SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Tuesday, August 24, 2004

REVIEW OF BERNSTEIN'S YOU CAN'T SAY THAT! The following as a book review I wrote for a publication that never came to print. Thus, I'm posting it here and will put it up on Amazon shortly.

You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws
Cato Institute (2003)
By David E. Bernstein

A Fine Analysis of Contemporary First Amendment Issues (5 Stars)

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. But this shouldn’t be surprising when one realizes that a large number of people left (and even some on the right) believe that free speech only applies to people they happen to agree with. This problem is particularly acute in public education and supposed “higher” places of learning, where academic freedom reigns supreme and is available to all—just as long as you don’t speak and think the wrong way.

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 (http://www.volokh.com/), 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.

Many people fail to recognize that our federal Constitution is a charter delineating limiting the actions of the federal (and in some cases state) government. With rare exception—such as the 13th Amendment’s prohibition on slavery—does the Constitution deal directly with the actions of citizens. And herein lies the problem: whereas civil rights supporters had previously fought to end government unjust racial discrimination by government, newly emerging groups clamoring for special interest rights began to demand discrimination by society. An absolutist streak runs heavily through many interest groups today, who seek to completely eliminate all forms of invidious discrimination. But even if the elimination of all discrimination may be a noble goal, is it really possible for government to do that without causing more problems? Says Bernstein, “Although much private speech is wrongheaded or even dangerous, it is even more dangerous to put the government in charge of policing it.”

To make matters worse, 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. The attacks waged against the Boy Scouts by homosexual activist groups is a case in point. The Boy Scouts—a private organization—have become a target because of their rules prohibiting homosexual masters. Homosexual groups have made a conceited effort to have the government force them to change their rules. But if the courts have the powers to do just that, why don’t they have the power to force homosexual groups to include members who disagree with their message? The point here isn’t that one must agree with the position of the Boy Scouts, but merely that one must recognize that free association requires that people be able to choose the message of their group (whatever it may be) and choose members upon their willingness to adhere to that message. If courts have the power to tell us who we associate with, then free association does not exist.

Fortunately, the U.S. Supreme Court case of Boy Scouts of America v. Dale (2000) not only reaffirmed the important associational principle that “a speaker has the autonomous right to choose the content of his own message,” but also stressed that associations “do not have to associate for the ‘purpose’ of disseminating a certain message” to receive First Amendment protection. But be warned: the decision was 5-4, and the assault on the Boy Scouts and other private organizations continues in the lower courts.

Too many people forget that one can completely disagree and even despise the message that another person presents while still affirming that person’s right to give the message. A read of Bernstein’s fine book definitely drives that important point home.

*******

FURTHER THOUGHTS: I am not 100% certain, at this point in my studies, that the libertarian position that Bernstein takes on the First Amendment is the one that most comports with its original understanding. Nonetheless, it one that I have great sympathies for and lean toward. Regardless, his application of his understanding is logical and consistent.

By the way, I know that publishers often choose the titles of books, rather than the authors...but the title of this book is so cool!

(Green Lake--Seattle, WA)

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