You Can’t Say That: The Growing Threat to Civil Liberties from Antidiscirmination Laws by David E. Bernstein. Washington, DC: CATO Institute, 2003, 197 pages, $20.00

 

            You Can’t Say That is a truly important book, for it reminds us that no social revolution, even the most morally justified, is costless. The Civil Rights Act of 1964 did indeed precipitate a social revolution, one that at long last began to deliver on the promise of the Emancipation Proclamation. Over the nearly half-century since its passage much has changed in America, and for African-Americans that change has been both grievously overdue and remarkable in its sweep, although still very much a work in progress. However, this is not a book that catalogues the successes of the antidiscrimination movement that burgeoned in the wake of the 1964 Act, but rather an elegy to what must count on the other side of the ledger, to what has been compromised in the noble quest for racial equality. In this eloquent and accessible book, remarkably free from the lawyer’s propensity to stultify the laymen with a blizzard of case law, it is clear that the principal cost has been to First Amendment values, sacrificed too cavalierly when they conflict with antidscrimination principles.

            One need only look to the publisher of Bernstein’s book, the Cato Institute, to see that the ideological landscape has been radically altered since the 1960s, when New Deal liberals still dominated the left, and the First Amendment comprised the heart and soul of their United States Constitution. Even earlier, before World War II, when Communists held sway on the left, the First Amendment was sacrosanct: to Communists it was their second favorite constitutional amendment, after the Fifth, prized as a stratagem to protect their freedom to subvert. For the non-Communist left of the post-war period, the First Amendment was sincerely embraced as a guarantee of their right to question mainstream American political views and social values.

            Now, it is right of center, libertarian organizations—the Cato Institute, the Institute for Justice, the Foundation for Individual Rights in Education, the Center for Individual Rights, the Individual Rights Foundation—that are on the cutting edge of defending First Amendment civil liberties against the unintended consequences of antidiscimination laws and “political correctness.” As Bernstein documents, the American Civil Liberties Union, the traditional liberal standard bearer on First Amendment values of freedom of speech, freedom of association, and the free exercise of religion, has been increasingly AWOL, all too often willing to undermine civil liberties when they conflict with antidiscrimination principles. Emblematic of this shift is the ACLU’s efforts, through some of its state chapters, to undermine the free association rights of the Boy Scouts of America by repeatedly suing the Scouts to make them accept homosexuals as scoutmasters and atheists and girls as members, the former eventually nixed by the Supreme Court in Boy Scouts of America v. Dale (2000).

            How much the ideological landscape has been transformed in the wake of the antidiscrimination revolution is revealed in Dale perhaps more than in any other case. Chief Justice Rehnquist wrote the opinion of the Court, a ringing defense of freedom of expressive association, for himself and his four fellow conservatives, while the Court’s four liberal members dissented, valuing antidiscimination over freedom of association. The ideological divide that this case revealed is rich in irony, since it was the Court’s liberals who almost fifty years before had discerned a right to freedom of association in the interstices of the First Amendment in order to prevent Southern states from crippling the NAACP by demanding that its chapters produce their membership lists, an effort to intimidate the organization’s members and open them to life-threatening reprisals.

            By the 1980s, however, the Court’s liberals were far less enamored of the associational freedom of private groups when it stood in the way of laws prohibiting discrimination in places of public accommodation. The Dale decision would undercut two key Supreme Court decisions from the 1980s that had compromised the associational freedom of large-membership private clubs, despite the Civil Rights Act’s exemption of private clubs from its public accommodation provision. Speaking through one of its liberal stalwarts, Justice William J. Brennan, Jr., the Court had found, in Roberts v. United States Jaycees (1984), that the all-male membership policies of the Jaycees were unjustifiably discriminatory. The state’s interest in ending discrimination against women, Brennan argued, trumped the male members’ First Amendment right to freedom of association. Brennan found that the state met the Court’s “compelling state interest” test, its most rigorous test for determining whether a law can overcome a First Amendment right, when it applied its public accommodation law to the Jaycees, a ruling that the Court reiterated three years later against Rotary International. As Bernstein perceptively argues, it is difficult to see how the state even had a constitutionally legitimate, to say nothing of a compelling, interest in eradicating discriminatory thoughts, beliefs, and associations, since it is precisely the purpose of the First Amendment to protect individuals and their associations from governments bent on imposing ideological conformity.

            Bernstein is at his best in repeatedly admonishing the left that when they philosophically assail and legally undercut First Amendment expressive liberties in favor of antidiscrimination principles, they may ultimately impale themselves. Radical feminists, with their anti-pornography crusade, and Crits of various stripes, with their line that “there is no such thing as freedom of speech,” neglect this wisdom at their peril. This was a lesson that the old-Left well understood, with the Smith Act cases fresh to mind, as well as HUAC investigations and the McCarthy era. Today it is the left that rules the campus, particularly the tenured faculty of the Vietnam, Baby Boom generation, to the near exclusion of all opposing viewpoints. It is this tenured left that has promulgated university “speech codes” that curtail the free speech rights of faculty and students in the quest to rid campuses of sexual harassment and racial, sexual, gender, and sexual- preference discrimination, and it is courts with judges still wedded to the old liberalism of First Amendment verities, that have struck down such codes at public universities. But there is no guarantee that the left’s hegemony in the universities will be everlasting, nor that those ensnared by these speech codes will remain solely hapless conservatives. Bernstein cautions that in the wake of September 11^th and the left’s reborn anti-war movement, the left would be wise to recognize that the First Amendment is essential. If only out of pure self-interest, the left ought to return to its roots. If public opinion should come to loathe their views as unpatriotic, if not downright treacherous, only a rejuvenated First Amendment and its campus offspring, academic freedom, could protect them. So far, though, there is little evidence that this admonition has been taken to heart, perhaps for the reason that Bernstein identifies: that “left-wing censors imagine a world in which the government silences only their ideological enemies....” Yet, Bernstein reminds us, “Power granted to government is often ultimately used against those who advocated that the power be exercised against others.”

            The thesis of You Can’t Say That is worth serious consideration: that antidiscimination law has mushroomed in ways unanticipated by its early proponents and deleterious not only to its central mission of assimilating African-Americans into the mainstream but to civil liberties as well.  Bernstein provides an abundance of examples:

        (1) Sexual harassment law--which arose entirely from judicial construction and formed no part of the original 1964 Act--in its “hostile environment” guise targets offensive speech, jokes, and the display of risqué art, cartoons, and magazines. Thus, to avoid lawsuits employers and universities adopt sexual harassment codes, which amount to indirect government censorship. Employers have begun to monitor employees’ email messages after hostile environment suits were filed by offended co-workers.

        (2) The First Amendment’s protection of the free exercise of religion has fallen afoul of antidiscimination laws that prohibit pregnancy discrimination, as private, religious schools have been faced with sex discrimination complaints and lawsuits for firing or refusing to renew the contracts of teachers who flouted their churches’ moral values by becoming pregnant out of wedlock. Georgetown University faced antidiscimination claims under the Washington D.C. Human Rights Act that prohibits discrimination against homosexuals when it refused, on religious grounds, to fund gay student groups. Religious landlords who had declined to rent apartments to unmarried, would-be tenants based on their flouting of traditional moral values were charged with marital status discrimination under state antidiscirmination laws that cover more categories of the possibly offended than does federal law.

        (3) Fair housing ordinances have been invoked by spurned potential roommates, citing lesbianism as the discriminatory reason for their rejection, thus implicating the right to privacy of the apartment dwellers. Fair housing laws also prevent individuals from advertising their discriminatory preferences and newspapers from publishing them, the First Amendment freedom of speech and the press proving of little avail.

            (4) Artistic expression and political speech, formerly understood by all to lie at the heart of the First Amendment’s protection, have also taken their blows from antidiscimination law. A mother filed a height and weight discrimination complaint against the San Francisco Ballet for spurning her daughter for an elite training program due to her less than svelte body type, while a group of female artists complained to the National Endowment for the Arts that New York’s most prestigious museums did not display enough art produced by women. Housing and Urban Development officials used the Fair Housing Act amendments to intimidate neighborhood groups that sought to exercise their free speech rights to campaign against group homes for the disabled, while those charging discrimination have sometimes been allowed by courts to enter into evidence a defendant’s past political speech.