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on January 25, 2004
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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on January 19, 2016
A good primer on the growing PC threat to a free mouth.
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on January 1, 2004
This is a useful catalog of the increasingly repressive nature of American society. As the Left has gradually gained control of institutions, including academia, it has imposed its "compassionate" agenda through myriad totalitarian regulations. As always, the Left uses power to remake people -- to force them to behave -- in ways considered "progressive." Those who disobey the rules are crushed like beetles. And in America, too. Many examples of this possibly irreversible regime are provided by Bernstein.

Despite being published a leading libertarian think tank, this analysis is deficient in key respects. The author doesn't seem to grasp that intellectual rights -- and their protection -- are, as James Madison so clearly stated, grounded in property rights. The gradual and unabated erosion of property rights in the United States has destablized the foundation for intellectual rights. If you do not own yourself and your ideas, you certainly have no justifiction for asserting a right to free speech. The author does not clearly explain whether he thinks rights are "unalienable," as Jefferson said, or given to us by the Constitution. But we are left with the impression that Bernstein relies too heavily on the Constitution to justify our rights. It must go deeper.

Because the author slights property rights, he does a less than stellar job of handling issues that relate to government institutions. How do we sort out what powers and rights can be exercised at, say, public universities? When an institution is private we know who should be able to make the rules: the owners. But if the "public," which is to say the government, owns a college, how, aside from mere force, can it be determined which policy should prevail? If the Left gains control, can it not do what it want and with the full amoral justification that power offers? Why should a student or professor have "rights" in a government setting? How do we know which rights are to be had and which ways are acceptable to express those rights? Unfortunately, there are no satisfactory answers. All matters relating to the "commons" (property controlled by government) are solved by force. Bernstein fudges the issue: he implies that there are certain norms, customs, and constitutional protections in a liberal society that should protect us. But, in the wake of the destruction of the idea of rights obtained at birth, those norms, customs, and legalized protections, are dying. Bernstein's analysis fails because he approaches the issues as a lawyer rather than a political philosopher. He seems to think we can turn back the clock (and regain freedoms) by refiddling the rules.

In one respect, the author actually suggests we have too much freedom of speech. He says that "current First Amendment doctrine...probably protects implicitely threatening speech more than it should." This reveals that he is no principled libertarian, and that he thinks are rights are to be created and protected (or eliminated) by politicians and courts.

There is too much of the lawyer in this book and not enough of the sweeping libertarian analysis that permeated the thinking of the American founders.
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on November 14, 2014
A bevy of specious arguments. He complains that sexual harassment law impedes the free speech of employees but libertarians don't think private employees should have free speech rights anyway.
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on August 25, 2010
I hadn't thought of how antidiscrimination laws infringed on the 1st amendment, freedom of association until reading this book.
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VINE VOICEon March 28, 2004
"Whatever happened to civil liberties?" one might ask after reading this book. Since liberty is probably a more valuable value than enforced fake equality, it is a good question to ask. Whether one is politically left or right, there is something disturbing to consider in You Can't Say That. But I think we will always have problems handling liberty for all, because we often want total freedom for ourselves, but often unwilling to give the same type freedom to others with clashing values due to moral judgements. In a word, we wish to control others, but have total freedom for ourselves.

Another conclusion one may come to after reading the book is the question of whether liberty can survive in diverse environment where everyone has clashing loyalties and viewpoints. One example is given of an American who put up a picture in his work space disapproving of Iran hostage situation of 1979, which offended an Iranian working at the same company.

Control from rightists usually involves cracking down on artistic freedom especially if it has sexual content. One extreme example is given in a book in which a woman sued a city government for having a nude statue of a woman in the public square. (Although this woman could have been a feminist and therefore not necessarily on the right.)

Control from leftists usually involves disapproving of any type of discrimination, such as a religious person not wanting to rent their place out to unmarried couples or people who are straight and don't want to have a gay room mate. Lawsuits are filed which encroach upon freedom of association.

As far as civil rights lawsuits go, it is easy to second guess the official motivations for the lawsuits. Is the aggrieved party really being harmed or are they just smelling the money that a successful lawsuit can bring? Although tort reform is not discussed much, the author Bernstein does approximately say that we are subsidizing hurt feelings by rewarding money to the overly sensitive, which increases sensitivity and more frivolous lawsuits. --And let's face it, it's easier to win lawsuits than win the lottery.

Another reason for such lawsuits is that it is used to punish people whose viewpoints the one filing the lawsuit disapproves of. It has become a weapon in the culture war.

The workplace has become a rather stifling place to express oneself due to all the laws that pertain to creating a hostile environment. Nearly any non-bland statement or action could fall under hostile environment law. Again, one second guesses the real purpose of the law: Is it really about civil rights or does it just give government more work to do snooping into private sector where it does not really belong.

One of the worst organizations for encroaching on civil liberties is the government housing department HUD. Any protest against their activities can bring a lawsuit and they even control how a house can be advertised...

A lot of companies enforce oppressive civil rights laws not because they actually approve of them but because they want to avoid a bankrupting lawsuit.

Bernstein covers the American Civil Liberties Union and how it should really should start calling itself the American Civil RIGHTS Union since it is increasingly favoring civil rights over civil liberties.

Another interesting point is that those who try to restrict others' freedom of speech through hate speech regulation may one day find that same regulation will be used against their own free expressions. What goes around comes around...
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on February 18, 2004
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. The book is very well organized; it begins with a general background discussion of the problem including important contextual history and proceeds to discuss several related aspects of the problem including the threat to artistic freedom, workplace regulation, speech codes on public university campuses, the regulation of religious schools and the threat to the autonomy of private organizations. Some of the most enlightening material outlines the increasing tendency of the judiciary to defer to the bureaucratically promulgated regulations of such government agencies as HUD, the EEOC and the DOE, which often seem to view their own intentions as above criticism and attempt to censor and even legally punish individuals who express disagreement with their goals.
This is a book that should be widely read and debated, since the topic influences all individuals in a myriad of ways. I hope that the academic approach to the subject does limit the audience for the book to readers with a legal background; despite copious footnotes the book is very readable and many of the references and cases discussed are fascinating. Despite my long standing layman's interest in the area of Constitutional law and my exposure as a member of the Cato Institute Board of Directors to previous publications discussing various aspects of this topic, this is by far the most comprehensive and systematic treatment that I have seen. The final chapter includes a fascinating discussion of the gradual transformation of the ACLU from an organization that was a stalwart defender of civil liberties to one increasingly captured by the adherents to a "liberal" code of political correctness.
The conclusion then examines the trend in other countries to adopt even more draconian impositions of statist authoritarian regulations, e.g. an Australian ban on dating services that tried to match partners with a religious preference (perhaps antidiscrimination marriage regulations will follow) and a Canadian criminal conviction of a high school teacher purely on the basis of "hate speech". As a Canadian professor of constitutional law has opined, "Canada now is a totalitarian theocracy... ruled today by...a secular state religion [of political correctness]. Anything that is regarded as heresy or blasphemy is not tolerated." Such a result is consistent with the goals of such free speech opponents in this country as well known Professor Stanley Fish, who attempts to deconstruct our legal traditions in the same way that he has deconstructed literature and who claims that all decisions regarding allowable speech are political and based on an exercise of power. Therefore, according to Fish, the targets of offensive speech and acts have every right to be legally protected from the indignity (read psychological harm) which they might suffer as a result of such acts. Contrast this view and the current climate regarding the imposition of limitations on permissible speech with the 1943 Supreme Court decision which eloquently concluded "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
In summary, this book is about the conflict between an increasingly expansive view of civil rights versus the traditional primacy of civil liberties, and about the imposition of "civility" through political power and judicial reinterpretation of the Constitution rather than by argument and debate within civil society. As one reviewer cogently observed, this book might be deemed incomplete in that it does not include a discussion of the philosophical grounding of our First Amendment rights in the Founders' belief that these rights derived from the natural law view that we each possess a "property right" in ourselves and our actions. However, such an examination might easily have in fact become a distraction to the excellent focus which the book provides on the author's stated goal of examining and documenting the erosion of our civil liberties and the resultant implications for our personal freedom and privacy rights, thus I have chosen not to reduce my rating despite this omission.
Disclaimer: as stated above, I am a member of the Board of Directors of The Cato Institute, which published this book. While I do not feel that my objectivity was compromised in composing this review, I felt it incumbent upon me to disclose this fact to provide you, the reader, with the necessary information to decide if you believe that I have a significant conflict of interest which might have influenced my rating.
Tucker Andersen
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on October 7, 2004
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." 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. If courts have the power to tell us who we associate with, then free association does not exist.

As Bernstein notes, 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 battle continues.

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. A read of Bernstein's fine book drives that important point home.
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on April 12, 2004
David Bernstein has done something that most lawyers have a difficult time doing - he wrote a short, accessible book for a general audience. Since I have seen law review articles that are nearly half as long as this book, that is no small feat.
To me, the most important part of the book is Bernstein's consistent emphasis on how those arguing for laws that erode civil liberties might be shooting themselves in the foot. Any law that can be used to silence the speech of those whom you do not like can also be used to silence your speech. Whether this argument will prove compelling to those in favor of speech restrictions is a matter I will leave up to the reader. I will note, however, that in general, those in favor of using government to achieve their personal goals tend to believe that the political winds will always blow in their favor.
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on April 12, 2004
Antidiscrimination laws were once seen primarily as a means to help blacks, women, and others enter the economic mainstream. Those days have long since past. Bernstein shows that the laws are now seen primarily as enforcing a stringent moral code, one that is supposed to outweigh any competing claims, including claims of liberty backed up by the First Amendment and other constitutional rights. The Left has been the primary offender in this regard, but the Right, especially the religious right, is also willing to use antidiscrimination law to stifle speech they don't like. Especially pernicious are laws banning the creation of a "hostile environment", which are interpreted by some courts to ban any speech that any individual worker claims to find offensive. This book is an important warning, but it's also a good read. The first chapter, setting out a theoretical framework for why civil liberties should be protected against civil rights laws, is a little tough going, but after that it's a joy to read. Highly recommended.
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