I dissent.
The plurality conclude that a remedial injunction under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), banning a list *170of derogatory words from use in the workplace, is a permissible remedy for employment discrimination by defendants John Lawrence and Avis Rent A Car System, Inc. (Avis). I disagree. Among our most cherished constitutional principles is that speech—even if offensive—should be protected unless, and until, it produces a demonstrable harmful effect.
Both the First Amendment of the United States Constitution and article I, section 2, subdivision (a), of the California Constitution restrict the use of content-based prior restraints on speech. The order at issue here—enjoining any future use in the workplace of specified words—constitutes just such a prior restraint. It impermissibly restricts speech based on the mere assumption that these words will inevitably create a hostile and abusive work environment amounting to employment discrimination. Nor is this injunction salvaged by labeling it a restraint on conduct rather than speech.
The plurality’s error is particularly glaring because they are deciding this matter in a contextual vacuum, without the benefit of a factual record. They thus overlook the duty of an appellate court, where free speech rights are at stake, to independently review the trial court’s findings and the whole record to assure that any injunction is narrowly tailored and justified by compelling necessity. That duty is no less imperative in a matter involving speech in the workplace. As the United States Supreme Court recently emphasized: “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82 [118 S.Ct. 998, 1003, 140 L.Ed.2d 201].) Here, we know nothing of the surrounding circumstances. We do not even know what offensive remarks were made, to whom, or when. All we do know is that the parties have agreed that the remarks did not amount to “fighting words”—i.e., that the injunction involves otherwise protected speech—and that Lawrence has apparently not made any similarly offensive remarks to Avis employees since 1992.
Like my colleagues, I abhor discrimination in any form. But I feel equally strongly that we cannot use the instrumentality of the courts to penalize speech before we know what was said, to whom, and with what effect. It should be obvious that we may not do so in advance, based only on predictions of future harm.
I
The crux of the plurality opinion is that the injunction forbidding the use of a list of words does not amount to a prior restraint so long as it was issued *171after a jury determination of past employment discrimination. It endorses the formulation of amicus curiae American Civil Liberties Union of Northern California that speech was properly enjoined here because “a fair judicial process has determined that a repetitive pattern of speech is unprotected.” I am unpersuaded.
“The term ‘prior restraint’ is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ [Citation.] Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.” (Alexander v. United States (1993) 509 U.S. 544, 550 [113 S.Ct. 2766, 2771, 125 L.Ed.2d 441].) The injunction here falls squarely within that definition. It was not transformed into something acceptable simply because it was issued after a judicial finding of past employment discrimination.
According to the Chief Justice, the injunction passes constitutional muster because it simply precludes defendants from continuing their unlawful activity. It does more than that. It directly targets otherwise protected speech, forbidding any future use of a list of offensive words in the workplace—even outside the presence of plaintiffs and even if welcome or overtly permitted. Although the plurality opinion insists that it would prohibit an illegal course of conduct, in fact it regulates speech on the basis of expressive content. (See DeAngelis v. El Paso Mun. Police Officers Ass’n. (5th Cir. 1995) 51 F.3d 591, 597, fn. 7.)
Moreover, it is not true that any and all future use even of offensive epithets will necessarily amount to a continuation of the same unlawful activity. As the plurality opinion concedes, “not every utterance of a racial slur in the workplace violates the FEHA or Title VII [of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)].” (Plur. opn., ante, at p. 130; see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842]; Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct. 367, 370, 126 L.Ed.2d 295] [“ ‘[M]ere utterance of an . . . epithet which engenders offensive feelings in an employee,’ [citation] does not sufficiently affect the conditions of employment to implicate Title VII.... 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.”].) I am not persuaded that a judicial finding that employees were previously subjected to verbal *172harassment in violation of FEHA could justify a prior restraint on expression not amounting to “fighting words.”1
The plurality opinion draws analogies to several United States Supreme Court decisions. None is in point.
Thus, the plurality opinion relies on several decisions involving limited injunctive remedies against the sale or exhibition of obscene materials, including Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436 [77 S.Ct. 1325, 1 L.Ed.2d 1469], Times Film Corp. v. Chicago (1961) 365 U.S. 43 [81 S.Ct. 391, 5 L.Ed.2d 403], Freedman v. Maryland (1965) 380 U.S. 51 [85 S.Ct. 734, 13 L.Ed.2d 649], and Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 [93 S.Ct. 2628, 37 L.Ed.2d 446]. Unlike the language at issue here, obscenity is not within the area of constitutionally protected speech. (Roth v. United States (1957) 354 U.S. 476, 485 [354 U.S. 476, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498].)
The plurality opinion’s analogy to Pittsburgh Press Co. v. Human Rel. Comm’n (1973) 413 U.S. 376 [93 S.Ct. 2553, 37 L.Ed.2d 669] is also unavailing. There, the United States Supreme Court addressed the constitutionality of a restriction on commercial speech in support of an illegal commercial activity. (Id. at pp. 388-389 [93 S.Ct. at p. 2560].) Again, the United States Supreme Court emphasized that the order “[did] not endanger arguably protected speech” and did not require the court “to speculate as to the effect of the publication” in the future. (Id. at p. 390 [93 S.Ct. at p. 2561].) Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753 [114 S.Ct. 2516, 129 L.Ed.2d 593], also relied on by the majority, is inapposite; unlike the speech at issue in Madsen, the speech here is not content-neutral, nor can it be said that the injunction burdens no more speech than necessary, since it forbids any use of particular words.2
By contrast, the injunction at issue constitutes a broad prohibition touching on core protected speech. It applies to words that, although offensive, *173may be used to convey ideas or emotions and are therefore shielded by the First Amendment. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (Texas v. Johnson (1989) 491 U.S. 397, 414 [109 S.Ct. 2533, 2545, 105 L.Ed.2d 342]; Cohen v. California (1971) 403 U.S. 15, 26 [91 S.Ct. 1780, 1788, 29 L.Ed.2d 284] [“[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”].)
Even assuming that the use of derogatory speech can amount to employment discrimination, I disagree that any future use even of slurs, vulgarity, or derogatory epithets in the workplace—even by a person who has previously engaged in employment discrimination—can constitutionally be proscribed. That is because the offensive content and effect of using any one, or more, of a list of verboten words cannot be determined in advance: “The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say. Similarly, it is the content of the utterance that determines whether it is a protected epithet or an unprotected ‘fighting comment.’ ” (Young v. American Mini Theatres (1976) 427 U.S. 50, 66 [96 S.Ct. 2440, 2450, 49 L.Ed.2d 310], fn. omitted.) For this reason, I would hold that the injunction fails to overcome the heavy presumption against the constitutional validity of prior restraints on speech. (Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 317 [100 S.Ct. 1156, 1162, 63 L.Ed.2d 413]; Wilson v. Superior Court (1975) 13 Cal.3d 652, 657 [119 Cal.Rptr. 468, 532 P.2d 116].)3
*174II
But we need look no farther than article I, section 2, subdivision (a), of the California Constitution to resolve this matter: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for abuse of this right. A law may not restrain or abridge liberty of speech or press.” As explained in the majority opinion I authored in Wilson v. Superior Court, supra, 13 Cal.3d at page 658: “A protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press.”
California Constitution, article I, section 2, subdivision (a), plainly permits holding Lawrence and Avis responsible for abuse of the right, but not censorship by way of a prior restraint. “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. . . . 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.” (Dailey v. Superior Court (1896) 112 Cal. 94, 97 [44 P. 458]; Pines v. Tomson (1984) 160 Cal.App.3d 370, 393 [206 Cal.Rptr. 866] [“Although the section does not use the term ‘prior restraint,’ the plain meaning of the first sentence of article I, section 2, subdivision (a) is that ‘sentiments’ are protected from any prepublication sanctions, i.e., from all prior restraints.”].)
As the dissenting opinion in the Court of Appeal below correctly observed: “Punishment for and suppression of speech are two very different things. . . . No California appellate court has ever held . . . that persons can be subjected to prior restraint on speech, and legally forbidden to speak on pain of fine or being sent to jail, for merely making rude or even immoral comments that might have bad effects on the listener.”
*175The plurality opinion’s attempt to construe Dailey—and the California Constitution—narrowly on this point fails. Thus, it relies on People ex rel. Busch v. Projection Room Theatre (1976) 17 Cal.3d 42, 57 [130 Cal.Rptr. 328, 550 P.2d 600], which upheld the constitutionality of an action to abate the sale or display of obscene material as a public nuisance. As I stated at the time, in my view the decision in Busch was incorrect; the public nuisance proceedings at issue failed to pass constitutional muster. (See id., at p. 62 (cone. & dis. opn. of Mosk, J.) [“[S]uch proceedings . . . offend article I, section 2, of the California Constitution which prohibits action that may ‘restrain or abridge liberty of speech or press.’ ”]; see also id., at pp. 63-74 (dis. opn. of Tobriner, J.).) It is also distinguishable: it involved exhibition of specific magazines and films adjudged to be obscene, i.e., to constitute unprotected expression. Nor did the majority therein purport to apply, or even cite, California Constitution, article I, section 2, subdivision (a).
The plurality opinion also relies on Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 [153 Cal.Rptr. 802, 592 P.2d 289], which, like Pittsburgh Press Co. v. Human Rel. Comm’n, supra, 413 U.S. 376, involved restrictions on commercial speech related to illegal activity—using the telephone to solicit acts of prostitution. The activity was found not to involve protected speech within the meaning of the First Amendment. On those grounds, Goldin, too, is distinguishable. Nor, again, did the majority in Goldin even address the free speech protections under article I, section 2, subdivision (a).
Finally, the plurality opinion cites People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 [60 Cal.Rptr.2d 277, 929 P.2d 596], which upheld the validity of an injunction restraining future activities of gang members under the common law nuisance laws. I continue to believe that Gallo was wrongly decided. (See id., at pp. 1132-1148 (dis. opn. of Mosk, J.).) But, in any event, it is unilluminating: the majority in Gallo did not address any question involving prior restraints on speech; nor did Gallo involve any application whatsoever of California Constitution, article I, section 2.4
The plurality express a concern that unless an injunction issues in this matter, plaintiffs will be confined to bringing repetitive lawsuits. I hope that *176would not result. However, a mere policy consideration is of little weight in light of the strong presumption against prior restraints.
In any event, I disagree that the threat of repetitive litigation would be less effective in terms of avoiding future workplace discrimination by Avis than the possibility that an individual supervisor will be jailed for contempt. As the damages action in this matter demonstrates, speech may be subject to strong sanctions under FEHA if it amounts to employment discrimination. Faced with the high costs of defending against such suits—including compensatory damages, attorney fees, and punitive damages—employers like Avis are likely to regard it as a potent remedy indeed.
Ill
For the foregoing reasons, I would reverse the judgment of the Court of Appeal.
“Fighting words”—“those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”—are not safeguarded by the federal Constitution. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572 [62 S.Ct. 766, 769, 86 L.Ed. 1031].) Significantly, plaintiffs conceded that the offensive speech at issue here did not consist of fighting words; the superior court apparently agreed. Nor did the superior court find any “real and immediate threat of future injury” by Lawrence, who had not harassed anyone at Avis since 1992. (See Los Angeles v. Lyons (1983) 461 U.S. 95, 107, fn. 8 [103 S.Ct. 1660, 1668, 75 L.Ed.2d 675] [“The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant.”].) In the absence of a record, we have no basis to conclude otherwise.
Auburn Police Union v. Carpenter (1st Cir. 1993) 8 F.3d 886, discussed at length by the plurality, offers no guidance. In that case, which involved a statute barring solicitation for the benefit of law enforcement officers and organizations, there was no injunction before the court; the United States Court of Appeals for the First Circuit observed that without the *173concrete example of a particular injunction, it could not determine whether the prior restraint doctrine had been violated. {Id. at p. 904.) The plurality also summarily cite several federal and state law cases upholding injunctions; with a single exception (Robinson v. Jacksonville Shipyards, Inc. (M.D.Fla. 1991) 760 F.Supp. 1486), none involves a comparable injunction against otherwise protected speech in the workplace. Significantly, Robinson has been widely criticized. (See, e.g., Comment, Freedom of Speech and Workplace Harassment (1992) 39 UCLA L.Rev. 1791, 1818 [“Thus, in the recent case of [Robinson], the district court was wrong. . . Karner, Political Speech, Sexual Harassment, and a Captive Workforce (1995) 83 Cal.L.Rev. 637, 665, fn. 168 [“[T]he Robinson court ignored basic [First Amendment] doctrine in reaching this conclusion.”].) Nor do any of the cases cited by the plurality analyze the question in light of article I, section 2, subdivision (a), of the California Constitution, which, as discussed post, affords broader protection against prior restraints on speech.
I am also unpersuaded by the concurring opinion’s attempt to create an exception to the the prohibition against prior restraints in the case of workplace discrimination using “strands of analysis” from United States Supreme Court precedents. The logic of the concurring opinion unravels upon closer scrutiny. Thus, R.A.V. v. St. Paul (1992) 505 U.S. 377 [112 S.Ct. *1742538, .120 L.Ed.2d 305] does not, as the concurring opinion asserts, state or imply that any use of derogatory speech in the workplace is unprotected or that a content-based prior restraint such as the one at issue here would pass constitutional muster; nor do the high court’s decisions suggest that the workplace may be regarded as a public forum or employees a “captive audience.” The concurring opinion’s analysis under the California Constitution is equally unpersuasive. Again, in the absence of any sound constitutional basis for exempting this injunction from the restriction against prior restraints, the concurring opinion ignores our precedents in point and, instead, hopelessly attempts to construct a coherent theory from random “strands” of doctrine taken from cases about equal protection, captive audiences, time, place, and manner restrictions, and racial discrimination. Our goal must be to construe constitutional provisions with careful regard to precedent; otherwise the public has little assurance that the court’s decisions will not be influenced by its members’ personal policy views. (See People v. Jefferson (1999) 21 Cal.4th 86, 103-104 [86 Cal.Rptr. 893, 980 P.2d 441] (dis. opn. of Werdegar, J.).)
The First Amendment issue addressed in Gallo involved not free speech, as the plurality here erroneously suggest, but freedom of association, i.e., an injunction against “ ‘[standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant’ ” or any other gang member. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1110, italics omitted.) The underlying injunction issued by the superior court in Gallo also prohibited the use of words, phrases, physical gestures, or symbols, or engaging in other forms of communication that described the gang; it also forbade the wearing of clothing bearing the name or letters of the gang. (See id, at p. 1136, fn. 3 (dis. opn. of Mosk, J.) [quoting injunction].) Those provisions of the injunction, however, were stricken as unconstitutional by the Court of Appeal, and its holding on this point was not challenged on review by this court.