Shut Up! Or Iíll Sue
December 7, 2003
By Walter Olson
You Can't Say That! The Growing Threat to Civil Liberties From Antidiscrimination Laws by David Bernstein, Cato Institute, 197 pages, $20
IF you're looking to start an argument, take this book to an ACLU meeting.
Most ACLUers co-enshrine civil rights and civil liberties as ideals that blend together in perfect harmony, or even amount to the same thing. But George Mason University law professor David Bernstein makes a strong case that the two are locked in a tight struggle these days, with many seeming advances for the cause of civil rights (or more specifically, antidiscrimination law) spelling bad news for the cause of civil liberties.
As Bernstein notes, laws to punish bias on the basis of national origin, sex, handicap and so forth have expanded to "regulate just about all aspects of American life," right down to choice of roommates ("[your category]-seeks-same" apartment-share ads now can bring legal trouble). Along the way, painful bites keep being taken out of older liberties.
* Free association: While the Boy Scouts averted being declared a public accommodation, it's now accepted that the law can dictate membership policies to private social clubs.
* Free speech: Your employer may now face liability if you crack jokes or talk politics at work and a co-worker complains of a "hostile environment."
In fact it's hard to find a traditional civil-liberties concern that hasn't suffered.
Free exercise of religion? Church schools can now get sued for marital-status discrimination if they shun unwed-but-pregnant teaching applicants. Academic freedom? Beware the campus speech code. Privacy? The rights of the accused? In short supply for those hit with a flimsy bias-law claim, as Bill Clinton learned to his sorrow in the Paula Jones sexual-harassment case.
A lot of this happened because many civil libertarians ditched their original principles.
One low point was when the federal government's Department of Housing and Urban Development decided to begin pressing fair-housing charges against local citizens for having the nerve to organize against the placement of housing projects in their neighborhoods. (It later backed off.)
Bernstein recounts one incredible episode when the Virginia ACLU filed a legal complaint against local residents for opposing one such housing venture. They lost when the state pointed out that the residents had a right to speak freely and petition their government. The state bureaucracy thus showed itself to be more sensitive to civil liberties than the local ACLU.
Bernstein, a contributor to the influential weblog volokh.com, pulls together plenty of other horror stories, including the case of the Denver officials who, yielding to American Indian complaints, made the organizers of the Columbus Day parade promise not to mention Christopher Columbus. Yet his book is several cuts above the ordinary entry in the PC wars, combining legal analysis with an easy-to-read style and merciful brevity. (Disclosure: He and I once co-wrote a law review article, and he cites me favorably.)
He's also fair enough to note that the trends aren't all bad: Courts have stood firm in defense of some of the threatened liberties (especially speech), and there are still many genuine civil libertarians within the ACLU who'd like to steer it back to its principles. This book should give them some help.
Walter Olson is senior fellow at the Manhattan Institute. He edits Overlawyered.com.
©2003 New York Post
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