Judges Overturn Arizona’s ‘English-Only’ Law : Courts: Voter-approved statute applied to state employees doing government business. Appeals panel rules it violates 1st Amendment.

Declaring that “the diverse and multicultural character of our society is widely recognized as . . . among our greatest strengths,” a federal appeals court in San Francisco struck down an Arizona law that ordered state employees performing government business to speak and write only in English.

USC law professor Erwin Chemerinsky said the ruling is quite significant because “it is the first decision overturning a state English-only initiative.” He said Wednesday’s decision harked back to a landmark 1923 U.S. Supreme Court ruling that toppled a post-World War I Nebraska law prohibiting the teaching of German in public schools.

In a 3-0 decision, the U.S. 9th Circuit Court of Appeals ruled that the “official English” statute, enacted into law by voters as Article 28 of the state Constitution in 1988, violates the 1st Amendment.

Circuit Judge Stephen Reinhardt wrote that the court recognizes “the importance of promoting democracy and national unity and encouraging common language as a means of encouraging such unity,” the two primary justifications advanced by the law’s proponents.

“We cannot agree, however, that Article 28 is in any way a fair, effective, or appropriate means of promoting those interests. As we have learned time and again in our history, the state cannot achieve unity by prescribing orthodoxy.”

Judges Betty B. Fletcher and Thomas Tang joined in the opinion.

“The direct effect of the provision is not only to restrict the rights of all state and local government servants in Arizona, but also to severely impair the free speech interests of a portion of the populace they serve,” the judges said.

“It’s a very bright day for all Arizonans who believe in free speech, not just our Hispanic community,” said Phoenix attorney Robert J. Pohlman, who represented the people challenging the law. “We always had confidence that the law would be struck down as overbroad.”

Barnaby W. Zall, a Washington attorney who represented Arizonans for Official English, said he was disappointed in the ruling: “We believe Article 28 of the Arizona Constitution . . . doesn’t violate the 1st Amendment rights of Arizona employees.”

Zall noted that there are 19 states with official English language laws. “This decision will obviously have some effect on those laws or on the passage of new laws.” But he added that it was too early to tell how broad the impact would be.

Two of the 19 states--California and Hawaii--are in the 9th Circuit and therefore covered by the ruling. A section was added to the California Constitution by ballot initiative in 1986 establishing English as the official language of the state. However, Wednesday’s ruling refers to the provision as “primarily symbolic.” It imposes no bar on the use of other languages and does not affect their use in the functioning of state government.

The ruling will not affect private employers, Chemerinsky noted. In June, the U.S. Supreme Court cleared the way for private employers to enforce English-only rules for their bilingual workers.

In a 7-2 vote, the high court refused to hear an appeal of a decision in a San Francisco case that held that requiring workers to speak English on the job does not violate federal anti-discrimination laws.

In that case, the Supreme Court left in place a 9th Circuit decision, which concluded that where workers can speak both English and Spanish, requiring them to converse only in English at work may be an “inconvenience for some” but it “does not impose a burden significant enough to amount to the denial of equal opportunity.”

Chemerinsky said Wednesday’s decision is clearly distinct from the earlier 9th Circuit case because private employers have the right to impose greater restrictions on the speech of their employees than the government can.

The Arizona law was challenged two days after it was passed by voters. Maria-Kelley F. Yniguez, an insurance claims adjuster in Arizona’s Risk Management Division, sued in federal court in Phoenix, contending that the law violated her 1st Amendment rights by making her “afraid to speak Spanish at work.”

Yniguez said she needed to speak Spanish to deal with people who filed medical malpractice claims against the state. Prior to the law’s passage, Yniguez communicated in Spanish with monolingual Spanish-speaking claimants, and in a combination of English and Spanish with bilingual claimants. Because state employees who fail to obey the Arizona Constitution are subject to employment sanctions, Yniguez ceased speaking Spanish on the job after the law passed.

Joining her as a plaintiff in the lawsuit was Jaime P. Gutierrez, a state senator from Tucson. Gutierrez said that if the law were upheld, he would be violating his oath to uphold the Arizona Constitution every time he spoke to a constituent in Spanish.

U.S. District Judge Paul G. Rosenblatt in Phoenix found in their favor and issued an injunction prohibiting the law from going into effect, setting the stage for a lengthy appeal process leading to Wednesday’s ruling.

The three-judge panel noted that the Supreme Court previously accorded 1st Amendment status to choice of language in a very different context--a case overturing the conviction of a California man who uttered an obscenity about the draft during the Vietnam War. The Supreme Court ruled in that case that California could not excise “one particularly scurrilous epithet from public discourse.”

“Under Article 28, of course, the state is not singling out one word for repression, but rather entire vocabularies. Moreover, the languages of Cervantes, Proust, Tolstoy and Lao-Tze, among others, can hardly be described as ‘scurrilous,’ ” Reinhardt wrote.

The court said there was no basis in the record to support proponents’ assertion that any broad societal interest, such as “protecting democracy by encouraging ‘unity and political stability,’ ” would be served by the law. Moreover, the judges found that there would be negative consequences if the law were allowed to stand.

“The practical effects of (the law’s) de facto bar on communications by or with government employees are numerous are varied. For example, monolingual Spanish-speaking residents of Arizona cannot, consistent with the article, communicate effectively with employees of a state or local housing office about a landlord’s wrongful retention of rental deposit, nor can they learn from clerks of the state court about how and where to file small claims court complaints.”

The judges said the law’s impact would be “especially egregious because it is not uniformly spread over the population, but falls almost entirely upon Hispanic and other national origin minorities.”

They added: “Since language is a close and meaningful proxy for national origin, restrictions on the use of languages may mask discrimination against specific national origin groups, or more generally, conceal nativist sentiment.”