You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws

Free speech really isn't as free as some people make it out to be. In fact, important and interesting ideas are stifled and suppressed too much of the time these days. In You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, David E. Bernstein focuses upon the myriad of ways in which antidiscrimination laws that were once enacted for the benevolent purpose of remedying past injustices of racial discrimination have since come to be used by government agencies, campus PC crowds, and radical egalitarian interest groups to suppress the fundamental, constitutional rights of people to speak, assemble, associate and partake of their livelihoods. Bernstein, a respected law professor at George Mason University School of Law and member of the popular Volokh Conspiracy blog, draws together cases ranging from claims of "hostile environment" in the workplace to those involving campus speech codes, providing a powerful expose of the threats to free speech that are posed by many antidiscrimination laws today. An amorphous and often overly expansive notion of "discrimination" is often the basis of far-fetched antidiscrimination claims. As Bernstein writes, "The concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination." Indeed, during the Clinton Administration the Department of Housing and Urban Development-cited by Bernstein as one of the leading violators of free speech rights-went so far as to try to regulate real estate advertising to prevent what it saw as "discriminatory advertising." In a number of instances, HUD argued that the people pictured or drawn in newspaper ads for housing had to accurately reflect the racial diversity of the population it served or the real estate company seeking to advertise would be in violation. Keep in mind that these rules operated regardless of the intent of the defendants, regardless of the actual housing practices the engaged in. It was merely enough that someone might think the company placing the ad was sending an unwelcoming message. But it doesn't even stop there: the shadow cast upon people and employers by the mere threat of lawsuits and the accompanying inconveniences and financial costs is enough to make many people buckle into political correctness. Even a flimsy cased built upon a flimsy standard can result in serious damage to defendants and place a chilling effect on their speech rights. Bernstein does an excellent job of discussing the importance of free association as protected by the First Amendment's Speech Clause. Association is an essential component of speech that is often overlooked by many. Human beings often discuss, form and deliver their opinions as private groups. The criterion by which a group chooses its membership has a direct impact on the speech that the group engages in. But associations are under attack by antidiscrimination claims. If courts have the power t

Antidiscrimination laws were once seen primarily as a means to help blacks, women, and others enter the economic mainstream. Those days have long since past. Bernstein shows that the laws are now seen primarily as enforcing a stringent moral code, one that is supposed to outweigh any competing claims, including claims of liberty backed up by the First Amendment and other constitutional rights. The Left has been the primary offender in this regard, but the Right, especially the religious right, is also willing to use antidiscrimination law to stifle speech they don't like. Especially pernicious are laws banning the creation of a "hostile environment", which are interpreted by some courts to ban any speech that any individual worker claims to find offensive. This book is an important warning, but it's also a good read. The first chapter, setting out a theoretical framework for why civil liberties should be protected against civil rights laws, is a little tough going, but after that it's a joy to read. Highly recommended.

"Whatever happened to civil liberties?" one might ask after reading this book. Since liberty is probably a more valuable value than enforced fake equality, it is a good question to ask. Whether one is politically left or right, there is something disturbing to consider in You Can't Say That. But I think we will always have problems handling liberty for all, because we often want total freedom for ourselves, but often unwilling to give the same type freedom to others with clashing values due to moral judgements. In a word, we wish to control others, but have total freedom for ourselves. Another conclusion one may come to after reading the book is the question of whether liberty can survive in diverse environment where everyone has clashing loyalties and viewpoints. One example is given of an American who put up a picture in his work space disapproving of Iran hostage situation of 1979, which offended an Iranian working at the same company. Control from rightists usually involves cracking down on artistic freedom especially if it has sexual content. One extreme example is given in a book in which a woman sued a city government for having a nude statue of a woman in the public square. (Although this woman could have been a feminist and therefore not necessarily on the right.) Control from leftists usually involves disapproving of any type of discrimination, such as a religious person not wanting to rent their place out to unmarried couples or people who are straight and don't want to have a gay room mate. Lawsuits are filed which encroach upon freedom of association. As far as civil rights lawsuits go, it is easy to second guess the official motivations for the lawsuits. Is the aggrieved party really being harmed or are they just smelling the money that a successful lawsuit can bring? Although tort reform is not discussed much, the author Bernstein does approximately say that we are subsidizing hurt feelings by rewarding money to the overly sensitive, which increases sensitivity and more frivolous lawsuits. --And let's face it, it's easier to win lawsuits than win the lottery. Another reason for such lawsuits is that it is used to punish people whose viewpoints the one filing the lawsuit disapproves of. It has become a weapon in the culture war. The workplace has become a rather stifling place to express oneself due to all the laws that pertain to creating a hostile environment. Nearly any non-bland statement or action could fall under hostile environment law. Again, one second guesses the real purpose of the law: Is it really about civil rights or does it just give government more work to do snooping into private sector where it does not really belong. One of the worst organizations for encroaching on civil liberties is the government housing department HUD. Any protest against their activities can bring a lawsuit and they even control how a house can be advertised... A lot of companies enforce oppressive civil rights laws not because th

Early in life my parents taught me the childhood ditty "Sticks and stones will break my bones, but names will never hurt me" in order to inculcate into me the realization that my belief in myself was more important than what anyone else thought about me. After all, America was a "free country", and an essential element of that freedom was encompassed by the freedom of speech protected by the First Amendment to our Constitution, the document which together with the Declaration of Independence outlined the political philosophy of the founders of our country. However, as David Bernstein shows in this marvelous new book, increasingly over the past few decades intolerant activist zealots have managed to "impose their moralistic views on all Americans". And one fascinating aspect of this trend which he discusses is the "psychological endowment effect", that by promoting monetary remedies and subsidizing feelings of outrage over alleged injustices, we have reinforced the probability that the trend will continue. The primary focus of this book by Professor (at George Mason University School of Law) Bernstein is the tendency of the judiciary to abandon our Constitutional protection against government's ability to regulate speech when such speech (and very worrisomely even acts such as laughter or simply staring) conflicts with antidiscrimination laws and the regulations of the agencies charged with their enforcement. The book is very well organized; it begins with a general background discussion of the problem including important contextual history and proceeds to discuss several related aspects of the problem including the threat to artistic freedom, workplace regulation, speech codes on public university campuses, the regulation of religious schools and the threat to the autonomy of private organizations. Some of the most enlightening material outlines the increasing tendency of the judiciary to defer to the bureaucratically promulgated regulations of such government agencies as HUD, the EEOC and the DOE, which often seem to view their own intentions as above criticism and attempt to censor and even legally punish individuals who express disagreement with their goals. This is a book that should be widely read and debated, since the topic influences all individuals in a myriad of ways. I hope that the academic approach to the subject does limit the audience for the book to readers with a legal background; despite copious footnotes the book is very readable and many of the references and cases discussed are fascinating. Despite my long standing layman's interest in the area of Constitutional law and my exposure as a member of the Cato Institute Board of Directors to previous publications discussing various aspects of this topic, this is by far the most comprehensive and systematic treatment that I have seen. The final chapter includes a fascinating discussion of the gradual transformation of the ACLU from an organization that was a stalwart defender of c

A solidly reasoned and well-documented analysis of the conflict between First Amendment rights and antidiscrimination laws, showing how those laws are increasingly threatening First Amendment rights, at times with ridiculous and authoritarian consequences. This book also shows how nowadays, antidiscrimination laws are no longer used as a means for elevating the playing field of previously marginalized groups, but rather as an extremely powerful tool for winning the cultural war between the secular left and the religious right, with both legislators and judges siding with the left. The book also shows that it is impossible to ERADICATE discrimination - because any attempt at that inevitably leads to undesired consequences with a net loss to society - so we ought to strive instead towards REDUCING discrimination as much as possible within the confines of civil liberties outlined in the Constitution. The book starts by offering an argument as to why civil liberties should be protected from antidiscrimination laws, and then delves into particular issues, chapter by chapter: the threat to freedom of expression in the workplace, the threat to artistic freedom, the threat to political speech, speech on campuses, and even instances of compelled speech, the threat to the autonomy of private organizations, expressive associations, religion, and privacy. The book concluded with a scathing analysis of the ACLU's about-face, and ends with specific recommendations to legislators, judges and the public. This is a persuasive book, easily read, and a must read for all: those who treasure civil liberties will learn how their liberties are increasingly being threatened and what to expect should the current trend continue, and those who do not treasure civil liberties might be persuaded by understanding that the current politically correct trend can easily boomerang, as indicated by several examples in this book.