You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscriminatio: By David E. Bernstein, 197 pgs. By Todd Taylor

Aug 06, 2007

This book, written by a law professor, does a great job in exploring the dangerous slippery slope set up by antidiscrimination laws. Be forewarned that the wording in the book is often difficult and that many passages warrant careful re-reading to fully grasp what Bernstein is talking about it. It’s worth the effort, though, because there’s a big pay off if you follow him all the way through to the end.

The book asks a pretty simple question. What do you want more – the freedom of speech that’s guaranteed under the First Amendment or ever-more-exacting legal recourse each and every time a party feels offended? Bernstein makes the convincing argument that America can’t have both. It’s either keep the First Amendment as it stands – and live with irritations – or start chiseling at its base. Surely, it sucks that white power groups have the right to march through the streets, targeting neighborhoods heavily populated with holocaust survivors. But make no mistake; the laws that protect contemptible, vile, and outrageous behavior are the very same laws that protect progressive organizations and institutions.

You Can’t Say That! contends that if the law opens up more and more for a broader definition of offenses to be considered “discriminatory,” the more likely people are going to feel offended. That makes sense. Loosen the definition and more folks fall under its umbrella. However, at what point does being offended or contending you’re being discriminated against reach beyond actual damage, out of the realm of logic (or linguistics) and into absurdity? A city official in Washington D.C. was forced to resign due to using the word “niggardly,” solely due to its proximity to a well-known derogatory word. If you don’t believe me of the definition, look up niggardly. It means miserly. No, I don’t think calling people derogatory words is an awesome pastime, but I also think it’s dangerous to condemn words – and the people who use them – solely due to the word’s phonetic proximity to another word. What’s next? I can’t say “nice bunt” in baseball because someone might think it’s too close to a vulgar word for vagina?

Let’s clarify a term. Discrimination. We all discriminate, from the music we listen to (no rap metal for me), to the clothes we wear (hello Goodwill), to what we put in our bodies (hello Lucky Lager). A lot of discrimination reestablishes our identity: what we put into our bodies, our sense of self, and our communities. No? Gay bars. Comic book stores. Vegetarian restaurants. Punk rock music. All-women gyms. These are all available and possible because, for instance, like minded homosexual folk don’t want to swim in the seas of heterosexuality if they can go directly to the wellspring of the type of partner they’re looking for. I think this is a good thing. But, as we know, discrimination isn’t all roses and lollipops. Bernstein maintains that, “If civil liberties are to be preserved, Americans will need to develop thicker skin. One price of living in a free society is having to tolerate those who intentionally or unintentionally offend you.”

Let’s look at the two-edges of this sword. Bad people – such as the KKK – discriminate by race. Good people – such as universities – also discriminate by race.

Can’t we stop folks like the KKK with a law that prohibits what they say and what they do? Why not legally scrape all “bad” discrimination away? There are repercussions that may not be immediately obvious. The problem is that to fully limit “bad” discrimination, it’s almost impossible to not infringe on “good” discrimination. It may sound counterintuitive, but it is the exact set of laws that allows the KKK to practice discrimination against African Americans are the laws that legally protect the rights of private universities to discriminate in African Americans’ favor. Take away the Klan’s right and, poof, there go the legal legs for affirmative action.

Discrimination law often backfires on the very people who push them through. It’s already happened in Canada. A law, drawing heavily from a feminist censorship advocate Catherine MacKinnon, was drafted to provide constitutional protection to women and other “victimized” groups of discrimination depicted in a “degrading” or “dehumanizing” manner. It became illegal in Canada to advocate the traditional Christian opposition to homosexual sex. Progress, right? Yet, one always has to think, “How is the law which was just passed with good intentions going to be used against me?” Canadian officials took no time in using the exact wording of the new law for their customs to seize Pornography, a collaboration by one of feminism’s most outspoken proponents, Andrea Dworkin. The new law has been heavily used against the very people who pushed it through.

            In the end, it’s a classic example of being careful of what you ask for. Is America willing to risk the possibility of being offended for the first right it gave to itself: the freedom of speech?

            –Todd (Cato Institute, 1000 Massachusetts Ave., N.W., Washington, DC 20001)       

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