I dissent.
Constitutional free speech guarantees are in undeniable tension, if not conflict, with the statutory rights of employees to be free from discriminatory verbal harassment that creates a hostile work environment. Although this tension has generated lively debate in scholarly legal journals, the United States Supreme Court has yet to address the issue. This case presents one aspect of the problem: the use of injunctions prohibiting certain kinds of future speech, on the basis of its content, as a remedy for hostile environment employment discrimination.
As I will explain, the particular content-based injunction at issue here, both as drafted by the trial court and as modified by the Court of Appeal, is invalid under the free speech guarantees of both the federal and state Constitutions because the record fails to establish that an injunction restricting future speech is necessary to prevent a recurrence of the wrongful acts of employment discrimination. Moreover, even assuming a need for some content-based speech restriction could be shown, the injunction here is invalid because it is not narrowly drawn to target only the prohibited discrimination.
These defects are not curable. In particular, the Court of Appeal’s proposal to amend the injunction by adding a list of forbidden “bad words” will not make the injunction any less an abridgment of the right of free speech. Indeed, I question whether any injunction prohibiting workplace expression of particular views, however abhorrent those views, can be reconciled with *177constitutional free speech guarantees: “[U]nder our system of government we may not prohibit the dissemination of views simply because they are controversial, distasteful, or disturbing. To sanction such a prohibition ‘would be a complete repudiation of the philosophy of the Bill of Rights.’ [Citation.]” (Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10 Cal.4th 1009, 1027 [43 Cal.Rptr.2d 88, 898 P.2d 402] (dis. opn. of Kennard, J.).)
I
Seventeen employees brought this action claiming employment discrimination in violation of the state Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). They named as defendants their common employer, Avis Rent A Car System, Inc. (Avis), and 10 Avis employees, one of whom was John Lawrence. Of relevance to the issue raised here, plaintiffs alleged that Avis had employed them as drivers and that Lawrence, who was assigned to Avis’s service station at the San Francisco International Airport, created a hostile work environment by verbally harassing and demeaning them “on the basis of their race, national origin and lack of English language skills.” They also alleged that Kathy Black, an Avis supervisor, had conducted a discriminatory investigation of an alleged theft.
For reasons not disclosed by the appellate record, the case proceeded to trial as to only 12 of the 17 plaintiffs. By special verdicts, the jury found that Lawrence had unlawfully harassed and discriminated against four of these plaintiffs, three of whom Black had also discriminated against. With respect to three of these four plaintiffs, the jury found that Avis knew or should have known of Lawrence’s conduct and failed to stop it. The jury awarded $25,000 in emotional distress damages to each of the three plaintiffs against whom both Lawrence and Black had discriminated, but it awarded no damages to the plaintiff against whom Lawrence alone had discriminated.
After the jury returned these special verdicts, the trial court decided to grant injunctive relief. Interpreting the special verdicts as findings that Lawrence had “engaged in acts of harassment so continual and severe as to alter the working conditions” for the four plaintiffs, the court found “a substantial likelihood based on his actions that he will do so in the future unless restrained.” Referring to Lawrence, the court said that “[i]f he has done it four times against four Latinos, there is a substantial likelihood that he will do it again . . . .” But neither the plaintiff nor the court disputed the representations of defendants’ attorney that only one of the plaintiffs still worked for Avis in San Francisco and that Lawrence had not engaged in any harassment during the pendency of the lawsuit. Defendants Avis and *178Lawrence objected that the proposed injunction was an unconstitutional abridgment of their free speech rights, but the court overruled these objections.
The trial court found that Lawrence’s discriminatory acts had consisted of offensive touching and the utterance of derogatory racial or ethnic epithets. As here relevant, the trial court granted a permanent injunction prohibiting Lawrence “from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of [Avis]” and also “from any uninvited intentional touching of said Hispanic/Latino employees, as long as he is employed by [Avis] in California.” The injunction prohibited Avis from “allowing defendant John Lawrence to commit any [such] acts . . . under circumstances in which it knew or should have known of such acts . . ."
Lawrence and Avis appealed from the portion of the judgment granting the permanent injunction. The Court of Appeal found the injunction over-broad insofar as it restricted Lawrence’s activities other than at the workplace, and it found the injunction vague in its prohibition against “derogatory racial or ethnic epithets.” To cure these defects, the Court of Appeal reversed and remanded to permit the trial court to redraft the injunction to limit its scope to the workplace and to add “an exemplary list of prohibited derogatory racial or ethnic epithets, specifying epithets such as those actually used in the workplace by Lawrence.”
To determine whether the injunction, even as limited by the Court of Appeal, is an unconstitutional abridgment of constitutional free speech rights, this court granted the petition for review filed by defendants Avis and Lawrence.
II
The First Amendment to the federal Constitution, made applicable to the states by the Fourteenth Amendment (Near v. Minnesota (1931) 283 U.S. 697, 732 [51 S.Ct. 625, 637, 75 L.Ed. 1357]), declares that “Congress shall make no law . . . abridging the freedom of speech . . . .” This First Amendment free speech guarantee restricts not only the power of legislatures to enact laws of general applicability but also the authority of courts to issue injunctions as remedies for violations or threatened violations of a legislative or judicial decree. (Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 764 [114 S.Ct. 2516, 2524, 129 L.Ed.2d 593].) Indeed, because injunctions “carry greater risks of censorship and discriminatory application than do general ordinances,” the United States Supreme Court *179requires “a somewhat more stringent application of general First Amendment principles” to injunctions restricting speech. (Id. at pp. 764-765 [114 S.Ct. at p. 2524].)
An injunction that regulates speech on the basis of its topic is termed a content-based regulation and is presumptively invalid. (Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 828 [115 S.Ct. 2510, 2516, 132 L.Ed.2d 700]; R.A.V. v. St. Paul (1992) 505 U.S. 377, 382 [112 S.Ct. 2538, 2542-2543, 120 L.Ed.2d 305].) An injunction that regulates speech on the basis of the particular views or biases that the speaker expresses about a topic is termed a viewpoint regulation and is likewise presumptively invalid, because the United States Supreme Court regards viewpoint discrimination as “an egregious form of content discrimination.” (Rosenberger v. Rector and Visitors of Univ. of Va., supra, at p. 829 [115 S.Ct. at p. 2516].)
An injunction that regulates speech on the basis of its content or viewpoint is scrutinized more strictly than a content-neutral injunction. (Madsen v. Women’s Health Center, Inc., supra, 512 U.S. 753, 762-763 [114 S.Ct. 2516, 2523].) If an injunction is based on content or viewpoint, the proponent ordinarily must show both that the injunction is “necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” (Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 45 [103 S.Ct. 948, 955, 74 L.Ed.2d 794]; see Madsen v. Women’s Health Center, Inc., supra, at pp. 763-764 [114 S.Ct. at p. 2524].)
The injunction at issue here is based on both content and viewpoint. It is based on content because it prohibits speech for its communicative impact— its potential to offend the person who hears it. (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 867-868 [117 S.Ct. 2329, 2342-2343, 138 L.Ed.2d 874]; Forsyth County v. Nationalist Movement (1992) 505 U.S. 123, 134 [112 S.Ct. 2395, 2403-2404, 120 L.Ed.2d 101]; Texas v. Johnson (1989) 491 U.S. 397, 411-412 [109 S.Ct. 2533, 2543-2544, 105 L.Ed.2d 342].) It is based on viewpoint because it prohibits the utterance of “derogatory racial or ethnic epithets,” words that convey and embody a particular bias. (R.A.V. v. St. Paul, supra, 505 U.S. 377, 391-393 [112 S.Ct. 2538, 2547-2548] [state may not prohibit only those fighting words expressing a viewpoint of racial intolerance].)
The state may prohibit racial or ethnic discrimination in housing and employment. Indeed, it has a compelling interest in doing so. (See R.A.V. v. St. Paul, supra, 505 U.S. 377, 395 [112 S.Ct. 2538, 2549]; Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 273 [284 *180Cal.Rptr. 718, 814 P.2d 704] (dis. opn. of Kennard, J.).) Although the state may adopt various means to combat racial and ethnic bias in general, antidiscrimination measures collide with the First Amendment when they attempt to combat racial and ethnic bias by “silencing speech on the basis of its content” (R.A.V. v. St. Paul, supra, 505 U.S. 377, 392) or by “handicap[ping] the expression of particular ideas” (id. at p. 394 [112 S.Ct. 2538, 2548]).. The proper test to determine the validity of the content- and viewpoint-based injunction at issue here is whether its restriction on speech is necessary to serve a compelling state interest and narrowly drawn to achieve that end. (Perry Ed. Assn. v. Perry Local Educators’ Assn., supra, 460 U.S. 37, 45 [103 S.Ct. 948, 955].)
The state has a compelling interest in eradicating invidious employment discrimination (see R.A.V. v. St. Paul, supra, 505 U.S. 377, 395 [112 S.Ct. 2538, 2549-2550), and the injunction here surely promotes that interest (see ibid.), but plaintiffs have not shown that the injunction here is necessary to serve that interest. An award of damages for proven employment discrimination is a presumptively adequate and content-neutral alternative, particularly for a first time offender. So far as the record shows,1 this is the first case in which damages have been awarded against Lawrence or Avis for employment discrimination. Only one Avis employee, Lawrence, was found to have caused an abusive work environment by using racial or ethnic slurs, and he did so as to only four of the original seventeen plaintiffs. The harassment was confined to a limited time period and ceased after plaintiffs filed this lawsuit. Thus, there is no basis upon which to conclude that damages will not have the desired deterrent effect. (See Intern. Soc. for Krishna Consciousness v. Eaves (5th Cir. 1979) 601 F.2d 809, 833 [rejecting the view that a speech restraint may be based on the generalization that one who has violated a law once is likely to do so again].) The trial court’s assertion that an injunction is necessary is entirely speculative.
Even assuming for the sake of argument that injunctive relief were necessary, the record does not demonstrate the necessity of an injunction restricting speech. The trial court found that Lawrence’s harassment had consisted of both offensive touching and the use of racial and ethnic epithets. The jury’s special verdicts do not specify whether the employment discrimination findings were based on the offensive touching, the epithets, or a combination of the two. The record contains no finding by the jury or by the *181trial court that the utterance of epithets alone created a hostile work environment for any Avis employee. Lawrence and Avis do not challenge the portion of the injunction prohibiting uninvited intentional touching. Nothing' in the record shows that enforcement of this portion of the injunction, and the portion of the injunction concerning the nonspeech activities of Avis supervisor Kathy Black, will not be effective to prevent a recurrence of the hostile environment employment discrimination.
Nor is the injunction narrowly drawn to prevent a recurrence of a hostile work environment for plaintiffs. For First Amendment purposes, a regulation is narrowly drawn “if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” (Frisby v. Schultz (1988) 487 U.S. 474, 485 [108 S.Ct. 2495, 2503, 101 L.Ed.2d 420].) “A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” (Ibid.)
Here, the injunction prohibits Lawrence from addressing epithets to any Hispanic employee, not just the four plaintiffs (only one of whom still works for Avis) whom Lawrence was found to have harassed. This is not a class action, a criminal prosecution, or a civil enforcement action by government; it is a civil action by individual private plaintiffs. I am aware of no authority permitting a trial court, in a civil action by individual plaintiffs, to award equitable relief in favor of persons who are strangers to the proceeding.
Also, the injunction prohibits Lawrence not only from addressing racial and ethnic epithets to Hispanic employees, but also from using those epithets as descriptive of these employees. The latter prohibition, because it applies even to statements made outside the hearing and knowledge of any Hispanic employee, encompasses speech unlikely to contribute in any way to a hostile work environment for plaintiffs. Thus, the injunction is an invalid infringement of free speech rights because it prohibits expressive activity that is not the precisely targeted evil of employment discrimination against plaintiffs.
Even if the injunction were narrowed to prohibit Lawrence only from directing epithets at the workplace to the particular Avis employees he previously harassed, it would still prohibit more speech than necessary. As the Chief Justice concedes, “not every utterance of a racial slur in the workplace violates the FEHA.” (Plur. opn., ante, at p. 130.) An isolated use of an epithet, however odious, does not produce a hostile work environment. To establish employment discrimination by verbal harassment, the employee must show that “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive *182working environment ....’” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct. 367, 370, 126 L.Ed.2d 295] [enunciating this standard for hostile environment employment discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842] [adopting same standard for claims under FEHA].) An injunction prohibiting every utterance of a racial or ethnic insult in the workplace, not just utterances that actually produce a hostile work environment, is not narrowly drawn to serve the state’s compelling interest in eliminating employment discrimination.
“[Wjhether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” (Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 23 [114 S.Ct. 367, 371.) For this reason, I question whether any injunction prohibiting specifically identified speech, without regard to its frequency, its context, or its effect on any employee, could survive the strict scrutiny the First Amendment requires for injunctions restricting speech on the basis of content and viewpoint.
Also, as Justice Mosk points out in his dissent, a content-based injunction restricting workplace speech would appear necessarily and invariably to be an invalid prior restraint. “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.’ . . . [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], italics omitted.) The injunction at issue here certainly fits this definition of a prior restraint.
The First Amendment “accords greater protection against prior restraints than it does against subsequent punishment for a particular speech.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 589 [96 S.Ct. 2791, 2817, 49 L.Ed.2d 683] (conc. opn. of Brennan, J.).) The particular disfavor for prior restraints is based on “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, 559 [95 S.Ct. 1239, 1246-1247, 43 L.Ed.2d 448], italics in original.) Although not invalid per se, prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.” (Nebraska Press Assn. v. Stuart, supra, 427 U.S. 539, 559 [96 S.Ct. 2791, 2803].)
*183A prior restraint is subject to a “heavy presumption against its constitutional validity.” (Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70 [83 S.Ct. 631, 639, 9 L.Ed.2d 584].) Anyone seeking to defend a prior restraint “thus carries a heavy burden of showing justification for the imposition of such a restraint.” (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419 [91 S.Ct. 1575, 1578, 29 L.Ed.2d 1].) Although the United States Supreme Court has not stated precisely what this “heavy burden” entails, it apparently includes at least a showing that the prohibited speech is “overwhelmingly likely” to be subject to regulation without violating the First Amendment (Intern. Soc. for Krishna Consciousness v. Eaves, supra, 601 F.2d 809, 833) and that it will “surely result in direct, immediate, and irreparable damage” (New York Times Co. v. United States (1971) 403 U.S. 713, 730 [91 S.Ct. 2140, 2149, 29 L.Ed.2d 822] (conc. opn. of Stewart, J.); see also Tribe, American Constitutional Law (2d ed. 1988) § 12-36, pp. 1045-1051).
Because isolated remarks seldom, if ever, cause a hostile work environment, and because determining the existence of a hostile work environment requires an examination of all relevant circumstances, it is impossible to demonstrate in advance that any particular workplace speech will create a hostile work environment (and thus potentially be subject to regulation without violating the First Amendment), much less that it will produce direct, immediate, and irreparable injury. Accordingly, the conclusion seems inescapable that injunctions prohibiting any future offensive workplace speech on the basis of content and viewpoint are invariably and necessarily unconstitutional prior restraints on speech.
in
The Chief Justice’s plurality opinion does not treat the injunction at issue here as a prior restraint, nor does it apply the strict test that the United States Supreme Court has mandated for content- and viewpoint-based injunctions. It suggests various reasons why a less rigorous test is appropriate, and plaintiffs and amici curiae offer other reasons. I consider these reasons in turn.
Preliminarily, I note that an otherwise content-neutral statute or injunction may prohibit speech falling within certain narrowly defined categories— such as obscenity, defamation, and “fighting words”—without meeting any separate compelling interest test. (See Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572 [62 S.Ct. 766, 769, 86 L.Ed. 1031].) The “fighting words” category is quite narrow (see Gooding v. Wilson (1972) 405 U.S. 518 [92 S.Ct. 1103, 31 L.Ed.2d 408]), however, and it is conceded that the speech at *184issue here is outside this category. Nor is any contention advanced that the speech at issue here may be prohibited as obscene or defamatory. Also, for purposes of deciding what First Amendment test to apply, it makes no difference that a content-based injunction prohibits speech at only one location, here the workplace. (See Reno v. American Civil Liberties Union, supra, 521 U.S. 844, 880 [117 S.Ct. 2329, 2349] [“ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place’ ”]; Consolidated Edison Co. v. Public Serv. Comm’n (1980) 447 U.S. 530, 541, fn. 10 [100 S.Ct. 2326, 2335, 65 L.Ed.2d 319] [“we have consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternate means of expression”].)
Under what some commentators have termed the “captive audience doctrine,” the United States Supreme Court in a few instances has acknowledged the legitimate interests of persons who would prefer to avoid exposure to unwelcome speech but are unable to do so. (See, e.g., Frisby v. Schultz, supra, 487 U.S. 474, 487 [108 S.Ct. 2495, 2503-2504]; Lehman v. City of Shaker Heights (1974) 418 U.S. 298 [94 S.Ct. 2714, 41 L.Ed.2d 770].) Plaintiffs here argue that because employees are generally unable to avoid exposure to the offensive workplace speech of coworkers and supervisors, a court should be permitted to enjoin all offensive discriminatory speech, regardless of its effect on any particular employee, at any workplace where hostile environment employment discrimination has been demonstrated.
This argument reads more into the captive audience doctrine than the decisions of the United States Supreme Court permit. Under those decisions, a court may impose a content-based restriction to protect unwilling listeners from offensive speech only in the “narrow circumstances” where “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure” and “ ‘substantial privacy interests are being invaded in an essentially intolerable manner.’ ” (Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 209-210 [95 S.Ct. 2268, 2272-2273, 45 L.Ed.2d 125].) Even when listener “captivity” is demonstrated, a court may not prohibit all insulting, disturbing, or offensive speech, but only speech that invades a substantial interest in an intolerable manner. An employee surely has a substantial interest in a work environment that is not hostile or abusive, but this interest is invaded in an intolerable manner only when harassing speech actually produces a hostile or abusive environment. Because the injunction here prohibits even isolated use of racial and ethnic slurs having no demonstrable effect on any plaintiff, it cannot be saved by invoking the captive audience doctrine.
Moreover, in one important respect the work environment is different from other captive audience situations that the United States Supreme Court *185has considered: While it is true that during working hours an employee is not free to go elsewhere to avoid hearing a coworker’s offensive speech, it is equally true that the coworker is not free to go elsewhere to express his or her views. Although the United States Supreme Court has upheld content-neutral prohibitions on residential picketing (see Frisby v. Schultz, supra, 487 U.S. 474, 487 [108 S.Ct. 2495, 2503-2504] [upholding ordinance regulating residential picketing]; but see also Carey v. Brown (1980) 447 U.S. 455, 470-471 [100 S.Ct. 2286, 2295, 65 L.Ed.2d 263] [striking down content-based residential picketing ordinance]), it has never applied the captive audience doctrine to, for example, a content-based regulation prohibiting homeowners from posting signs offensive to their neighbors, such as the ordinance at issue in R.A.V. v. St. Paul, supra, 505 U.S. 377. (See also City of Ladue v. Gilleo (1994) 512 U.S. 43 [114 S.Ct. 2038, 129 L.Ed.2d 36] [holding that ordinance banning almost all residential signs violated First Amendment].) If the captive audience doctrine has any application to the work environment, it must be applied in a manner that acknowledges and accommodates the legitimate rights of both the captive speaker and the captive listener. (See Strauss, Redefining the Captive Audience Doctrine (1991) 19 Hastings Const. L.Q. 85, 116-119 [suggesting consideration of three factors: the extent of the listener’s “captivity,” the seriousness of the threatened harm to the unwilling listener, and the degree to which restrictions burden the speaker’s legitimate First Amendment interests].) A blanket prohibition on offensive epithets, regardless of the effect on any listener, surely gives insufficient consideration to the legitimate speech interests of the captive speaker.
In a footnote containing its only reference to this dissent, the Chief Justice’s plurality opinion cites two federal appellate decisions for the proposition “when a repeated course of conduct has been found to constitute a nuisance or unlawful employment practice, a court is authorized to enjoin future individual acts that are likely to continue or perpetuate the nuisance or unlawful practice.” (Plur. opn., ante, at p. 146, fn. 9.) But neither of the cited decisions addresses any issue under the First Amendment. (See People v. Scheid (1997) 16 Cal.4th 1, 17 [65 Cal.Rptr.2d 348, 939 P.2d 748] [an appellate opinion is not authority on issues not considered].) I agree that when free speech concerns are not implicated, courts have broad equitable powers to issue injunctions to halt proven patterns of illegal activity. For this reason, I do not question the portion of the injunction here prohibiting Lawrence from engaging in offensive touching, because this portion of the injunction does not restrict speech. But the portion of the injunction prohibiting Lawrence from using offensive epithets does restrict speech, and it does so on the basis of content and viewpoint. As I have explained, the First Amendment, as authoritatively construed by the United States Supreme *186Court, treats such injunctions as presumptively invalid and requires courts to subject them to an exacting form of scrutiny that this injunction cannot withstand.
Insofar as he deigns to consider the First Amendment at all, the Chief Justice may be understood to argue that once a court has fully and fairly determined that a person has engaged in speech that contributed to a hostile work environment for a particular employee, a court may, without violating the First Amendment, prohibit that person not only from causing the same harm to the same employee by the same speech, but also from engaging in any similar speech that might cause similar harm to any similar employee. The Chief Justice suggests that an injunction is not an invalid prior restraint if it is remedial in this sense.
Isolated remarks by individual justices of the United States Supreme Court suggest there may be some sort of “remedial injunction” exception to the general prohibition against prior restraints. (See, e.g., Madsen v. Women’s Health Center, Inc., supra, 512 U.S. 753, 778-779 [114 S.Ct. 2516, 2531] (conc. opn. of Souter, J.); but see also id. at p. 794, fn. 1 [114 S.Ct. at p. 2539] (cone, and dis. opn. of Scalia, J.) [questioning whether judicial abridgment of First Amendment rights may be imposed as a sanction for misconduct].) But the high court’s decisions do not support the broad proposition that viewpoint-based remedial injunctions are exempt from strict First Amendment scrutiny simply because they are issued against a person who has once been found to have engaged in speech that produced or contributed to a hostile work environment.
The Chief Justice here seems to rely in particular on Pittsburgh Press Co. v. Human Rel. Comm’n (1973) 413 U.S. 376 [93 S.Ct. 2553, 37 L.Ed.2d 669], in which the high court upheld an injunction prohibiting commercial speech proposing unlawful commercial transactions. A newspaper had segregated its “help wanted” classified advertisements into separate columns for men’s jobs and women’s jobs. The injunction prohibited this practice as violating a local antidiscrimination ordinance. Rejecting a claim that the injunction was an invalid prior restraint on speech, the court reasoned that the ordinance prohibiting segregation of employment advertisements on the basis of sex was itself a valid prohibition of sexual discrimination, that the injunction went into effect only after a full and final determination that the newspaper had violated the ordinance, and that the injunction did no more than prohibit the very conduct determined to be unlawful. (Id. at pp. 389-390 [93 S.Ct. at p. 2561].) Because the injunction’s prohibition extended only to commercial speech already determined to be unprotected by the First Amendment, and because this determination did not turn on the publication’s *187actual effect on particular jobseekers, the court observed that “this is not a case in which the Court is asked to speculate as to the effect of publication.” (Id. at p. 390 [93 S.Ct. at p. 2561].)
Here, by contrast, the speech at issue is not commercial speech, and the determination of employment discrimination does turn on the effect of the prohibited speech on particular employees, because racial and ethnic slurs in the workplace cause employment discrimination only if they have the effect of producing a hostile work environment, which in turn depends upon, among other things, the subjective emotional impact of the speech on the employees claiming discrimination. Because a finding of hostile environment discrimination turns on the effect of particular speech, and because this court cannot know in advance what effect future speech will have, this court is asked to speculate as to the effect of the expression that the injunction prohibits.
To take a different example, if a newspaper has maliciously published a defamatory statement about a public figure, as determined by a jury after a full and fair trial, some (but not all) courts would permit issuance of an injunction prohibiting the newspaper from again publishing the very same defamatory statement. (See Kramer v. Thompson (3d Cir. 1991) 947 F.2d 666, 675-676 [discussing various appellate decisions on this point].) To my knowledge, however, no court has ever so much as suggested that in this situation a court could enjoin the newspaper from publishing other derogatory statements about the same public figure, on the theory that these statements might prove to be defamatory and their prohibition would serve a remedial purpose.
To take another example that the high court has specifically addressed, once a movie theater has shown a film that is obscene, as determined by a jury following a full and fair trial, a trial court may thereafter enjoin the theater from exhibiting that film (Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 54-55 [93 S.Ct. 2628, 2633-2634, 37 L.Ed.2d 446]), but it may not enjoin the theater from exhibiting other films based on a court’s preliminary determinations that they might be obscene. (Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 311 [100 S.Ct. 1156, 1153-1159, 63 L.Ed.2d 413].) Rather, a final adjudication of obscenity is required before a court may enjoin exhibition of a film.
Speech having only the potential to cause hostile environment employment discrimination deserves at least as much protection as speech that is potentially obscene or defamatory, two types of speech that are categorically prescribable under the First Amendment. An employer who has engaged in *188or permitted discriminatory verbal harassment that produced a hostile work environment, as determined by a jury following a full and fair trial, may not thereafter be enjoined from engaging in or permitting similar offensive speech on the theory that it might again produce a hostile work environment. Any injunction that restricts speech on the basis of viewpoint, even one issued to remedy past discrimination and to prevent its recurrence, must narrowly target the evil of employment discrimination and not prohibit more speech than necessary.
IV
Article I, section 2, of the California Constitution declares: “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.” I agree with Justice Mosk that, for the reasons cogently stated in part II of his dissenting opinion, the injunction at issue here violates our state constitutional free speech guarantee, which is “more definitive and inclusive” than the federal provision. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658 [119 Cal.Rptr. 468, 532 P.2d 116].)
V
Employees expect and deserve effective protection against invidious discrimination at work. Federal and state statutes provide this protection. But when the alleged discrimination consists of verbal harassment by a coworker, the statutory right to equal employment opportunity comes into conflict with constitutional free speech guarantees. Employees do not surrender constitutional free speech rights when they go to work. “[T]o wholly exclude workplace speech from the realm of the First Amendment would immeasurably impoverish the freedom of expression in this society. For many people, there is no other time or place in their lives in which they can talk about public issues, personal problems, and spiritual concerns with individuals from diverse backgrounds and perspectives.” (Estlund, The Architecture of the First Amendment and the Case of Workplace Harassment (1997) 72 Notre Dame L.Rev. 1361, 1375; see also Comment, Political Speech, Sexual Harassment, and a Captive Workforce (1995) 83 Cal.L.Rev. 637, 646 [“it is arguable that today more political speech occurs at the workplace than in the public square”].) And, as Justice Holmes reminds us, “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” (Abrams v. United States (1919) 250 U.S. 616, 630 [40 S.Ct. 17, 22, 63 L.Ed. 1173] (dis. opn. of Holmes, J.).)
*189Our employment discrimination law attempts to resolve the conflict by permitting an employee to recover damages for discriminatory verbal harassment, but only if, viewed against the totality of.the circumstances, the harassment is so severe or pervasive as to create a hostile or abusive work environment. Although some have questioned whether this standard sufficiently protects freedom of speech (see, e.g., Comment, Freedom of Speech and Workplace Harassment (1992) 39 UCLA L.Rev. 1791), the standard’s validity is not at issue here. What is at issue is whether a trial court, after a finding of hostile environment employment discrimination, may upset the legislatively defined balance, tilting it decidedly to one side, by prohibiting future use of even isolated epithets without regard to their effect on any employee. Unlike the plurality, I would hold that an injunction so drawn violates the free speech guarantees of the state and federal Constitutions. For this reason, I dissent.
I disagree with the plurality that the appellate record, which includes the pleadings, the jury’s special verdicts, and all postverdict proceedings relating to issuance of the injunction, is inadequate to determine the constitutionality of the injunction or requires this court to indulge in presumptions, belied by the record before us, that the injunction is necessary and narrowly tailored.