You Cant Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws

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I think Excellent discussion of the ways that anti-discrimination laws are being used to trump and violate our Constitutionally guaranteed freedoms of speech, religion and association. I think everybody should read this book. Jan 19, Daniel rated it liked it. This is an interesting and easy-to-read overview of some of the pitfalls of anti-discrimination policies in the US, however it is let down by Bernstein's myopic analysis and selection of examples.

You Can't Say That! The Growing Threat to Civil Liberties from Anti-Discrimination Laws

Bernstein clearly opposes these policies and has set-out to expose them, but in doing so he has neglected to examine any cases where they have been employed successfully and his suggestions for improvements feel a little tokenistic. Sep 29, Lynn Schlatter rated it liked it Shelves: history-politics , nonfiction. This book was a difficult read for me.


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Writing from a conservative and fifteen-year-old perspective, Bernstein lays out as ridiculous some anti-discrimination actions that I think of as perfectly sensible, like an unmarried couple suing over a landlord's refusal to rent to them or the introduction of a university president's public statements as evidence of intent to discriminate. So then I have to ask myself if I'm really as much of a free speech absolutist as I think I am.

Compounding the This book was a difficult read for me. Compounding the problem is Bernstein's completely reasonable assertion that in the name of inclusivity, we are becoming more comfortable with tamping down pluralism, a concept that depends on people being allowed to express opinions that are abhorrent. American history is rife with disagreements over the relative importance of freedom and equality.

Currently, some Progressives seem to have arrived at the conclusion that we can't afford First Amendment rights, which include not only free speech, but also freedom of religion and association, because they're just too damaging to historically oppressed peoples. It's hard to argue with the idea that there's something wrong with a religion that elevates hatred over love or a person who persists in viewing those who are different as inferior, so why not just legally sanction both such entities?

My best answer is I don't think making it a crime to express vile opinions will actually eliminate them. Engagement with the people who hold them seems a better long-term solution, and that requires freedom of expression on all sides. So it turns out that in general I agree with Bernstein that First Amendment rights should be protected from the encroachment of anti-discrimination law, even though I'm leery of some of the specific activities he thinks should be covered by that. And I'm grateful to him for writing the book so I could give some thought to why I feel the way I do about those things.

Jul 22, John rated it really liked it. Bernstein is to be commended for placing his book and argument in the political middle whenever possible, by warning both right and left that laws that squash their ideological enemies' words can and will be used against them all too soon. He backs up his claims with concrete examples on both sides of the fence. Perhaps the most powerful anecdote is how a radical black feminist professor in Canada was charged with hate speech Surely this was exactly the person antidiscrimination laws were originally meant to protect!

Although at times Bernstein comes off as overly alarmist, he just as quickly throws out specific case rulings that back up his concerns. He does seem a bit obsessed with HUD; in the first half, one wonders why he didn't write a whole other book on HUD's witch hunts.

You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws.

Occasionally, Bernstein betrays his conservative leanings by mocking Clinton's famous sound bites of the s which badly dates this book as a product of the 90s, rather than its copyright date , and by using phrases such as "avowed" homosexuals p as if it were merely a political party, rather than, eg, "out" gay men. Is Bernstein an "avowed" Jewish-American? This kind of misstep detracts from Bernstein's goal of taking to task those who twist the meaning and wording of laws for their own ends.


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  • The book suffers from 90s hangover. Yes, there was a cultural explosion of PC in the early s, and this obviously inspired Bernstein to write this. It does not detract from his mission that things swung back to the right after - the message is just as valid as increasingly polarized right and left pundits shout back and forth on endless cable channels and blogs. However, this book badly needs -- and well-deserves -- an update to consider the Bush years, the current governmental focus on terrorism, the Patriot Act, the mortgage crisis, the economic crash, the Occupy protests, and the first black US president.

    Bernstein's critical eye is needed more than ever - I for one can't wait to see him pull away from the 90s and update this important work! A very good case for civil liberties, even if you don't agree with all his arguments. I left with a greater appreciation for the importance of our First Amendment rights, and a recognition that antidiscrimination laws can potentially violate them.

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    I agree that Americans need to be a little more tough-skinned. We've come to the point where being offended is almost a virtue. We need to tolerate the politically incorrect in order to preserve First Amendment rights for everyone. First Amendment A very good case for civil liberties, even if you don't agree with all his arguments. First Amendment rights help everyone-- even in the midst of the Civil Rights movement, a racist South couldn't take away the First Amendment rights of civil rights protesters.

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    Sep 19, Michael Wheatley rated it liked it. Addresses the conflict between legislative action to curb discrimination and the the first amendment. Argues that in many cases judges have allowed anti discrimination laws to override constitutional rights. Alex Macd rated it really liked it Oct 09, David Larsen rated it really liked it Oct 05, Ryan rated it really liked it Oct 05, Sheikh Tajamul rated it really liked it Mar 21, Helen Andrews rated it really liked it May 08, Emily rated it really liked it Aug 13, Anton Sorkin rated it liked it Jan 09, Brian Foltz rated it liked it Aug 16, John McGrath rated it really liked it Jan 14, Daniel rated it it was amazing May 31, LPenting rated it did not like it May 06, Charles rated it it was amazing Jul 24, Ray rated it liked it Jan 30, Krishan Zaveri rated it really liked it Nov 17, Ben rated it it was amazing Nov 14, Tim Coussens rated it liked it Nov 10, Speech can be dangerous, but not as dangerous as putting the government in charge of policing it.

    Bernstein worries that if race theorists and feminists win this debate, and antidiscrimination laws are allowed to supersede civil liberties, then our first amendment freedoms will not long survive. Chapter 1 was powerfully argued, convincing, and also quite readable. Bernstein makes his case. In the workplace the line between protected speech and a hostile environment is fuzzy, so the prudent employer prohibits anything sexual, religious, or racial that comes close.

    This results in an implicit but nonetheless chilling nationwide speech code banning any speech that could offend protected groups. Cases are often heard by administrative bodies who are slanted toward plaintiffs because, unlike courts, they have responsibility for enforcing antidiscrimination laws, but not for upholding civil liberties. One flaw in Chapter 2 is that Bernstein is dismissive of the captive audience argument in the workplace.

    Better to admit that the harm imposed by offensive speech can be real, and the price of avoiding it can be high, but the speech is nevertheless protected because those costs are outweighed by the costs of banning the speech. Chapter 3 concerns the threat to artistic freedom posed by antidiscrimination laws. He believes that the arts are under attack from feminists, prudes, prima donnas, reactionaries, and government bureaucrats, all of whom want the arts and entertainment world to conform to their vision of a good society.

    It is only the first amendment, he says, that prevents a return to artistic censorship under the guise of combating discrimination.

    As is typical of books that are critical of a particular trend in the law, Bernstein attempts to prove his point with the most extreme examples he can find, such as the mother who thinks her overweight daughter should be accepted for ballet training. By itself this does not prove that laws prohibiting discrimination against the obese are completely unreasonable.

    For example, there is nothing ridiculous about requiring a theater to install a few wider seats for portly customers. Even the slightly out-of-shape adult who has sat in a student desk knows that they are comfortable only for the slim. But unlike lesser authors, Bernstein does not include only egregious examples. In the subsequent chapters Bernstein continues to present useful examples and coherent argument to show that speech, associational rights, privacy rights, and freedom of religion are all under attack.

    Remarking that women are less competent than men in a certain field is hate speech, even if true. Employers who rely on word of mouth advertising may be courting serious trouble, no matter how cost-efficient such advertising may be. Private male-only organizations Jaycees, Rotary, Boys Clubs are considered public accommodations and thus are forced to accept women members. Religious schools who frown upon premarital or extramarital sex are compelled to employ teachers who are both single and pregnant.

    Religious landlords are compelled to rent to unmarried heterosexual couples. There are places where one cannot reject a potential roommate based on race or sexual orientation. Even when roommates are entitled to discriminate on these grounds, they are often not allowed to advertise their preferences, so time and money is wasted interviewing incompatible applicants. Women-only health clubs have, in some places, been forced to admit men as members or hire men as employees. Universities receiving federal funds must maintain detailed records of all student and employee applications, academic records, and the like, broken down by race, sex, age, ethnic origin, and submit them upon demand to federal authorities.

    Title IX dictates which sports a university can offer, whether feminist scholars must be tenured, and whether speech codes are necessary.

    Human Rights & Civil Liberties Distinguished

    It supported the unmarried couples against the religious landlords. He concludes with a plea that the ACLU will return to its purpose of defending civil liberties, rather than its new role as a liberal organization fighting against discrimination. Courts, for their part, should not give antidiscrimination laws special status. Citizens, for their part, should organize and defend civil liberties. According to Bernstein, we must all learn to tolerate some amount of offense and to understand that the diminution of civil liberties in order to achieve a false equality will diminish our protection from the power of government.


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