Vol. 14 No. 6 (June 2004), pp.472-476

YOU CAN’T SAY THAT!:  THE GROWING THREAT TO CIVIL LIBERTIES FROM ANTIDISCRIMINATION LAWS, by David E. Bernstein.  Washington: Cato Institute, 2003.  197pp.  Cloth $20.  ISBN:  1-930865-53-8

Reviewed by Howard C. Ellis, Department of Business Administration, Millersville University of Pennsylvania.  Email: howard.ellis@millersville.edu 

David Bernstein, a professor at George Mason University Law School, says in the acknowledgements to YOU CAN’T SAY THAT! that the idea to write the book came from his brother’s 1990 run-in with local officials who objected to an ad his brother placed in the Philadelphia Jewish Exponent that described a house for sale as “within walking distance from a synagogue.”  Since most Jews are white, this could be perceived as an implicit preference against non-whites (not to mention non-observant Jews, non-Jews, and the disabled). 

That the newspaper has an almost exclusively Jewish readership, or that the non-Jew could ignore that part of the ad and consider the property’s other characteristics, evidently did not assuage the local officials.  They did not try to ascertain whether discrimination was intended, or if he merely pointed out a feature of his house that might attract a willing buyer.  Why is anyone allowed to advertise in a Jewish newspaper at all?  Isn’t that equally indicative of an intention to sell to Jews only? 

This anecdote would be more amusing if it remained an isolated example of bureaucratic officiousness, but it is a fairly ordinary example of the way the world is.  That the story is now commonplace is truly the motivating force behind this book.  The central theme, expressed in the book’s subtitle, is that the enforcement of antidiscrimination laws is threatening civil liberties. 

Bernstein does not mince words.  There are “intolerant activists” who are a “dominant force in one of the two major political parties.”  These “left-wing egalitarian activists” have an agenda “of elevating antidiscrimination concerns above all others.”  This, says Bernstein, “poses an acute threat to civil liberties” (p.1).

He knows that his thesis is not politically correct, that he is challenging the mindset prevalent in government agencies, the civil rights establishment, and academe.  In the introduction he identifies the threat to civil liberties plainly.  Antidiscrimination law puts at risk all the first amendment civil liberties—freedom of association and expression, religion, speech, press, and petition for redress of grievances.  In the following chapters Bernstein undertakes the task of showing, through argument and the compelling use of examples, that antidiscrimination laws, if they are not limited in scope, or if overzealously enforced, are a source of much greater social harm than the discrimination they are intended to prevent.

Mr. Bernstein is equal to the task.  His book is both well-researched and well-written.  It will be as valuable to the [*473] serious scholar as it will be interesting and informative to the intelligent lay reader.

Bernstein argues that as infuriating as bigots can be, “the alternative to protecting the constitutional rights of such scoundrels is much worse:  the gradual evisceration of the pluralism, autonomy, and check on government power that civil liberties provide” (p.10).  His exposition of the importance of civil liberties and the challenge posed to them by antidiscrimination laws is clear and convincing. 

The first chapter offers a theoretically rigorous discussion of his thesis.  The following four chapters are devoted to the various arenas of conflict between civil liberties and antidiscrimination law:  the workplace, artistic expression, political speech, and speech on the university campus.  The remaining chapters address compelled speech, private organizations defined as public accommodations, expressive associations, religious schools and landlords and their right to their own views of sexual morality, associations too intimate to be regulated by antidiscrimination law, and the ACLU and its movement away from protecting civil liberties.

In Chapter 1 Bernstein points out that civil liberties—e.g., rights to associate and to march—were as important as antidiscrimination laws themselves in the struggle to redress historic wrongs done to blacks.  After passage of the 1964 Civil Rights Act employers and universities began to end their restrictions on black applicants and started to actively recruit them.  A discrimination-free world came to be viewed by many as not only desirable, but possible.  But as an increasing number of groups were protected from discrimination, enforcement agencies came to view civil liberties as nothing more than interests to be balanced against efforts to wipe out bigotry. During the 1980s and early 1990s courts often refused to enforce civil liberties when they conflicted with antidiscrimination laws. 

Though, according to Bernstein, the recent trend is more friendly to civil liberties, he believes fear of litigation is having a chilling effect in workplaces, universities, and elsewhere. In the normal course of things constitutional civil liberties should take precedence over statutory law.  Though courts have held that government has a compelling interest in eradicating discrimination, they have not explained why antidiscrimination laws should trump civil liberties.

The rise of critical race theory and feminist theory, he says, has led to attacks on the first amendment as a barrier to sexual and racial equality.  Racist expression is so dangerous, say the race theorists, that it is “outside the realm of protected discourse.”  Feminists would ban books purporting to document women’s inferiority to men or claiming that reports of rape are routinely fabricated.  To them, free speech is an enemy.

Bernstein disagrees.  Challenging orthodox attitudes can contribute to improving the status of victimized groups.  Speech can be dangerous, but not as dangerous as putting the government in charge of policing it.  Free speech is important to combat factions from using government for [*474] private purposes.  Bernstein worries that if race theorists and feminists win this debate, and antidiscrimination laws are allowed to supersede civil liberties, then our first amendment freedoms will not long survive.

Chapter 1 was powerfully argued, convincing, and also quite readable. Bernstein makes his case.  I think he could have strengthened his argument by adding here one simple point (that he makes later in the book):  what, exactly, is the supposed harm that offensive speech can cause?  Absent a captive audience, speech that makes one uncomfortable and can be an affront to one’s dignity—the KKK march, or the racist website—can be avoided.  Don’t go to the march.  Don’t access the website. 

In the workplace the line between protected speech and a hostile environment is fuzzy, so the prudent employer prohibits anything sexual, religious, or racial that comes close.  This results in an implicit but nonetheless chilling nationwide speech code banning any speech that could offend protected groups.  Cases are often heard by administrative bodies who are slanted toward plaintiffs because, unlike courts, they have responsibility for enforcing antidiscrimination laws, but not for upholding civil liberties. 

One flaw in Chapter 2 is that Bernstein is dismissive of the captive audience argument in the workplace.  His suggestion, that offensive speech should be protected there because avoiding it “would only involve switching jobs” (p.32), is unpersuasive.  Better to admit that the harm imposed by offensive speech can be real, and the price of avoiding it can be high, but the speech is nevertheless protected because those costs are outweighed by the costs of banning the speech. 

Chapter 3 concerns the threat to artistic freedom posed by antidiscrimination laws. Bernstein decries the trend by which issues of taste are turned into issues of sexual harassment, thus allowing the most prudish to dictate the public’s taste in art.  He believes that the arts are under attack from feminists, prudes, prima donnas, reactionaries, and government bureaucrats, all of whom want the arts and entertainment world to conform to their vision of a good society. It is only the first amendment, he says, that prevents a return to artistic censorship under the guise of combating discrimination.

As is typical of books that are critical of a particular trend in the law, Bernstein attempts to prove his point with the most extreme examples he can find, such as the mother who thinks her overweight daughter should be accepted for ballet training.  By itself this does not prove that laws prohibiting discrimination against the obese are completely unreasonable.  For example, there is nothing ridiculous about requiring a theater to install a few wider seats for portly customers.  Even the slightly out-of-shape adult who has sat in a student desk knows that they are comfortable only for the slim. 

But unlike lesser authors, Bernstein does not include only egregious examples.  He discusses a myriad of important cases:  art museums receiving federal funds that do not display enough works by women; highbrow art exhibitions that are too sexually explicit; and examples [*475] of antidiscrimination law impinging on lowbrow art (TV shows, comedy clubs, rap music).  Bernstein shows that the achievement of a “flourishing and diverse arts and entertainment scene unrivaled in the rest of the world” (pp.45-46) is under threat.

In the subsequent chapters Bernstein continues to present useful examples and coherent argument to show that speech, associational rights, privacy rights, and freedom of religion are all under attack.  A justice department official writes that the distribution of leaflets opposing HUD’s plans to build low-income housing is no different from using baseball bats against unwelcome residents. Remarking that women are less competent than men in a certain field is hate speech, even if true.  Employers who rely on word of mouth advertising may be courting serious trouble, no matter how cost-efficient such advertising may be. Private male-only organizations (Jaycees, Rotary, Boys Clubs) are considered public accommodations and thus are forced to accept women members.  Religious schools who frown upon premarital or extramarital sex are compelled to employ teachers who are both single and pregnant.  Religious landlords are compelled to rent to unmarried heterosexual couples.  There are places where one cannot reject a potential roommate based on race or sexual orientation.  Even when roommates are entitled to discriminate on these grounds, they are often not allowed to advertise their preferences, so time and money is wasted interviewing incompatible applicants.  Women-only health clubs have, in some places, been forced to admit men as members or hire men as employees.  Universities receiving federal funds must maintain detailed records of all student and employee applications, academic records, and the like, broken down by race, sex, age, ethnic origin, and submit them upon demand to federal authorities.  Title IX dictates which sports a university can offer, whether feminist scholars must be tenured, and whether speech codes are necessary.  “The degree to which American universities have lost their autonomy is staggering” (p.143), says Bernstein.

One of the most interesting chapters is Chapter 12:  “The ACLU and the Abandonment of Civil Liberties.”  Bernstein demonstrates with numerous examples how the ACLU, bowing to leftist intellectual trends, has deviated from its avowed purpose of protecting civil liberties in favor of antidiscrimination laws. The ACLU opposed the Religious Liberty Protection Act. It supported the unmarried couples against the religious landlords.  It took the side of gays and atheists who wanted to force the Boy Scouts to admit them, as antithetical as this would be to the Scouts’ moral conception.  He concludes with a plea that the ACLU will return to its purpose of defending civil liberties, rather than its new role as a liberal organization fighting against discrimination.

Bernstein calls on legislatures to do the following: ensure that public accommodations laws apply only to public accommodations, not private clubs; refuse to allow protected speech to support a sexual harassment claim; ensure that universities are protecting speech; put religious exemptions in antidiscrimination laws, such as for small-scale landlords; and monitor [*476] agencies to ensure they are enforcing antidiscrimination laws properly. 

Courts, for their part, should not give antidiscrimination laws special status.  Citizens, for their part, should organize and defend civil liberties. According to Bernstein, we must all learn to tolerate some amount of offense and to understand that the diminution of civil liberties in order to achieve a false equality will diminish our protection from the power of government. 

Our society has made enormous strides in the last forty years in reducing discrimination. There are some pockets where attitudes are imperfect and equality is not yet total.  Bernstein forces us to ask whether we should sacrifice our civil liberties for slightly quicker social change, accepting the risk that the government will stifle pluralism or codify regressive social norms.  He demonstrates clearly and, no doubt provocatively, that we should not.


Copyright 2004 by the author, Howard C. Ellis.