must (with some exceptions) stay at least 36 feet from clinic driveways and entrances. The demonstrators eventually sought review in the Supreme Court, claiming the new injunction violated their First Amendment rights.
The Supreme Court, although striking down other parts of the injunction, upheld the requirement of a 36-foot buffer zone, finding the limitation was a valid time, place and manner restriction on speech. As pertinent to the question here, the high court noted the “petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone.” (Madsen, supra, 512 U.S. at p. 764, fn. 2 [114 S.Ct. at p. 2524].) If the injunction in the instant case is limited on remand to apply to the workplace only, Lawrence similarly will have open to him ample alternative channels of communication.
The Supreme Court’s existing time, place and manner decisions admittedly do not wholly govern this case, for not only does this case not involve a public forum, the injunction here is not content-neutral. “The Supreme Court has stated repeatedly . . . that time, place, and manner regulations must be content neutral in order to receive deferential judicial review.” (Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at pp. 16-17, fn. omitted.) “[The] principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech ‘without reference to the content of the regulated speech.’ ” (Madsen, supra, 512 U.S. at p. 763 [114 S.Ct. at p. 2524].) “We thus look to the government’s purpose as the threshold consideration.” (Ibid. [114 S.Ct. at p. 2523].)
*165The state’s purpose here is the elimination of racial discrimination and harassment at the workplace. FEHA thus is clearly concerned with the content of harassing speech; hence, the injunction cannot be classified as content-neutral. This fact has led some commentators to conclude that reliance on the time, place and manner doctrine in the employment harassment setting is misplaced. (Volokh, Workplace Harassment, supra, 39 UCLA L.Rev. at pp. 1826-1828; Browne, Title VII as Censorship, supra, 52 Ohio St. L.J. at p. 521.) As noted at the beginning of this opinion, no Supreme Court decision is directly on point; accordingly, we do not know how that court would balance the diverse interests present here.
Whether the content-based nature of the injunction wholly disqualifies the time, place and manner doctrine from any application to this case need not be decided, however. Instead, it is sufficient to consider components of the doctrine as relevant to the overall assessment of whether the injunction violates defendant Lawrence’s First Amendment rights. When those components—a compelling state interest and alternative channels of communication—are considered together with the facts the speech sought to be enjoined occurred in the workplace and the recipients of the unwelcome speech were a captive audience, a strong case for upholding the injunction appears.
We must consider the implications of a contrary holding. The state’s interest in eradicating racial discrimination in the workplace is compelling, and the state has made a reasonable determination that such discrimination causes “domestic strife and unrest” and is harmful to “the interest of employees, employers, and the public in general.” (Gov. Code, § 12920.) The state’s interest is fully applicable to this case, as it is undisputed the speech in question occurred at the workplace where both plaintiffs and defendant Lawrence work. Plaintiffs do not wish to listen to Lawrence’s constant stream8 of verbiage denigrating them on account of their Latino heritage, but they are not free, as a practical matter, to leave their jobs to avoid being the targets of his racial slurs. Lawrence, on the other hand, is free to speak his mind anywhere and everywhere, with the sole exception of the workplace.
Diverse interests are in play in this case, and balancing them is undeniably a difficult task. Were we to find the injunction violates Lawrence’s First *166Amendment rights, we would be concluding those rights outweigh the rights of the Latino plaintiffs to be free of unwanted racial discrimination. Like Lawrence’s asserted interest in free speech, however, plaintiffs’ interest also finds recognition in our federal Constitution (U.S. Const., Amends. XIII, XIV, XV; see Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 453 & fn. 9 [96 S.Ct. 2666, 2670, 49 L.Ed.2d 614] [Congress exercising powers under section 5 of the 14th Amendment when it passed relevant amendments to title VII]). Given the constellation of factors present in this case, no clear reason appears why Lawrence’s free speech rights should predominate over the state’s and the individual plaintiffs’ similarly weighty antidiscrimination interests.
Balancing Lawrence’s First Amendment free speech rights with the equally weighty right of plaintiffs to be let alone at their jobsite, free of racial discrimination, I find the several factors coalescing in this case— speech occurring in the workplace, an unwilling and captive audience, a compelling state interest in eradicating racial discrimination, and ample alternative speech venues for the speaker—support the conclusion that the injunction, if sufficiently narrowed on remand to apply to the workplace only, will pass constitutional muster.
IV
Having found the injunction, properly narrowed on remand, would not violate the First Amendment, I reach the same result under the California Constitution. Article I, section 2, subdivision (a) of the state Constitution provides: “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.” We have in the past observed this state constitutional free speech guarantee is “[a] protective provision more definitive and inclusive that the First Amendment” (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658 [119 Cal.Rptr. 468, 532 P.2d 116]; see also Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1041 [232 Cal.Rptr. 542, 728 P.2d 1177]) and its plain meaning prohibits prior restraints on speech (Dailey v. Superior Court (1896) 112 Cal. 94, 100 [44 P. 458]; Pines v. Tomson (1984) 160 Cal.App.3d 370, 393 [206 Cal.Rptr. 866]). Lawrence argues that even if the injunction is permissible under the federal Constitution, it is invalid under this state constitutional provision, which provides greater protection for speech than is afforded by the First Amendment.
Although the First Amendment is written in absolute terms, it has not been so interpreted. The same is true for article I, section 2, subdivision (a) of the *167state Constitution. As we explained in Wilson v. Superior Court, supra, 13 Cal.3d at pages 661-662: “We do not. . . suggest that prior restraint upon publication can never be justified. The decisions recognize that prior restraints may be imposed under some extraordinary circumstances. For example, it has been said that the government may prohibit the disclosure of military secrets in time of war and prevent the utterance of words that may have the effect of force. [Citation.] Furthermore, an injunction restraining speech may issue in some circumstances to protect private rights (see, e.g., Magill Bros. v. Bldg. Service etc. Union (1942) 20 Cal.2d 506, 511-512 [127 P.2d 542]) or to prevent deceptive commercial practices (Securities and Exchange Comn. v. Texas Gulf Sulphur Co. (2d Cir. 1971) 446 F.2d 1301, 1306).” In other words, a sufficiently strong public policy reason can justify a prior restraint on speech even under the heightened protection afforded by the state Constitution.
As with the federal constitutional analysis set forth above, in the state constitutional analysis as well two powerful constitutional interests are at issue. In addition to the protection for one’s freedom to “speak, write and publish his or her sentiments on all subjects,” the state Constitution—like the Fourteenth Amendment to the federal Constitution—also mandates people not be “denied equal protection of the laws.” (Cal. Const., art. I, § 7, subd. (a).) Moreover, just as the state Constitution’s free speech guarantee provides greater protection than its federal counterpart, our state charter also provides heightened protection against racial discrimination in the workplace. Article I, section 8 provides “[a] person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of . . . race . . . .” It is thus no answer to observe that free speech rights are greater under the state Constitution, because the same document also grants greater protection against racial discrimination in the workplace. We are once again faced with a difficult balance between competing constitutional values.
The confluence of factors that justifies the limitation on defendant Lawrence’s speech under the First Amendment to the United States Constitution supports the same result under the California Constitution. For example, that a potential listener is unable to escape hearing an unwanted message has been cited as a significant factor in the evaluation of free speech rights in this state. In Braxton v. Municipal Court (1973) 10 Cal.3d 138 [109 Cal.Rptr. 897, 514 P.2d 697], this court found that regulation of bullhorns or loud speakers used in demonstrations was “necessary to prevent substantial interference with the work of captive audiences in classrooms and research facilities.” (Id. at p. 149.) Similarly, in City of San Jose v. Superior Court (1995) 32 Cal.App.4th 330 [38 Cal.Rptr.2d 205], the appellate court approved a city ordinance that, in creating a 300-foot buffer zone *168around the residences of staff members of an abortion clinic, declared “ ‘targeted picketing activity creates a “captive audience” situation.’ ” (Id. at p. 341.) Clearly an audience’s practical ability to avoid unwelcome or unpleasant speech is relevant to evaluating the validity of an injunction under the state Constitution.
Notwithstanding the heightened protection free speech rights enjoy under the state Constitution, time, place and manner restrictions are also recognized under our state charter. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910 [153 Cal.Rptr. 854, 592 P.2d 341]; Dulaney v. Municipal Court (1974) 11 Cal.3d 77, 85 [112 Cal.Rptr. 777, 520 P.2d 1]; Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1572 [273 Cal.Rptr. 302]; Planned Parenthood v. Holy Angels Catholic Church (N.D.Cal. 1991) 765 F.Supp. 617, 625.) Although the speech here was not uttered in a public forum and the injunction is not content-neutral, I find the two remaining factors in the equation—a significant state interest, and ample alternative avenues of communication—are relevant under the state Constitution.
As noted, the California Constitution itself recognizes the importance of eliminating racial discrimination in the workplace. (Cal. Const., art. I, § 8.) Our Legislature has similarly declared such workplace discrimination odious. (Gov. Code, § 12920 [FEHA]; see also Civ. Code, § 51 [“All persons within the jurisdiction of this state are free and equal, and no matter what their . . . race, ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”].) This court has also observed that the “policy that promotes the right to seek and hold employment free of prejudice is fundamental.” (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220 [185 Cal.Rptr. 270, 649 P.2d 912].) State law, both statutory and constitutional, thus recognizes a compelling interest in the elimination of racial discrimination in the workplace.
In short, I find defendants’ rights under the California Constitution do not compel the conclusion the injunction must be set aside.
V
When we leave our homes, we enter a hurly-burly world where we are sometimes required to endure the unpleasant and undesirable opinions and entreaties of others. Unfortunately, such unwelcome speech sometimes attacks us on the basis of our race, gender or ethnic heritage. (See, e.g., Brandenburg v. Ohio, supra, 395 U.S. 444 [Ku Klux Klan leader made derogatory remarks about African-Americans]; Contento v. Mitchell (1972) *16928 Cal.App.3d 356 [104 Cal.Rptr. 591] [defendant called plaintiff a “bitch” and a “whore”]; National Socialist Party v. Skokie (1977) 432 U.S. 43 [97 S.Ct. 2205, 53 L.Ed.2d 96] (per curiam) [American Nazis wishing to stage parade in predominantly Jewish village].) Ensuring proper breathing room for the airing of diverse views generally requires that we simply close our ears, avert our eyes and move on. The freedom of speech guaranteed by the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” (United States v. Associated Press (S.D.N.Y. 1943) 52 F.Supp. 362, 372 (opn. of Hand, J.), affd. sub nom. Associated Press v. United States (1945) 326 U.S. 1 [65 S.Ct. 1416, 89 L.Ed. 2013].)
The workplace is different from sidewalks and parks, however; workers are not so free to leave to avoid undesired messages. When employees are forced to endure racially harassing speech on the job, it is arguable that “substantial privacy interests are being invaded in an essentially intolerable manner.” (Cohen v. California, supra, 403 U.S. at p. 21 [91 S.Ct. at p. 1786].) In enacting FEHA and its related provisions, the state has recognized the damage racial discrimination at the workplace can cause, both economically to society and psychologically to the victimized worker. Finally, the restriction on the harasser seems de minimis because he remains free to state his views and opinions in every place other than his place of employment.
No single factor present in this case justifies the restraint on speech here; indeed, another case posing different facts may lead to a different conclusion. However, for all the reasons stated above, I conclude that Lawrence’s speech, even if constitutionally protected, may nevertheless be subject to the modest time and place restrictions discussed above, and that an injunction, properly narrowed on remand,9 will not violate his right to freedom of speech guaranteed to him by both the First Amendment to the United States Constitution and by article I, section 2, subdivision (a) of the California Constitution.
I also agree with the plurality opinion’s conclusion that the “secondary effects” doctrine does not control this case. (Plur. opn., ante, at p. 135, fn. 4.)
“There is a lively debate within First Amendment scholarship over the constitutional status of discriminatory verbal harassment, particularly in the workplace. A number of decisions finding harassment liability under Title VII have turned in whole or in part on what we would ordinarily recognize as ‘speech’; yet few courts have seriously considered the relevance of the First Amendment in this regard. The commentators have stepped into the judicial vacuum with gusto. Some commentators have argued that Title VII’s harassment law, as applied to nearly all speech, abridges the freedom of speech protected by the First Amendment. Others have defended harassment law as both necessary to workplace equality and entirely consistent with free speech principles and doctrine. Still others situate themselves at some point in the middle and advocate some restrictions on the application of Title VII to speech.” (Estlund, The Architecture of the First Amendment and the Case of Workplace Harassment (1997) 72 Notre Dame L.Rev. 1361, 1363-1364, fns. omitted.)
Harassment in the workplace is also prohibited by federal law. (42 U.S.C. § 2000e et seq.) “Although the wording of title VII differs in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes of the two acts are identical.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517 [76 Cal.Rptr.2d 547].) “Where there is a dearth of state authority in an area of emerging law, such as employment discrimination, it is appropriate to consider federal cases interpreting title VII.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1416, fn. 5 [26 Cal.Rptr.2d 116].) “Although they are not controlling, federal cases interpreting title VII are instructive when analyzing a FEHA claim.” (Spaziano v. Lucky Stores, Inc. (1999) 69 Cal.App.4th 106,112 [81 Cal.Rptr.2d 378].)
The law generally prohibiting prior restraints on speech is settled. “Any system of prior restraint . . . ‘comes to this Court bearing a heavy presumption against its constitutional validity.’ Bantam Books, Inc. v. Sullivan, [(1963)] 372 U. S. [58,] 70 [83 S.Ct. 631, 639, 9 *152L.Ed.2d 584] [citations]. The presumption against prior restraints is heavier—and the degree of protection broader—than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558-559 [95 S.Ct. 1239, 1246, 43 L.Ed.2d 448], italics in original.) The government bears a “ ‘heavy burden’ ” to justify a prior restraint. (New York Times Co. v. United States (1971) 403 U.S. 713, 714 [91 S.Ct. 2140, 2141, 29 L.Ed.2d 822] (per curiam); Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419 [91 S.Ct. 1575, 1577-1578, 29 L.Ed.2d 1].)
The Harris majority at one point noted that whether a hostile or abusive work environment exists under title VII requires consideration of several factors, including whether the harassing conduct is severe “or a mere offensive utterance.” (Harris, supra, 510 U.S. at p. 23 [114 S.Ct. at p. 371].)
Professor Fallon argues that after R.A.V., supra, 505 U.S. 377, and Harris, supra, 510 U.S. 17, “it is virtually inconceivable that the Supreme Court might hold that the First Amendment *155forbids the imposition of Title VII liability for a broad category of sexually harassing speech.” (Fallon, Sexual Harassment, supra, 1994 Sup. Ct. Rev. at p. 9.)
Indeed, private employers commonly place any number of restrictions on the speech of their employees, from requiring salespersons to speak well of an employer’s products to potential customers and instructing restaurant wait staff not to speak ill of the food they are serving, to requiring employees to keep trade secrets confidential.
“In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment 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.]” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [262 Cal.Rptr. 842]; Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 446 [71 Cal.Rptr.2d 573] [quoting Fisher]; see also Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67 [106 S.Ct. 2399, 2405, 91 L.Ed.2d 49] [finding sexual harassment on the job must be “sufficiently severe or pervasive” before there can be liability under title VII].)
Insofar as the “exemplary list of prohibited derogatory racial or ethnic epithets,” which the appellate court directed the trial court to provide, is fashioned in the context of an injunction directed not against individual words per se, but the creation of, or perpetuation of, a racially hostile work environment, I concur in this limitation as well. Such a list should be intended as illustrative and explanatory, rather than prohibiting the mere utterance of specified words regardless of context. In this way, defendants will have additional notice what types of speech are prohibited by the injunction, reducing any potential vagueness that may inhere in an injunction that even partially restricts speech.