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You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws Hardcover – September 16, 2003


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Editorial Reviews

Review

"If you're looking to start an argument, take this book to an ACLU meeting." -- The New York Post

"You Can't Say That!" does an excellent and methodical job of cataloguing the insanity of anti-discrimination run amok." -- The Washington Times

"[Bernstein] demonstrates that...'activists' for one cause or another have shown a willingness to trample on the rights of others." -- National Review

About the Author

David E. Bernstein is an associate professor at the George Mason University School of Law. He is a graduate of Yale Law School, where he was senior editor of the Yale Law Journal and a John M. Olin Fellow in Law, Economics, and Public Policy. After clerking for Judge David Nelson of the Sixth Circuit Court of Appeals and working as a litigator at Crowell & Moring, he served as a Mellon Foundation Research Fellow at Columbia University School of Law. Professor Bernstein is the author of more than 60 scholarly articles, book chapters, and think tank studies. He is author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press, 2001), coeditor of Phantom Risk: Scientific Inference and the Law (MIT Press, 1993), and coauthor of The New Wigmore: Volume on Expert and Demonstrative Evidence (forthcoming). He has been named one of the most cited professors among those who have entered law teaching since 1992.
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Product Details

  • Hardcover: 180 pages
  • Publisher: Cato Institute; First Edition edition (September 16, 2003)
  • Language: English
  • ISBN-10: 1930865538
  • ISBN-13: 978-1930865532
  • Product Dimensions: 6.2 x 0.8 x 9.6 inches
  • Shipping Weight: 1 pounds (View shipping rates and policies)
  • Average Customer Review: 4.8 out of 5 stars  See all reviews (14 customer reviews)
  • Amazon Best Sellers Rank: #2,026,150 in Books (See Top 100 in Books)

More About the Author

David Bernstein was born and raised in Queens, N.Y. He attended Brandeis University, where he graduated summa cum laude, and where he was the first student in the university's history to write regular opinion columns for the school newspaper from a conservative or libertarian perspective. Not coincidentally, he also received his first (and only) death threats there. Bernstein then attended and Yale Law School, where he was a John M. Olin Fellow in Law, Economics, and Public Policy.

After several years practicing law, Bernstein joined the faculty of the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995, and where he is currently the GMU Foundation professor.

Bernstein has written on a wide range of legal topics, including junk science in American courtrooms, affirmative action, conflicts between antidiscrimination laws and civil liberties, the legal response to Soviet spying in the U.S. after World War II, anti-Western and anti-Israeli ideology masquerading as international law, and more. He blogs for the Volokh Conspiracy at the Washington Post.

In the academic world, Bernstein is perhaps best know for his rewriting the standard history of the so-called Lochner era, the period of the early twentieth century when the Supreme Court tried (in vain) to keep government within constitutional boundaries as traditionally understood. Bernstein's books and articles on the subject suggest that "Lochner-era" Supreme Court decisions were subject to unfair and inaccurate caricature by generations of historians who read the decisions through the lens of modern Progressive ideology, rather than understanding them on their own terms in their historical context.

Bernstein's books include Rehabilitating Lochner: Defending Individual Rights against Progressive Reform; You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws; The New Wigmore: Expert Evidence (co-author); and Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal.

His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, will be published in Fall 2015 by Encounter.

Customer Reviews

4.8 out of 5 stars
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That obvious point aside, it is a book well worth reading.
john thames
One can completely disagree with and even despise the message that another person presents while still affirming that person's right to give the message.
Seth Cooper
I hadn't thought of how antidiscrimination laws infringed on the 1st amendment, freedom of association until reading this book.
D. Sturgis

Most Helpful Customer Reviews

44 of 47 people found the following review helpful By Tucker Andersen VINE VOICE on February 18, 2004
Format: Hardcover Verified Purchase
Early in life my parents taught me the childhood ditty "Sticks and stones will break my bones, but names will never hurt me" in order to inculcate into me the realization that my belief in myself was more important than what anyone else thought about me. After all, America was a "free country", and an essential element of that freedom was encompassed by the freedom of speech protected by the First Amendment to our Constitution, the document which together with the Declaration of Independence outlined the political philosophy of the founders of our country. However, as David Bernstein shows in this marvelous new book, increasingly over the past few decades intolerant activist zealots have managed to "impose their moralistic views on all Americans". And one fascinating aspect of this trend which he discusses is the "psychological endowment effect", that by promoting monetary remedies and subsidizing feelings of outrage over alleged injustices, we have reinforced the probability that the trend will continue.
The primary focus of this book by Professor (at George Mason University School of Law) Bernstein is the tendency of the judiciary to abandon our Constitutional protection against government's ability to regulate speech when such speech (and very worrisomely even acts such as laughter or simply staring) conflicts with antidiscrimination laws and the regulations of the agencies charged with their enforcement.
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16 of 16 people found the following review helpful By Seth Cooper on October 7, 2004
Format: Hardcover
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. 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, 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.

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.
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17 of 18 people found the following review helpful By Zvi M. Aranoff on January 25, 2004
Format: Hardcover Verified Purchase
A solidly reasoned and well-documented analysis of the conflict between First Amendment rights and antidiscrimination laws, showing how those laws are increasingly threatening First Amendment rights, at times with ridiculous and authoritarian consequences. This book also shows how nowadays, antidiscrimination laws are no longer used as a means for elevating the playing field of previously marginalized groups, but rather as an extremely powerful tool for winning the cultural war between the secular left and the religious right, with both legislators and judges siding with the left. The book also shows that it is impossible to ERADICATE discrimination - because any attempt at that inevitably leads to undesired consequences with a net loss to society - so we ought to strive instead towards REDUCING discrimination as much as possible within the confines of civil liberties outlined in the Constitution.

The book starts by offering an argument as to why civil liberties should be protected from antidiscrimination laws, and then delves into particular issues, chapter by chapter: the threat to freedom of expression in the workplace, the threat to artistic freedom, the threat to political speech, speech on campuses, and even instances of compelled speech, the threat to the autonomy of private organizations, expressive associations, religion, and privacy. The book concluded with a scathing analysis of the ACLU's about-face, and ends with specific recommendations to legislators, judges and the public.

This is a persuasive book, easily read, and a must read for all: those who treasure civil liberties will learn how their liberties are increasingly being threatened and what to expect should the current trend continue, and those who do not treasure civil liberties might be persuaded by understanding that the current politically correct trend can easily boomerang, as indicated by several examples in this book.
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