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

by David E. Bernstein

Review by
Robert Wilfred Franson
Cato Institute: Washington, D.C., 2003

197 pages

August 2008

Lawsuit or threat of lawsuit

You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws is a disquieting book. David E. Bernstein brings together a number of issues where a popular, legislated social good, antidiscrimination, has been applied in lawsuit or threat of lawsuit to challenge other Americans' activities which historically have been secured by Constitutional rights. In other words, antidiscrimination law frequently is deemed by courts to override clear provisions of the United States Constitution, including the Bill of Rights. Bernstein illustrates these with a number of interesting legal cases, which I won't try to list or even summarize here. But I will mention the topics he covers.

Bernstein's "Introduction" leads off with a few amazing examples, and then a brief historical background. A legislative watershed was crossed when Congress passed the 1964 Civil Rights Act. This was aimed primarily at racial discrimination, but the Act cast a long shadow:

As the primary justification for antidiscrimination laws shifted from aiding previously oppressed groups to an austere moralism, the laws broadly expanded at the local, state, and federal levels. Antidiscrimination laws came to protect more and more groups against more and more types of discrimination. Enforcement of the laws gradually took on authoritarian traits, encouraged by the establishment of bureaucracies at all levels of government charged solely with the enforcement of antidiscrimination laws. Indeed, many jurisdictions came to call their civil rights enforcement bureaucracies "human rights" agencies — the term suggesting that enforcing antidiscrimination laws against private parties is analogous to enforcing bans on other activities widely regarded as violations of human rights, such as slavery, torture, and genocide.

As the intense moralism of modern antidiscrimination ideology became entrenched in American politics and society, antidiscrimination advocates, especially those who worked for the enforcement bureaucracies, increasingly viewed civil liberties as, at best, competing rights to be balanced against efforts to wipe out bigotry.

Work and art

Bernstein devotes a chapter to "The Threat to Freedom of Expression in the Workplace". Increasingly, saying what you speak or write at work puts you at risk of dismissal. You're better off just not mentioning race, religion, or sex at all; and be real careful how you compliment someone.

Another chapter is on "The Threat to Artistic Freedom"; not just books and publications are targeted, but everything from a sign on the wall to whether a ballet company can screen prospective dancers for slimness. (Perhaps someone was watching Disney's Fantasia.) Every sort of place from museums to restaurants has come under the shadow.

Speak freely no more

"Political Speech as Illegal Discrimination" is scary on a fundamental level, because when political speech is censored, the possibility is damaged of redressing wrongs through informing your fellow citizens. This is critical for a free society, but Congress and the Supreme Court have been unreliable in safeguarding it. Not only national or federal issues, but even neighborhood activism has been attacked under the guise of antidiscrimination law.

"Censoring Campus Speech"? Well, sure. Bernstein suggests that "University officials implicitly reason that if the DOE [U.S. Department of Education] can get away with ignoring the First Amendment, then so can they." The public universities have become hothouses for speech and behavior codes, training up would-be authoritarians practicing on their fellow-student victims — or their faculty, staff, or general community. Increasingly these legislated pseudo-rights clash, even trapping their proponents. Orwellian government censorship comes home to academia. I'm tempted to say, The biter bit!

"Compelled Speech" seems to me the most disgusting set of cases. Americans have been forced to speak, write, even advertise contrary to their desires and beliefs but according to the courts' and bureaucracies' standards. In its heyday, the Communist Party of the Soviet Union could demand greater thoroughness of self-betrayal and apply greater penalties (Stalin's infamous Show Trials, and the Gulag prison camps); but the CPSU would applaud our adoption of such a useful principle.

Freedom of association? Of course, but —

"Public Accommodations Laws and the Threat to the Autonomy of Private Organizations" covers effects somewhat less obvious to individuals, but these laws sooner or later affect everyone indirectly. This is legally compelled association; have we really come to this?

Similarly with "Stifling Expressive Associations" for more-focused or single-issue or otherwise narrowly defined organizations. Anything from a parade to a university may fall afoul of antidiscrimination laws; whether reasonably or unreasonably often is beside the point.

Religious freedom? Not in America

"Regulating Religious Schools" is a problem area that is likely to get worse before it gets better.

"Religious Landlords: Antidiscrimination Law as a Weapon in the Culture Wars" shows how easily it is to align one's moral or spiteful opinion with a condemnatory lawsuit, to punish those with whom we disagree. As Mark Twain said long ago, "Nothing so much needs reforming as other people's habits."

Privacy isn't what it used to be

"The Right to Privacy and the Right to Be Left Alone" — yes, it gets weirder. Some of these outrages would be funny if this weren't the society in which we live. Title IX's warping of college sports falls in here.

The ACLU and the Constitution

In "The ACLU and the Abandonment of Civil Liberties", Bernstein discusses the American Civil Liberties Union's prominent role in antidiscrimination lawsuits. The Boy Scouts are merely one of their most visible targets. Whether you consider the ACLU's waning commitment to civil liberties to be progress, or devolution, or a return to its roots, must depend partly on your awareness of its history.

Conclusions and prospects

Bernstein wraps up in a "Conclusion" with prospects and some suggestions, and glances aside to similar developments in Canadian and Australian law.

A couple of typographical points. One is in the book's acknowledgment link to The Volokh Conspiracy (I give the newer Washington Post link), a key resource for Constitutional rights versus the continuing legalistic assault on them. David Bernstein is a contributor there. And at it can't help book sales that Amazon leaves out the author's middle initial, unlike their listings for his other books.

Fortunately, far from all related court cases are decided against freedom. That any are is an indictment of legislators and judges, and even jurors and voters, who do not understand their Constitutionally affirmed rights, or do not care, or actively oppose them. David Bernstein's You Can't Say That! is an all too bracing account of how this species of social engineering has been damaging America's social fabric. As Bernstein says,

Punishing expression because it creates offense has absurd and totalitarian implications.


© 2008 Robert Wilfred Franson

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