Y O U C A N ’ T S AY T H AT:

T H E G R O W I N G

T H R E AT T O C I V I L

LIBERTIES FROM ANTIDISCRIMINATION

LAWS

David E. Bernstein

Washington, DC: Cato Institute, 180pp., ISBN: 1 930 865 538, $20.00 (hb), 2003

The United States has long been respected for the principled thoroughness with which it has upheld the right to freedom of speech embodied in the first amendment to the constitution. We owe part of our own freedom of speech to the Americans who have upheld freedom of speech on the Internet against pressure from other countries who are angry that their citizens can call up forms of speech banned at home. The US consistently refuses to sign international agreements that would infringe the purity of its own constitutional guarantees of freedom of speech.

It is thus distressing to read in David Bernstein’s excellent book how anti-discrimination laws are being used to undermine civil liberties, such as the freedom of speech, in the very home of liberty itself. The US courts have in the past upheld freedom of speech, even where it might seem to encourage crime or subversion, but they have allowed anti-discrimination laws to over-rule freedom of speech. Once again the drive for equality is revealed as the greatest enemy of individual freedom.

One of the most striking examples of this is the substantial numbers of individuals who have been sacked (and also in consequence lost their medical care) because their employer’s lawyers were afraid that remarks that these individuals had made might lead to some other indignant and affronted employee suing the employer for allowing them to be subjected to a ‘hostile work environment’. A member of a legally privileged ‘minority’ might well then be awarded vast damages for some trivial remark. In consequence employers now even snoop on conversations and e-mails between two friendly consenting employees lest they contain a comment which might be uncovered later during a legal discovery process resulting from a case brought in some quite distant part of

its organisation about ‘objectionable’ speech producing a hostile work environment. If probing, avaricious lawyers can find irrelevant private e-mails or known conversations that can be construed as potentially offensive, they can use these to suggest that the company did not have an acceptable policy of zero tolerance towards ‘discrimination’ and thus to buttress their present claim or to boost the size of the award. Fear of such actions has also led companies to insist that employees not merely comply with ‘anti-discrimination’ and anti-free speech policies but personally endorse and believe in them. The thought police have arrived.

It is possible to argue that companies, as purely private institutions, receiving no state funding, are entitled to suppress speech against

company policy in this area much as in the past they have sacked labour union agitators or those who expressed doubts about the ethics of an advertising campaign. Such employees could be said to have been justifiably dismissed for making statements that might damage profitability. However, the contemporary rows about discrimination and hostile workplaces are entirely an artefact of legislation enacted by the government. Bernstein wants the courts to strike a

better balance between freedom of speech and anti-discrimination laws so that protection of free speech is better upheld. But is he being sufficiently radical here? Surely further, stronger measures are needed, namely to cap the damages that may be awarded in discrimination cases (as has already been suggested in relation to tort and malpractice) and also to invoke severe penalties against

parties who initiate complaints that the courts later decide are trivial and against the lawyers who take on such cases. If they both know in advance that the company can also obtain damages against them, they will think twice about suing; it would put a lot of dubious lawyers out of business. Indeed such liability ought to be extended to the voluntary organisations, NGOs and government agencies who help to prepare and sponsor claims of this kind.

In this connection, one of the worst cases cited by Bernstein is the government’s legal persecution of a neighbourhood housing association in Berkeley, California, that was campaigning against the location of a drug rehabilitation unit in its area. The Department of Housing and Urban Development subpoenaed all their records and threatened three of its leaders with jail and punitive damages. Other neighbours were put under pressure to turn informer and everyone in the area became afraid to join or to speak out. The Department even threatened to call the defendants’ lawyers as witnesses, thus depriving them of legal representation. The Department claimed that Congress had given them the right to suppress any political or other speech that might lead to forms of discrimination prohibited by the Fair Housing Act. In the end the Department had to retreat but it is disgraceful that they ever thought in the first place that they need not be guided by well understood constitutional limits on state power or that they could not see that what they were doing would destroy a free society.

We can here see the rise of a phenomenon to which we may give the Orwellian title of AmSoc, a uniquely American form of socialism in which equality is enforced through anti-discrimination laws.

It is one more case of the false rhetoric of ‘fairness’ being used by self-interested groups to undermine a civil liberty that is the very essence of a free society. Such bureaucrats like the lawyers who exploit anti-discrimination legislation are enemies of the people. It is a problem that extends to all areas of American life including the world of culture and the intellect. University teachers are under pressure, albeit inchoate pressure, not to teach unpopular topics that might be construed as constituting a hostile learning environment. It is a matter of great amusement to learn that religiously committed male students are now taking action against feminist lecturers on these grounds. More threatening is the case of Penn State University which took down a print of Goya’s Naked Maja from their walls for fear of a hostile work environment suit being brought against them. The complainers do not even have to work in the building. One feminist assistant school superintendent who happened to go to

a meeting in a city hall in Tennessee adorned by a nude painting threatened a hostile environment lawsuit. The City Attorney had it removed rather than risk a judgment ‘with six zeros behind it’. Mrs Henderson, the talented artist who had painted it, then sued successfully on the grounds that removing the painting was a violation of her First Amendment rights, but she was only awarded one dollar plus her costs. It sums up the priorities of PC AmSoc America. A trivial anti- discrimination claim is worth a million times as much as freedom of speech and expression.

David Bernstein is to be congratulated on so clearly, vividly, analytically and accurately showing seriousness of these new threats to free speech and civil liberties in the US. The Cato Institute also deserves credit for publishing the book since in Bernstein’s words ‘authors who take politically incorrect positions . . . face a particularly difficult time finding publishers among leading trade presses’ (p. ix). Cato at least is still the land of the free and the home of the brave.

Christie Davies

Reading University