• David E. Bernstein: You Can’t Say That! Cato Institute; 2003; 166pp.; $20
Chiseling away the restrictions on governmental power in the Constitution is a topic familiar to readers of these pages. For a long time, the First Amendment’s prohibition against laws that infringe upon freedom of speech remained relatively untouched by the desire of some people to use the power of the state to silence those whom they dislike. But, as Professor David Bernstein reports in You Can’t Say That! the First Amendment is now taking some heavy blows. Bernstein, a professor of law at George Mason University, is a strong civil libertarian who is worried about the legal trends away from the protection of free speech.
The old restrictions on free speech were mostly confined to “commercial” speech, which is to say, communications by businesses. For example, the National Labor Relations Act can lead to the imposition of sanctions on employers for saying things during the course of a unionization campaign that might unduly influence how the workers vote, such as promising benefits if the union is defeated. Troubling as it is, the commercial-speech exception was confined to the business world. The new threat to civil liberties, Bernstein argues, comes from America’s sweeping “antidiscrimination” laws and almost anyone might find himself in trouble for his speech or thoughts. The author puts it this way: “Intolerant activists are determined to impose their moralistic views on all Americans, regardless of the consequences for civil liberties.”
Before he discusses the numerous ways in which antidiscrimination laws are used to undermine our civil liberties, he takes on the preliminary question: Should the First Amendment take priority over the supposed need to stop any and all forms of discrimination? That might seem like a “no-brainer,” but there are quite a few scholars who disagree, contending that, as Bernstein writes, “First Amendment rights should be subordinated to antidiscrimination claims because the ‘constitutional value’ of equality as reflected in the Fourteenth Amendment is in tension with the First Amendment ‘value’ of freedom of expression.”
Bernstein quickly dispatches that argument. The Fourteenth Amendment applies only to government or its agents. When an individual says even the most flagrantly racist things, he is still protected from government sanctions by the First Amendment. The alleged “tension” between the “values” of the two amendments is merely a thin excuse for giving the state power to punish anyone who harbors politically incorrect sentiments. Going beyond the Constitution, though, Bernstein maintains that freedom of speech is too important to entrust it to bureaucrats, judges, and those intolerant activists.
The book is loaded with cases that illustrate the author’s concerns. For example, when the San Francisco Ballet’s preprofessional school rejected applicant Fredrika Keefer because she did not have the body type expected for ballerinas, her mother seized upon a city ordinance banning discrimination based on weight and height and sued. Even though Fredrika was able to dance elsewhere, the irate mother took the matter before the San Francisco Human Rights Commission. At the time of the book’s publication, the case was still pending, but Bernstein skewers the whole controversy: “Properly interpreted, the Constitution’s protection of free expression from government interference bars San Francisco from legislating ballet standards.”
Several cases deal with attempts by bureaucrats to punish individuals for having the temerity to oppose their plans for remaking the world. In one egregious case, several individuals spoke out against a proposed public housing project in Berkeley. The little dictators in the Department of Housing and Urban Development threatened them, saying that under federal law (the authoritarian “Fair Housing Act”), they could be fined up to $100,000 each and sentenced to a year in prison for their acts of “discrimination against the disabled.”
Bad publicity over the prosecution caused HUD to back down, but then the Department of Justice stepped in. Assistant Attorney General Deval Patrick was hot to pursue the case. In a statement revealing the mindset of antidiscrimination zealots, Patrick drew an analogy between political leaflets and baseball bats, arguing that it would be as bad to use one as the other if your intent is to violate civil rights laws. Fortunately, a federal judge tossed the case out, but it would be foolish to think that the wolf has been driven far from the door.
Bernstein concludes his book with a superb chapter on the American Civil Liberties Union.
Once a formidable defender of First Amendment rights, in recent years, the organization has largely succumbed to pressure from various “liberal” groups that want nothing to stand in the way of their agendas of increased state control.
A tip of the hat to David Bernstein for focusing attention on and so clearly discussing this serious problem.