You Can't Say That! the Growing Threat to Civil Liberties from Antidiscrimination Laws

By Leef, George C. | Freeman, November 2004 | Go to article overview

You Can't Say That! the Growing Threat to Civil Liberties from Antidiscrimination Laws


Leef, George C., Freeman


You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws by David E. Bernstein Cato Institute * 2003 * 166 pages * $20

The chiseling away of constitutional limits on government power is a topic familiar to readers of these pages. For a long time the First Amendment's prohibition against laws that infringe freedom of speech remained relatively untouched by people who would like to use state power to silence their opponents. But as David Bernstein, a George Mason University law professor, reports in You Can't Say That! the First Amendment is now taking some heavy blows.

The old restrictions on free speech were mostly confined to "commercial" speech, communications by businesses. That was bad enough. 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. "Intolerant activists are determined to impose their moralistic views on all Americans, regardless of the consequences for civil liberties," Bernstein writes.

Before discussing the numerous ways this new threat shows itself, Bernstein takes on the preliminary question: Should the First Amendment take priority over the supposed need to stop 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 only applies to government. When an individual says even the most flagrantly racist things, the First Amendment protects him from government sanctions-or should. 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 the wrong sentiments. Going beyond the Constitution, though, Bernstein maintains that freedom of speech is too important to entrust to bureaucrats, judges, and those intolerant activists. "Although much private speech is wrongheaded or even dangerous," he writes, "it is even more dangerous to put the government in charge of policing it. …

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