Conclusion

As argued throughout this book, antidiscrimination laws should not be exempt from the First Amendment’s and other constitutional provisions’ limits on government power. The contrary position, increasingly promoted in law reviews, the popular media, and legislatures throughout the United States, is that antidiscrimination considerations should almost always override any competing concerns, including First Amendment rights. The primary rationale for antidiscrimination law is no longer bringing previously marginalized groups into the economic mainstream. Rather, antidiscrimination laws are justified on the ground that the offense taken by people who face discrimination is an especially serious moral harm—so serious, in fact, that even antidiscrimination laws with no direct economic impact should be exempted from the Constitution’s protection of civil liberties. For example, many distinguished academics argue that because of the offense taken by the listener, even the core First Amendment protection of freedom of speech must yield to ‘‘hate speech’’ laws targeting malicious (and sometimes merely inadvertently offensive) speech.1

Punishing expression because it creates offense has absurd and totalitarian implications. This has been amply demonstrated on university campuses that have prohibited their faculties and students from offending each other in politically incorrect ways. Sarah Lawrence College, for example, a small liberal arts school in Bronxville, New York, punished a student for ‘‘inappropriate laughter’’ after snorting when his roommate called another student a ‘‘fag.’’ Other colleges have banned inconsiderate jokes, speech that threatens a student’s self-esteem, inappropriate eye contact (or lack thereof), and licking one’s lips in a provocative manner.2

More generally, campus intolerance of any speech deemed offensive to designated victim groups has led to serious miscarriages of justice, as campus activists groups use speech codes to suppress dissent from politically correct orthodoxy.3 One egregious example of the precarious state of freedom of expression on campus is the blind eye that is turned to the theft and destruction of campus newspapers containing stories or advertisements deemed offensive—a modern campus analogy to book burnings (worse, in a way, because book burners at least often own the books they incinerate). This widespread practice is generally tolerated by university administrations even though it evinces a decidedly authoritarian intolerance for open debate. Private universities have the right to enact and enforce foolish policies. Campus authoritarianism, however, may very well provide a glimpse at the sort of antidiscrimination policies that will be pursued at all levels of American government if civil liberties protections are not maintained.

One of the easiest ways to understand the frightening implications of eroding civil liberties with antidiscrimination policies is to take a look at English-speaking democracies in which the sensitivity police have made more gains than they have in the United States. In 1990, for example, the Canadian Supreme Court upheld hate speech laws against a freedom of speech defense. James Keegstra, a public high school teacher, had consistently propagated Holocaust denial and anti-Semitic views to his public high school students, despite repeated warnings from his superiors to stop. Even in the United States, someone in Keegstra’s position could be disciplined, even fired, for ignoring his obligations to stick to his assigned curriculum, and for using his classroom as a forum for promoting hatred (see Chapter 5). Instead of merely firing Keegstra, the Canadian government arrested him. Keegstra was convicted of the crime of ‘‘willfully promoting hatred against an identifiable group,’’ which carries a penalty of up to two years in jail. On appeal, the Canadian Supreme Court upheld the conviction, despite the Canadian Constitution’s protection of freedom of expression. Criminalizing hate speech, the Court stated, was a ‘‘reasonable’’ restriction on expression, and it therefore passed constitutional muster.4

Two years later, the Canadian Supreme Court held that obscenity laws are unconstitutional to the extent they criminalize material purely on the basis of its sexual content. However, any ‘‘degrading or dehumanizing’’ depiction of sexual activity—including material that the First Amendment would clearly protect in the United States—was deprived of constitutional protection to protect women and other ‘‘victimized’’ groups from discrimination.5 The opinion drew heavily on language from a brief coauthored by the feminist censorship advocate Catharine MacKinnon.

The inevitable result of these decisions has been the gradual but significant growth of censorship and suppression of civil liberties across Canada. The Canadian Supreme Court, meanwhile, turned down an appeal by a Christian minister convicted of inciting hatred against Muslims. An Ontario appellate court had found that the minister did not intentionally incite hatred, but was properly convicted for being willfully blind to the effects of his actions. Robert Martin, a professor of constitutional law at the University of Western Ontario, commented that he increasingly thinks that ‘‘Canada now is a totalitarian theocracy. I see this as a country ruled today by what I would describe as a secular state religion [of political correctness]. Anything that is regarded as heresy or blasphemy is not tolerated.’’6

Indeed, it has apparently become illegal in Canada to advocate traditional Christian opposition to homosexual sex. For example, the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix newspaper and Hugh Owens to each pay $1,500 (approximately $1,000 U.S.) to each of three gay activists as damages for publication of an advertisement placed by Owens conveying the message that the Bible condemns homosexual acts.7 The ad conveyed this message by citing passages from the Bible, with an equal sign placed between the verse references and a drawing of two males holding hands overlaid with the universal nullification symbol—a red circle with a diagonal bar. In another incident, after Toronto print shop owner Scott Brockie refused on religious grounds to print letterhead for a gay activist group, the local human rights commission ordered him to pay the group $5,000 (approximately $3,400 U.S.), print the requested material, and apologize to the group’s leaders. Brockie, who always accepted print jobs from individual gay customers, and even did pro bono work for a local AIDS group, is fighting the decision on religious freedom grounds.8 An appellate court has upheld the fine, though it did add that it would have ruled the other way had the material in question impinged more directly on Brockie’s ‘‘core beliefs,’’ such as a publication advocating homosexual behavior.9 As of this writing, another appeal is pending, with Brockie already having spent $100,000 (approximately $68,000 U.S.) in legal fees.10

Any gains the gay rights movement has received from the crack-down on speech in Canada have been Pyrrhic, because as part of the Canadian government’s suppression of obscene material, Canadian customs frequently target books with homosexual content. Customs seizures have included Pornography , a book by MacKinnon collaborator and prominent feminist Andrea Dworkin, and several serious novels. A gay organization had to spend $14,000 (approximately $9,600 U.S.) in legal fees to force customs agents to allow The Joy of Gay Sex into the country. Police raids searching for obscene materials have disproportionately targeted gay organizations and bookstores. Two gay activists at the University of Toronto were fined for selling Bad Attitude, a lesbian magazine with sadomasochistic content.11 According to the ACLU, ‘‘more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some materials suspended by the government.’’12 The Canadians are, therefore, living proof of the way progressive censorship rules can come back to bite the constituencies that endorsed them.

One Canadian incident, at least, had a satisfactory ending. The Canadian teachers’ accreditation authority attempted to refuse accreditation to graduates of Trinity Western University, a private Christian institution in British Columbia, claiming that they are too bigoted to become teachers because they agree as students to abide by traditional Christian teachings about sex by refraining from ‘‘pre-marital sex, adultery, and homosexual behavior.’’13 The Canadian Supreme Court ordered that TWU alumni be deemed eligible for accreditation. Nevertheless, civil liberties in Canada remain in jeopardy, and a great deal more censorship in Canada seems inevitable. British Columbia, for example, has an extremely broad hate speech law that prohibits the publication of any statement that ‘‘indicates’’ discrimination or that is ‘‘likely’’ to expose a person or group or class of persons to hatred or contempt.14 It seems highly probable the worst is yet to come from the Canadian thought police.

Things look equally bleak in Australia. In 1998, The Australian Financial Review published a short opinion column on the Middle East by journalist Tom Switzer. In his piece, Switzer wrote that ‘‘the Palestinians cannot be trusted in the peace process.’’ Switzer also noted that since 1993 the Palestinians had engaged in more than 300 terrorist attacks against innocent Israeli civilians, and so ‘‘it would appear that the Palestinians remain vicious thugs.’’ When the local Palestinian Authority representative filed a complaint with the New South Wales Anti-Discrimination Board, a tribunal found the publisher guilty of inciting hatred against Palestinians in violation of the racial vilification provisions of the Anti-Discrimination Act. This ruling was later overturned on appeal, but in a narrow decision that gave little comfort to free speech advocates. Similarly, an Australian radio talk-show host was fined $6,000 (approximately $3,600 U.S.) for making disparaging comments about Aborigines while criticizing a recent fair housing decision.15 Meanwhile, outspoken left-wing Australian columnist Phillip Adams was investigated for ‘‘racial vilification’’ of Americans after he wrote an anti-American column in the wake of the terrorist attacks of September 11, 2001.16 This led an American wag to write to The Sydney Morning Herald , ‘‘The next time [Adams] bitches the US out, even if she deserves it, he ought to consider the fact that, here at least, he would be left alone. Sorry, Phil. Them’s the breaks, I guess.’’17 Beyond their poor showing with regard to protecting speech deemed offensive to protected classes, Australian courts have also banned Jewish and age-specific dating services as discriminatory.18

The ban on Jewish dating services was eventually overruled, following public ridicule. But the authoritarian logic of the antidiscrimi-nation movement is inexorable, and supports the original anti– dating service ruling. If, as antidiscrimination activists argue, all discrimination against members of identifiable groups should be punished, then group-specific dating services, which inherently exclude other groups, should be banned. Never mind individual preferences in choosing compatible life partners—antidiscrimination goals are more important. An article in the Harvard Law Review even argued that race-specific personal ads should be banned (no more SWF or SBM), though the author conceded that enabling legislation is unlikely, for now.19

In fact, when one honestly applies the logic of the antidiscrimination movement, it is difficult to fault the law review article’s conclusion that personal ads should be forcibly shorn of discriminatory preferences. Modern antidiscrimination ideology suggests that those who refuse to date (and, therefore, to ultimately marry) members of certain groups should be punished. After all, discriminatory dating not only offends those excluded, but, given the difference in median wealth among groups, it is also a leading cause of societal inequality. Taken to their logical ends, antidiscrimination principles suggest that singles in the dating market should be prohibited from preferentially choosing African Americans or whites, the able-bodied or the disabled, Catholics or Protestants, or even same-sex or opposite-sex partners, lest offense and inequality result.

Once the folly of this reductio ad absurdum is conceded, it becomes clear that some limits must be placed on the scope of antidiscrimination law. The only question is where to draw the line, and the First Amendment is the obvious place to start. Mainstream liberal civil libertarians, as represented by the ACLU, agree that the pursuit of antidiscrimination objectives must be limited by constitutional restraints on government power. However, they often believe that the First Amendment should only prohibit laws that regulate pure speech, such as hate speech laws and hostile environment regulations. By contrast, they believe that laws banning discriminatory acts—such as public accommodations laws that prohibit private organizations from banning gays from membership or employment discrimination laws that prevent church schools from firing teachers who get pregnant out of wedlock—should be beyond the reach of First Amendment. Defenders of such laws draw analogies to trespass, copyright and trademark infringements, and other acts that often have expressive aspects, but that can nevertheless be banned without violating the First Amendment.

Adopting this reasoning would have dangerous consequences because in contrast to trespass and other torts that may also have expressive aspects, antidiscrimination law has no clear definitional boundaries. The concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? The U.S. Department of Education has proposed that using such tests in college admissions be considered discrimination against groups that get below-average scores.20 Is a credit card company denying applications to the non-creditworthy? That’s discrimination based on financial status. (Sound absurd? Tell it to the New Zealand Human Rights Commission, a body modeled after American civil rights enforcement agencies, which has determined that refusing service on credit to a customer who is unemployed, has no credit card, earns less than $10,000 [approximately $5,500 U.S.] a year, and does not own a home is illegal discrimination on the grounds of employment status.)21 Is an employer hiring only the best qualified candidates? Well, that might be discrimination against everyone else!

The obvious retort from exasperated antidiscrimination activists is that only laws prohibiting ‘‘real’’ discrimination should receive constitutional exemption. Legislatures and courts should not allow the definition of discrimination to expand beyond what is reasonable. The problem is, of course, that there is no consensus about what constitutes ‘‘real’’ discrimination, nor does there appear to be any principled definition that legislatures have followed. What counts as discrimination will always depend on which interest groups have the power to influence legislatures to define their particular goals as antidiscrimination goals, and not on any objective definition of discrimination.

Already, definitions of discrimination have proven extremely tractable. Some define discrimination as treating the alike unequally on the basis of invidious preferences, but, even outside of the controversial area of affirmative action preferences, antidiscrimination law does not always follow this definition. The Americans with Disabilities Act defines discrimination not only as the unwillingness to treat the disabled and nondisabled alike but also as the unwillingness to make ‘‘reasonable accommodations’’ for the disabled. In the first enforcement action under the ADA, the government ordered a company to pay for a full-time sign translator for a hearing-impaired student in its review class for the CPA exam, even though the interpreter cost far more than the student’s tuition.22 Undertaking this measure was obviously not treating the hearing-impaired student just like everybody else.

Similarly, Title VII of the 1964 Civil Rights Act’s ban on discrimination based on religion actually mandates preferential treatment for religious employees. The statute requires that employers accommodate the religious beliefs and observances of their employees, unless doing so would cause the employer ‘‘undue hardship.’’ Some hardship to the employer, which in economic terms constitutes a subsidy to the religious employee, is mandated where necessary.23 If failure to give members of a group a subsidy constitutes discrimination, then just about any law can be defined as an antidiscrimination statute that is potentially exempt from constitutional limitations. In short, exempting antidiscrimination laws from the civil liberties protections manifested in the Constitution might destroy those protections.

* * *

Although much legal writing focuses on court decisions and the resulting legal precedent, responsibility for preserving civil liberties rests first and foremost with the legislative branch of government. Courts can only correct the constitutional mistakes of legislatures. Legislatures can avoid these mistakes in the first instance, and, when appropriate, provide protections for civil liberties that go beyond minimum constitutional requirements. Moreover, courts are influenced by the political winds, and are more likely to protect civil liberties when they see concern for such liberties emanating from legislatures.

Conscientious legislators should halt the expansion of antidiscrimination law, and, wherever possible, reduce its scope. There should be a presumption of freedom of association, both because such a presumption protects freedom in and of itself—what is freedom if it does not include some protection of the right to choose one’s associates?—and because the growth of antidiscrimination law creates inevitable conflicts with civil liberties and diminishes the autonomy of the institutions of civil society that serve as buffers between the individual and the state.

A good start for legislatures concerned with civil liberties would be to roll back public accommodations laws (see Chapter 7) so that they apply only to truly public commercial entities such as restaurants, theaters, hotels, and stores—not to private clubs and associations. Other legislative tasks beckon. Sexual harassment law should be modified to explicitly prohibit constitutionally protected speech from being used to support a hostile environment claim (see Chapter 2). In addition, state universities should be more closely monitored to ensure that they are protecting student and faculty freedom of expression (see Chapter 5).

Given the precarious state of constitutional free exercise rights in the federal courts (see Chapter 9), legislatures have become the primary guardians of religious freedom from the excesses of antidiscrimination laws. A few states lack religious exemptions to their antidiscrimination laws, an oversight that should be remedied. Many states are protecting free exercise through state laws that create a presumption that religious activity should not be impinged upon by legislation. These laws should not be altered to include special exemptions for antidiscrimination laws, as the ACLU and many other liberal groups have advocated.

The religious exemptions that do currently exist should be broadened to explicitly include such things as allowing small-scale religious landlords to refuse to rent to unmarried couples. Such landlords have little effect on the housing market, but forcing them to rent to cohabitating unmarried couples interferes with their perceived religious duties (see Chapter 10). Church schools, meanwhile, should be free to fire teachers who disobey church doctrine, such as by getting pregnant out of wedlock (see Chapter 9). Even if the legislature believes that this is morally repugnant discrimination, ‘‘its direct effects are purely internal to the religious group; only those who chose to become part of the religious community . . . are governed by its rules.’’24 It is unfair and illogical to allow a teacher to claim the benefits of teaching at a religious school while retaining the right to sue the school for upholding the rules of its religion.

Legislatures must also monitor courts and administrative agencies to ensure that they are not interpreting antidiscrimination laws more broadly than is warranted either by the language of the statutes or by legislative intent. Some legislatures have been notably quiescent in this regard, allowing antidiscrimination laws to be applied wildly beyond their intended scope. The New Jersey legislature, for example, has allowed the New Jersey Supreme Court to make a mockery of its public accommodations law. As described previously (see Chapter 7), that court has held that the state’s public accommodations law applies to everything from Little League baseball to small private eating clubs to cat fanciers’ clubs to the Boy Scouts of America. Several states have allowed their administrative agencies and courts to interpret fair housing laws banning discrimination on the basis of marital status to include protections for unmarried heterosexual couples, despite rampant discrimination by the states themselves against such couples in other contexts (see Chapter 10). By contrast, the Madison, Wisconsin, City Council properly stepped in when local courts and agencies decided that the city’s fair housing law applied to the residents’ choice of roommates, albeit too late to save Ann Hacklander-Ready from a financially ruinous lawsuit (see Chapter 11).

The task for courts, meanwhile, is simple—do not give antidiscrimination laws special status, either in statutory interpretation or in constitutional analysis. On the statutory interpretation front, courts have been prone to expansively interpret antidiscrimination laws, to the point at which the language of the statutes in question cannot bear the weight of the interpretations. Courts justify this bias on the grounds that they are acting consistent with the ‘‘purpose’’ of the laws, such as when the Supreme Court asserted that ‘‘eradicating discrimination’’ was a ‘‘central statutory purpose’’ of Title VII of the 1964 Civil Rights Act.25 Yet an examination of the statute reveals that its provisions are consistent with the purpose of reducing discrimination, not eradicating it. For example, Title VII applies only to employers with more than 15 employees, contains special damage caps and limitations, requires Equal Opportunity Employment Commission approval before private plaintiffs may file suit, and contains a religious exemption.26 If Congress’s goal had been to completely eliminate all discrimination, these caveats would not have been included.

With regard to constitutional analysis, from the mid-1970s through the early 1990s, the Supreme Court consistently favored antidiscrimi-nation laws over constitutionally protected civil liberties. The Court often did so by tendentiously construing the facts of cases to allow it to evade conflicts between antidiscrimination laws and the First Amendment. Beyond that, the Court suggested that when such conflicts do arise, preventing discrimination is such a ‘‘compelling interest’’ that, for reasons never clearly explicated, antidiscrimination statutes trump constitutional rights. Fortunately, the Court has recently backed away from such slipshod reasoning. The results of Boy Scouts of America v. Dale (see Chapter 8) suggest that all nine justices have all but abandoned the ‘‘compelling interest’’ reasoning, and that five of the justices are now willing to directly confront conflicts between antidiscrimination laws and civil liberties. Thankfully, the Court seems on the verge of treating antidiscrimination laws as normal statutes, subject to standard rules of constitutional and statutory interpretation.

Ultimately, defending civil liberties from antidiscrimination laws is not only a job for courts and legislatures. Citizens, too, have a responsibility to organize and defend these civil liberties against the encroachment of laws promoting social equality. In some states, the ACLU is still dominated by traditional civil libertarians and these state chapters could become the nucleus for a movement to restore protection of civil liberties to the top of the national ACLU’s agenda. A revitalized, consistently civil libertarian ACLU would lose some of its more authoritarian members, but it could lure back principled civil libertarians, such as author Nat Hentoff, who have quit in protest of the organization’s neglect of, and sometimes outright opposition to, civil liberties. Such an ACLU would also attract libertarian-leaning conservatives who currently distrust the organization’s creeping statism, giving the organization a broader and therefore more influential base.

Citizen support can also help other organizations fill at least part of the vacuum currently left by the ACLU’s neglect of civil liberties. In particular, the Foundation for Individual Rights in Education, founded by attorney Harvey Silverglate and Professor Alan Kors of the University of Pennsylvania to protect civil liberties on college and university campuses, has the potential to become a broad-based, ecumenical, civil libertarian organization. The Center for Individual Rights has also done yeoman’s work in defending civil liberties from antidiscrimination laws, and deserves support for its efforts.

Finally, 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. The current trend, however, is to give offended parties a legal remedy, so long as the offense can be construed as ‘‘discrimination.’’ Yet the more the American legal system offers people remedies for offense, the more they are likely to feel offended. This is true for two reasons. First, as economists point out, when you subsidize something, you get more of it. Therefore, if the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Second, economists have also noted the psychological endowment effect, which, in effect, means that people tend to consider something they own to be more valuable than it would be if they did not own it. Similarly, once people are endowed with a right, they tend to overvalue it and react passionately when it is interfered with.

Unfortunately, Americans increasingly coddle and even reward the hypersensitive, perversely encouraging ever more hypersensitivity. In one notorious incident, a Washington, D.C., city official was forced to resign for using the word ‘‘niggardly’’ at a meeting because the word sounded like a racial epithet, even though it is actually a word of Scandinavian origin meaning ‘‘miserly.’’27 It should hardly be surprising, then, that people are suing for and winning damages when they are offended by colleagues at work, when they are excluded by private clubs or turned down as roommates, or when they are fired from church-run schools after reneging on promises to obey church doctrine. Nor should it be surprising that legislatures are increasingly succumbing to the temptation to expand the laws to protect from discrimination every group with a grievance, including the vertically challenged (short people, protected in San Francisco and Michigan), the body-pierced (among those protected in various jurisdictions, including Washington, D.C., that ban discrimination on the basis of personal appearance), recovering drug addicts (protected by the federal Americans with Disabilities Act and local equivalents), and the Hell’s Angels (protected, along with other motorcycle gang members, in Minnesota).

Preserving the liberalism that defines the United States, and the civil liberties that go with it, requires Americans to show a certain level of virtue, including a phlegmatic tolerance of those who intentionally or unintentionally offend and sometimes—when civil liberties are implicated—even of those who blatantly discriminate. A society that undercuts civil liberties in pursuit of the ‘‘equality’’ offered by a statutory right to be free from all slights, protected by draconian antidiscrimination laws, will ultimately end up empty-handed with neither equality nor civil liberties to show for its efforts. The violation of civil liberties required to achieve this kind of equality will diminish constitutional restraints on the government, while the additional power garnered by the government, introduced for noble purposes, will end up in the hands of people who use it to promote their own interests.28 In these days of the Oprahization of public discourse, when even presidential candidates swear that they feel the public’s pain, asking Americans to display a measure of fortitude in the face of offense and discrimination is asking for a lot. But in the end, it is a small price to pay for preserving civil liberties.

Notes

Introduction

  1. Susan Ferriss, ‘‘Free Speech Advocates Find a Fight in Berkeley,’’ San Francisco Examiner , July 22, 1994, p. A6.
  2. Michelle Tauber, ‘‘Dancer’s Image: Charging Body-size Bias, Krissy Keefer Fights to Have Her 9-year-old Daughter Admitted to Ballet School,’’ People , March 5, 2001, p. 79.
  3. Al Knight, ‘‘Webb Deaf to Free Speech,’’ Denver Post , October 1, 2000.
  4. Ganzy v. Allen Christian School , 995 F. Supp. 340, 348 (E.D.N.Y. 1998).
  5. Carl S. Kaplan, ‘‘In Library Filtering Case, an Unusual Ally,’’ New York Times , October 2, 1998.
  6. Kirsten Lagatree, ‘‘Fighting Words: Efforts to Avoid Housing Discrimination Have Changed the Way Realty Ads Are Written,’’ Los Angeles Times , February 12, 1995, p. 1.
  7. The federal government has specified that using these phrases, along with other words and phrases that do not facially express a discriminatory preference, is permissible under federal law, but not all state and local agencies follow federal guidelines when enforcing their fair housing laws. See generally U.S. Department of Housing and Urban Development, Advertisements Under 804(c) of the Fair Housing Act, January 9, 1995, available at www.fairhousing.com/hud_resources/hudguid2.htm.
  8. Stanley v. Lawson , 993 F. Supp. 1084 (N.D. Ohio 1997); Tom Puleo, ‘‘Former Dairy Mart Manager in Ohio May Sue for Return of Her Job,’’ Hartford Courant , January 13, 1992, p. A1.
  9. Interview with Benjamin Bull, attorney for Ms. Stanley, January 11, 2002.
  10. Senator Hubert H. Humphrey explained his support for the employment discrimination provisions of the federal 1964 Civil Rights Act this way: ‘‘The Negro American is the principal victim of a vastly complex system of self-perpetuating practices, traditions, and processes that has denied him true parity in the national job market. He has consistently and effectively been kept from participating fully in the job opportunities developed by the American free enterprise system.’’ Congressional Digest , March 1964, p. 76.
  11. C. C. Burlingham, et al., Letter to the Editor, ‘‘Faults Found in Ives Bill,’’ New York Times , February 13, 1945. Not all civil libertarians shared this caution. Also in 1945, the ACLU called for federal and state fair employment practices laws, and restrictions on housing discrimination. Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990), p. 168.
  12. Hannah Arendt, ‘‘Reflection on Little Rock,’’ Dissent , No. 1, 1959, p. 45.
  13. Elizabeth Jacoway and David R. Colburn, eds., Southern Businessmen and Desegregation (Baton Rouge: Louisiana State University Press, 1981); Robert Weems, Desegregating the Dollar: African-American Consumerism in the Twentieth Century (New York: New York University Press, 1998).
  14. At common law, innkeepers and others who made a profession of public employment were prohibited from refusing, without good reason, to serve a customer. See Lane v. Cotton , 88 Eng. Rep. 1458, 1464–1465 (K.B. 1701) (Holt, C. J.).
  15. At the time, hate speech laws were known as ‘‘group libel’’ laws. See Samuel Walker, Hate Speech: The History of an American Controversy (Lincoln, Neb.: University of Nebraska Press, 1994), pp. 85, 100.
  16. See David E. Bernstein, Only One Place of Redress (Durham, N.C.: Duke University Press, 2001), p. 107.
  17. Veto message of President George H. W. Bush, October 22, 1990.
  18. See, for example, Terry Eastland, Ending Affirmative Action (New York: Basic Books, 1996), pp. 189–90.
  19. Along with other, more minor incidents, for a period of several months during my childhood my family and I were subjected to anti-Semitic vandalism, taunts, and threats, a situation eventually resolved through police intervention. I mention this as a preemptive response to what I suspect is the inevitable ad hominem argument that my views result from insensitivity to the victims of discrimination, having never personally experienced it myself.

Chapter 1

  1. George Kateb, ‘‘The Value of Association,’’ in Amy Gutmann, ed., Freedom of Association (Princeton, N.J.: Princeton University Press, 1998), p. 59.
  2. Swanner v. Anchorage Equal Rights Comm’n , 874 P.2d 274 (Alaska 1994).
  3. See, for example, Roberts v. United States Jaycees , 468 U.S. 609 (1984); Robinson v. Jacksonville Shipyards, Inc. , 760 F. Supp. 1486, 1542 (M.D. Fla. 1991).
  4. See, for example, Akhil Reed Amar, ‘‘The Case of The Missing Amendments: R.A.V. v. City of St. Paul ,’’ Harvard Law Review 106 (1992): 124. Amar’s argument is persuasively rebutted in Alex Kozinski and Eugene Volokh, ‘‘A Penumbra Too Far,’’ Harvard Law Review 106 (1993): 1639.
  5. See, for example, Mari J. Matsuda, ‘‘Public Response to Racist Speech: Considering the Victim’s Story,’’ in Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Colorado: Westview Press, 1993); Charles R. Lawrence III, ‘‘If He Hollers Let Him Go: Regulating Racist Speech on Campus,’’ in Mari J. Matsuda et al., Words That Wound , pp. 53, 61; Catharine MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993), p. 71; Richard Delgado, ‘‘Campus Antiracism Rules: Constitutional Narratives in Collision,’’ Northwestern University Law Review 85 (1991): 343, 346; Mary Ellen Gale, ‘‘Reimagining the First Amendment: Racist Speech and Equal Liberty,’’ St. John’s Law Review 65 (1991): 119, 162; Brian Owsley, ‘‘Racist Speech and ‘Reasonable People’: A Proposal for a Tort Remedy,’’ Columbia Human Rights Law Review 24 (1993): 323, 324. This argument has also infiltrated the civil libertarian community, and commands a great deal of support within the ACLU. See Dennis Cauchon, ‘‘Civil Dispute within the ACLU,’’ USA Today , March 31, 1993.
  6. See Eugene Volokh, ‘‘Freedom of Speech and the Constitutional Tension Method,’’ University Chicago Roundtable 3 (1996): 223.
  7. R.A.V. v. City of St. Paul , 505 U.S. 377 (1992).
  8. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston , 515 U.S. 557 (1995).
  9. Boy Scouts of America. v. Dale , 120 S. Ct. 2446 (2000).
  10. Catharine MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993), p. 107.
  11. Mari J. Matsuda, ‘‘Public Response to Racist Speech: Considering the Victim’s Story,’’ Michigan Law Review 87 (1989): 2320, 2359.
  12. See, for example, Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder, Colo.: Westview Press, 1996), p. 115; Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993), pp. 186–95; Frank Michelman, ‘‘Universities, Racist Speech and Democracy in America: An Essay for the ACLU,’’ Harvard Civil Rights–Civil Liberties Law Review 27 (1992): 339, 351–52.
  13. Thomas W. Hazlett, ‘‘Looking for Results,’’ Interview with Ronald Coase, Reason , January 1997, pp. 40, 45; see also R. H. Coase, ‘‘The Economics of the First Amendment: The Market for Goods and the Market for Ideas,’’ American Economic Review 64 (1974): 384; Aaron Director, ‘‘The Parity of the Economic Market Place,’’ Journal of Law and Economics 7 (1964): 1; Richard A. Epstein, ‘‘Property, Speech, and the Politics of Distrust,’’ University of Chicago Law Review 59 (1992): 41.
  14. Fiss, see note 12; Morton Horwitz, ‘‘The Constitution of Change: Legal Fundamentality without Fundamentalism,’’ Harvard Law Review 107 (1993): 30; Frederick Schauer, ‘‘Uncoupling Free Speech,’’ Columbia Law Review 92 (1992): 1321; Sunstein, see note 12, p. 16; Cass Sunstein, ‘‘Free Speech Now,’’ University of Chicago Law Review 59 (1992): 255; see also Edwin Baker, ‘‘Of Course, More Than Words,’’ University of Chicago Law Review 61 (1994): 1181, 1187; Paul H. Brietzke, ‘‘How and Why the Marketplace of Ideas Fails,’’ Valparaiso University Law Review 31 (1997): 951.
  15. Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992).
  16. See David F. McGowan and Ragesh K. Tangri, ‘‘A Libertarian Critique of University Restrictions of Offensive Speech,’’ California Law Review 79 (1991): 825; Michael S. Greve, ‘‘Remote Control Tuning for Speech,’’ Washington Times , November 9, 1996, p. D3.
  17. American Booksellers Association v. Hudnut , 771 F.2d 323, 330 (7th Cir. 1985), aff’d mem. , 475 U.S. 1001 (1986).
  18. Frederick Schauer, Free Speech: A Philosophical Inquiry (Cambridge, U.K.: Cambridge University Press, 1982), p. 86.
  19. American Booksellers Association , 771 F.2d p. 330.
  20. John O. McGinnis, ‘‘Reviving Tocqueville’s America: The Supreme Court’s New Jurisprudence of Social Discovery,’’ California Law Review 90 (2002): 485.
  21. Ibid.
  22. Stanley Fish, There’s No Such Thing as Free Speech—And It’s a Good Thing, Too (New York: Oxford University Press, 1994), p. 125.
  23. McGinnis, see note 20.
  24. Andrew Koppleman, Antidiscrimination Law and Social Equality (New Haven, Conn.: Yale University Press, 1996), p. 230.
  25. See George Will, ‘‘Reason One of the Few Things Not Included in Spending Bill,’’ Seattle Post-Intelligencer , October 26, 1998, p. A9.
  26. See Cal. Educ. Code § 943671(a) (West Supp. 1999); Cal. Educ. Code § 48950 (West 1993); Nat Hentoff, ‘‘Magna Carta for Students,’’ Washington Post , January 30, 1993, p. A21.
  27. See Henry J. Hyde and George M. Fishman, ‘‘The Collegiate Speech Protection Act of 1991: A Response to the New Intolerance in the Academy,’’ Wayne Law Review 37 (1991): 1469. The bill stipulated that no university ‘‘shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication protected from governmental restriction by the first article of amendment to the Constitution of the United States.’’
  28. Transcript of discussion in Gary LaMarche, ed., Speech and Equality: Do We Really Have to Choose? (New York: New York University, 1996) p. 75; see also Michael S. Greve, ‘‘The Libertarian Case for Speech Codes,’’ Reason , July 1995, available at www.reason.com/9507/GREVEcol.jul.shtml.
  29. Boy Scouts of America v. Dale , 120 S. Ct. 2446 (2000); see generally Henry Louis Gates Jr., ‘‘Let Them Talk,’’ New Republic , September 20 and 27, 1993, pp. 37, 42–43; Mari Matsuda, ‘‘Public Response to Racist Speech: Considering the Victim’s Story,’’ Michigan Law Review 87 (1989): 2320, 2371.
  30. Fish, see note 22.
  31. Jack Bass, Unlikely Heroes (Tuscaloosa, Ala.: University of Alabama Press, 1986); David E. Bernstein, ‘‘Lochner, Parity, and the Chinese Laundry Cases,’’ William and Mary Law Review 41 (1999): 211.
  32. James Weinstein, Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (Boulder, Colo.: Westview Press, 1999), p. 5.
  33. Fish, see note 22, p. 102.
  34. Ibid., p. 109.
  35. Weinstein, see note 32.
  36. William Graham Sumner, ‘‘Democracy and Plutocracy,’’ in Robert Bannister, ed., On Liberty, Society, and Politics: The Essential Essays of William Graham Sumner (Indianapolis, Ind.: Liberty Press, 1985), p. 134.

Chapter 2

  1. Mackenzie v. Miller Brewing Co. , 623 N.W.2d 739 (Wis. 2001).
  2. Bernard J. Wolfson, ‘‘Office Clinton Jokes Could Lead to Lawsuits,’’ Orange County Register , October 5, 1998, p. A1.
  3. Kathleen M. Moore, ‘‘Workers’ Talk Dwells on Case, But Discreetly Sensitive Issue at Water Cooler,’’ Bergen Record , February 2, 1998, p. A6.
  4. Yochi Dreazen, ‘‘Talking Dirty: In Our Brazen Era of Monica and Viagra, What Subjects Should Be Off-limits at Work?’’ Florida Times Union , August 16, 1998, p. F1.
  5. The classic text is Catharine MacKinnon, Sexual Harassment of Working Women (New Haven, Conn.: Yale University Press, 1979).
  6. Harris v. Forklift Systems, Inc. , 510 US 17, 21 (1993), quoting Meritor Savings Bank , FSB v. Vinson , 477 U.S. 57, 65, 67 (1986).
  7. See generally Jonathan Rauch, ‘‘Offices and Gentlemen,’’ New Republic , June 23, 1997, p. 22; Eugene Volokh, ‘‘What Speech Does Hostile Work Environment Harassment Law Restrict?’’ Georgia Law Review 85 (1997): 627, 637; Jeffrey Rosen, ‘‘In Defense of Gender-Blindness,’’ New Republic , June 29, 1998, p. 25; Kingsley R. Browne, ‘‘Title VII as Censorship: Hostile-Environment Harassment and the First Amendment,’’ Ohio State Law Journal 52 (1991): 481, 539.
  8. Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 (1998).
  9. See Davis v. Monroe County Bd. of Educ. , 526 U.S. 629, 665, 682 (1999) (Kennedy, J., dissenting).
  10. See, for example, Cardin v. Via Tropical Fruits, Inc. , 1993 U.S. Dist. LEXIS 16302, *24–25 and n. 4 (S.D Fla.).
  11. See, for example, Baskerville v. Culligan Int’l Co. , 50 F.3d 428, 430 (7th Cir. 1995) (reversing jury award of $25,000); Black v. Zaring Homes, Inc., 104 F.3d 822, 823 (6th Cir. 1997) (reversing jury award of $250,000).
  12. U.S. Department of Labor, ‘‘Sexual Harassment: Know Your Rights’’ (1994), discussed in Eugene Volokh, ‘‘What Speech Does Hostile Work Environment Harassment Law Restrict?’’ Georgia Law Review 85 (1997): 627, 633.
  13. Olivant v. Department of Environmental Protection , 1999 WL 430770 (N.J. Admin. April 12).
  14. Brown Transportation Corp. v. Commonwealth , 578 A.2d 555, 562 (Pa. Commw. 1990).
  15. Pakizegi v. First National Bank , 831 F. Supp. 901, 908–909 (D. Mass. 1993).
  16. Eugene Volokh, ‘‘Thinking Ahead about Freedom of Speech and Hostile Work Environment Harassment,’’ Berkeley Journal Employment and Labor Law 17 (1996): 305.
  17. Ibid., pp. 307–08 (discussing EEOC v. Hyster , No. 88-930-DA [D. Or. filed August 15, 1988]).
  18. For details, see Reid v. O’Leary , 1996 U.S. Dist. LEXIS 10627 (D.D.C. July 15, 1996).
  19. Ibid.
  20. Interview with Gary Simpson, attorney for the plaintiff, July 19, 2001.
  21. Steve Miletich, ‘‘Gay Man Withdraws His Complaint against Company,’’ Seattle Post-Intelligencer , July 7, 1994, p. B2; Steve Miletich, ‘‘Gay Man Claims Hostility at Work,’’ Seattle Post-Intelligencer , June 21, 1994, p. B4; John Carlson, ‘‘When Political Correctness Becomes Political Coercion,’’ Seattle Times , June 21, 1994, p. B4.
  22. Robinson v. Jacksonville Shipyards, Inc. , 760 F. Supp. 1486 (M.D. Fla. 1991).
  23. Ibid., pp. 1492, 1502.
  24. Ibid., p. 1535.
  25. NLRB v. Local Union No. 3 , 828 F.2d 936 (2d Cir. 1987); Hospital & Serv. Employees Union , Local 399 v. NLRB , 743 F.2d 1417, 1428 n.8 (9th Cir. 1984).
  26. NLRB v. Gissel Packing Co. , 395 U.S. 575, 617, 618 (1969); NLRB v. Douglas Div. , 570 F.2d 742, 747 (8th Cir. 1978); Sheet Metal Workers Int’l Ass’n v. Burlington N.R.R. Co. , 736 F.2d 1250, 1253 (8th Cir. 1984); Dow Chem. Co. v. NLRB , 660 F.2d 637, 644–45 (5th Cir. Unit A November 1981).
  27. See, for example, Pacific Gas & Elec. Co. v. Public Util. Comm’n , 475 U.S. 1, 20 (1986); Consolidated Edison Co. v. Public Serv. Comm’n , 447 U.S. 530, 536 (1980).
  28. Madsen v. Women’s Health Center, Inc. , 512 U.S. 753 (1994) (discussing the right to protest outside an abortion clinic).
  29. Cohen v. California , 403 U.S. 15, 21 (1971).
  30. See, for example, Jenson v. Eveleth Taconite Company , 824 F. Supp. 847 (D. Minn. 1993); Berman v. Washington Times Corp. , 1994 WL 750274, *5 n.4 (D.D.C.); Baty v. Willamette Industries, Inc. , 985 F. Supp. 987 (D. Kan. 1997).
  31. Bowman v. Heller , 1993 WL 761159, *1 (Mass. Super. Ct.) (unpublished disposition).
  32. Hustler Magazine v. Falwell , 485 U.S. 46 (1988).
  33. Aguilar v. Avis Rent A Car System, Inc. , 87 Cal. Rptr. 2d 132 (1999).
  34. Avis Rent A Car System v. Aguilar , 120 S. Ct. 2029 (2000) (Thomas, J., dissenting from denial of cert.).
  35. Davis v. Montrose County Bd. of Educ. , 119 S. Ct. 1661, 1682, 1690 (1999) (Kennedy, J., dissenting).
  36. See, for example, DeAngelis v. El Paso Municipal Police Officers Ass’n , 51 F.3d 591, 596–97 (5th Cir. 1995).
  37. Johnson v. County of Los Angeles Fire Dept. , 865 F. Supp. 1430, 1438, 1442 (C.D. Cal. 1994); Mauro v. Arpaio , 147 F.3d 1137, 1141 (9th Cir. 1998).
  38. ‘‘Anchorage Tells Fire Halls to Eliminate Risqué Magazines,’’ Juneau Empire Online , February 18, 2002, available at www.juneauempire.com/stories/021802/sta_stbriefs.shtml.
  39. See Eugene Volokh, ‘‘Squeamish Librarians,’’ www.reason.com/hod/ ev060401.html.

Chapter 3

  1. This chapter’s discussion of Keefer’s lawsuit relies on Joan Acocella, ‘‘A Ballerina Body,’’ The New Yorker , March 5, 2001, p. 38; Paul Ben-Itzak, ‘‘Keefer’s Crazy Crusade: A Wounded Ballet Mom Strikes Out Blindly,’’ available at www.danceinsider.com/f1213_1.html; Janice Berman, ‘‘The Rejection Seat: Fredrika Near Keefer’s Rejection from the San Francisco Ballet Company,’’ Dance Magazine , March 1, 2001, p. 14; Edward Epstein, ‘‘Girl Fights for a Chance to Dance: Complaint Filed over School’s Body-type Rules,’’ San Francisco Chronicle , December 7, 2000; Welton Jones, ‘‘It’s Unnatural Selection, but That’s Ballet,’’ San Diego Union-Tribune , January 28, 2001, p. F4; Joan Ryan, ‘‘I Asked My Mother What Will I Be ...,’’ San Diego Union-Tribune , December 24, 2000, p. G4; Michelle Tauber, ‘‘Dancer’s Image: Charging Body-size Bias, Krissy Keefer Fights to Have Her 9-year-old Daughter Admitted to Ballet School,’’ People , March 5, 2001, p. 79; Joanna Weiss, ‘‘Fight for Future of Dance Ideal Is Taking Shape: S. F. Ballet Battle Furthers Clash between Politics, Art,’’ Boston Globe , January 16, 2001, p. E1; Good Morning America , Transcript, December 21, 2000.
  2. Beth Gardiner, ‘‘Stretching Title IX: N.Y. Group Seeks to Use Anti-bias Law to Get More Women’s Artwork in Museums,’’ Associated Press , www.s-t.com/daily/03-98/03-08-98/e04li202.htm; Beth Piskora, ‘‘Artists Paint Bleak Picture of Museums,’’ New York Post , January 27, 1998, p. 23; Tunku Varadarajan, ‘‘Art World in Brush with US Women over Bias,’’ Times of London , January 28, 1998.
  3. Beth Gardiner, ‘‘Women Artists Seeking the Benefits of Title IX; Group Argues Museums Should Put Them On Par with Female Athletes,’’ Chicago Tribune , March 26, 1998, p. C8.
  4. Wis. Stat. §§ 111.32 (13).
  5. Montana Human Rights Commission, ‘‘Model Equal Employment Opportunity Policy: A Guide for Employers’’ (no date).
  6. Nat Hentoff, ‘‘Sexual Harassment by Francisco Goya,’’ Washington Post , December 27, 1991, p. A21.
  7. See Eugene Volokh, ‘‘Thinking Ahead about Freedom of Speech and Hostile Work Environment Harassment,’’ Berkeley Journal Employment and Labor Law 17 (1996): 305.
  8. Ibid.
  9. Jonathan Rauch, ‘‘Offices and Gentlemen,’’ New Republic , June 23, 1997, p. 22.
  10. Henderson v. City of Murfreesboro , Tennessee, 960 F. Supp. 1292 (M.D. Tenn. 1997).
  11. See Dave Kopel, ‘‘Naked Justice,’’ National Review Online , February 25, 2002.
  12. Francis X. Gilpin, ‘‘Unsettling Settlement,’’ Tampa Bay Weekly Planet , July 26, 2001, available at http://www.weeklyplanet.com/2001-07-26/notebook.html; Kevin Graham, ‘‘Art or Porn: USF Opts Not to Fight,’’ St. Petersburg Times , July 4, 2001, p. A1; Joe Humphrey, ‘‘Students Outraged by Removal of TA Who Showed Sex Photo to Student,’’ USF Oracle , November 5, 1999, available at www.studentadvantage.lycos.com/lycos/article/0,4683,c4-i7-t41-a17728,00.html; www.oracle.usf.edu/archive/199911/19991108/.
  13. Stanley v. Georgia , 394 U.S. 557, 566 (1969).
  14. Robinson v. Jacksonville Shipyards, Inc. , 760 F. Supp. 1486, 1542 (M.D. Fla. 1991).
  15. 2000 WL 272263, pp. *1, *3, *5-*7 (6th Cir. March 14).
  16. David Patch, ‘‘Panel Backs Deaf Patron’s Claim against Club,’’ Toledo Blade , March 6, 2001.
  17. Federal law states that ‘‘it shall not be an unlawful employment practice for an employer to hire and employ employees ..., on the basis of his religion, sex, or national origin . . . where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business.’’ 42 U.S.C. § 2000e-2(e)(1).
  18. Ruth Shalit, ‘‘Melrose Case,’’ New Republic , January 26, 1998.
  19. EEOC v. Mike Fink Corp. , M.D. Tenn., No. 3-96-0790, consent decree approved 9/12/00; Stacey Hartmann, ‘‘Male-Server Policy Loses Out in Court,’’ The Tennessean , March 16, 2000.
  20. Joe D. Jones, ‘‘Have ‘Equal’ Employment Laws Gone Too Far?’’ Mississippi Business Journal , April 3, 2000, available at www.msbusiness.com/archives/22v14n/ Editorial/9904.php.
  21. Sambo’s Restaurants, Inc. v. City of Ann Arbor , 663 F.2d 686 (6th Cir. 1981); but see Urban League v. Sambo’s of Rhode Island (Rhode Island Commission for Human Rights, 1981), holding that prohibiting the use of the name ‘‘Sambo’s’’ did not violate the First Amendment.
  22. ‘‘Hooters Agrees to Hire Men in Support Roles, but It Will Still Hire Scantily Clad Women,’’ Baltimore Sun , October 1, 1997, p. 3C.
  23. ‘‘Hooters Moms Sue over Policy,’’ Baton Rouge Sunday Advocate , December 17, 2000, p. I7.
  24. Ralph Reiland, ‘‘Selecting Targets,’’ The Free Market , January 1998.
  25. See 29 Code of Federal Regulations § 1604.2(2) (1997) (allowing sex to be considered in the hiring of actors).
  26. Wilson v. Southwest Airlines Co. , 517 F. Supp. 292 (D.C. Tex. 1981).
  27. Reiland, see note 24.
  28. Ibid.

Chapter 4

  1. See Heather MacDonald, ‘‘Free Housing Yes, Free Speech No,’’ Wall Street Journal , August 8, 1994, p. A12.
  2. Debra Caldon, ‘‘On Equity and Affordable Housing,’’ Flatland News , February 1993, p. 2.
  3. Fair Housing Issues: Hearings before the Subcommittees on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 1st Sess. (1994).
  4. White v. Lee , 227 F.3d 1214 (9th Cir. 2000).
  5. Ibid.
  6. See, for example, Sigfredo A. Cabrera, ‘‘HUD Continues Its Assault on Free Speech,’’ Wall Street Journal , June 7, 1995, p. A15; Lou Chapman, ‘‘Free Speech an Issue in Suit against Ridgmar Group,’’ Fort Worth Star-Telegram , November 19, 1994, p. 27; Editorial, ‘‘Intimidating Political Protest,’’ Washington Post , August 22, 1994, p. A16; Edmund Mahony, ‘‘Judge Dismisses Suit against Neighborhood,’’ Hartford Courant , February 12, 1995, p. B1; Joyce Price, ‘‘Federal Government Sues Five for Fighting Group Home: Act of Getting a Restraining Order Called Discriminatory,’’ Washington Times , May 31, 1995, p. A3; Joyce Price, ‘‘HUD Sues Texans in Home-Sale Battle—Citizens Fought to Stop Deal in 1991,’’ Washington Times , November 19, 1994, p. A4; Brian J. Taylor, ‘‘No Retreat in Feds’ War on Free Speech,’’ Sacramento Bee , November 19, 1994, p. F1.
  7. Mahony, see note 6, p. B1.
  8. See, for example, Editorial, ‘‘Free the Berkeley Three: HUD vs. Free Speech,’’ Virginian-Pilot , August 18, 1994, p. A20; Editorial, ‘‘No More Speech Police,’’ Boston Herald , September 3, 1994, p. 12; Editorial, ‘‘Intimidating Political Protest,’’ see note 6; MacDonald, see note 1; Justin Raimondo, ‘‘The Hidden Agenda of Radical Egalitarians,’’ San Francisco Examiner , August 17, 1994, p. A17.
  9. Memorandum from Roberta Achtenberg, Assistant Secretary for Fair Housing & Equal Opportunity, U.S. Department of Housing & Urban Development (September 2, 1994) (on file with author).
  10. See Roberta Achtenberg, ‘‘Sometimes on a Tightrope at HUD,’’ Washington Post , August 22, 1994, p. A17.
  11. See Editorial, ‘‘Government by Intimidation,’’ Washington Post , February 26, 1996, p. A18.
  12. Achtenberg, see note 10, p. A17.
  13. Deval L. Patrick, Letter to the Editor, Washington Post , February 19, 1996, p. A24.
  14. United States v. Wagner , Civ. No. 3:94-CV-2540-H, 1995 WL 841924, p. *5 (N.D. Tex. December 11, 1995).
  15. White v. Julian , 227 F.3d 1214 (9th Cir. 2000).
  16. Salisbury House, Inc. v. McDermott , No. CIV.A.96-CV-6486, 1998 WL 195693, p. *10 (E.D. Pa. Mar. 24, 1998); Michigan Prot. & Advocacy Serv., Inc. v. Babin , 799 F. Supp. 695 (E.D. Mich. 1994).
  17. Quoted in Jeremy Rabkin, ‘‘Developers Nail Free Speech,’’ American Spectator , December 2000, p. 46.
  18. Robyn E. Blumner, ‘‘Political Correctness Threatens to Swallow Free Speech,’’ St. Petersburg Times , September 19, 1999; Eugene Volokh, ‘‘Is Criticizing Affirmative Action Illegal in Chicago?’’ Free Speech & Election Law News , Summer 1999, p. 10.
  19. Volokh, see note 18.
  20. For Deming’s account, see David Deming, ‘‘Free-Speech Hypocrisy at the University of Oklahoma,’’ Front Page Magazine , January 25, 2001.
  21. Lucia Perri, Letter to the Editor, The Oklahoma Gazette , available at Oklahoma Women Organizing for Change Web site, www.members.aol.com/okamwoc/deminged.html.
  22. ‘‘Bats in the Belltower: Sexual Harassment by Analogy,’’ Clarion , Vol. 4, March/ April 2000, available at the Pope Center for Higher Education Web site, www.popecenter.org/clarion/2000/mar-apr/bats.html.
  23. Ed Godfrey, ‘‘Professor’s Letter Draws Ire,’’ February 26, 2000, available at Oklahoma Women Organizing for Change Web site, http://members.aol.com/okamwoc/ddeming.html.
  24. Ibid.
  25. ‘‘Bats in the Belltower,’’ see note 22.
  26. Deming, see note 20.
  27. See Brown v. Board of Trustees of Boston University , 891 F2d 337, 350–51 (1st Cir. 1989); J. Edward Pawlick, Freedom Will Conquer Racism and Sexism (Wellesley, Mass.: Mustard Seeds Incorporated, 1998), pp. 221–23.
  28. Ibid., p. 227.
  29. Wirtz v. Basic, Inc. , 786, 787 (D. Nev. 1966).
  30. Sweeney v. Keene State College , 569 F.2d 169, 179 (1st Cir. 1978).
  31. Walter Olson, The Excuse Factory (New York: Free Press, 1997), p. 256.
  32. See, for example, Federal Rules of Evidence 403.
  33. The cartoon can be viewed at www.detnews.com/AAEC/summer99/kirk/kirk.html.
  34. ‘‘St. Paul Human Rights Director Files Complaint over Pioneer Press Cartoon,’’ Pioneer Press , June 10, 1999.
  35. V. Cullum Rogers, ‘‘Kirk Anderson Cartoon Stirs Tempest in St. Paul,’’ www.detnews.com/AAEC/summer99/kirk/kirk.html.

Chapter 5

  1. For details, see Doe v. University of Michigan , 721 F. Supp. 852, 867 (E.D. Mich. 1989).
  2. Ibid.
  3. UWM Post, Inc. v. Board of Regents of the University of Wisconsin System , 774 F. Supp. 1163, 1181 (E.D. Wis. 1991) (striking down the university’s rule against directing discriminatory epithets at individuals as unduly vague and overbroad); Doe v. University of Michigan , 721 F. Supp. 852, 867 (E.D. Mich. 1989) (striking down speech limitation as overbroad).
  4. Dambrot v. Central Michigan University , 55 F.3d 1177 (6th Cir. 1995).
  5. R.A.V. v. City of St. Paul , 505 U.S. 377 (1992).
  6. Ibid., pp. 383–84.
  7. Some legal scholars argue that the Supreme Court’s decision the following year in Wisconsin v. Mitchell , upholding a law providing sentence enhancements for hate crimes, essentially overruled R.A.V. by allowing extra punishment on the basis of the ideological motivation of the perpetrator. David E. Rovella, ‘‘Critics See Threat to Free Speech as States Stiffen Penalties on Bias-motivated Crime,’’ National Law Journal , August 29, 1994, p. A1. The cases are clearly distinguishable, however, because R.A.V. was charged under a law banning speech, while the defendant in Mitchell was charged with criminal conduct. That the Court itself recognized this distinction is evidenced by the fact that all of the justices who joined the majority opinion in R.A.V. also joined the unanimous opinion in Mitchell.
  8. See Dambrot v. Central Michigan University , 55 F.3d 1177 (6th Cir. 1995).
  9. For an account of the incident, see Eugene Volokh, ‘‘Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex,’’ University of Chicago Legal Forum (1996): 377, 419, and n. 148.
  10. The University of Maryland College Park’s sexual harassment rules are described in www.inform.umd.edu/EdRes/Topic/WomensStudies/GenderIssues/SexualHarassment/UMDManual/handout1.
  11. Conciliation Agreement between the U.S. Department of Labor, Office of Federal Contract Compliance Programs, and The Ohio State University, September 14, 1992.
  12. See Nat Hentoff, ‘‘Sombrero Scrap,’’ Washington Post , January 1, 1994, p. A23.
  13. The brochure’s contents may be found at www.nas.org/affiliates/westvirginia/wvu98codes.htm.
  14. See www.nas.org/affiliates/westvirginia/wvu98.html.
  15. Ibid.
  16. Richard Bernstein, Dictatorship of Virtue: Multiculturalism and the Battle for America’s Future (New York: Alfred A. Knopf, 1994), p. 209; Alan Charles Kors and Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses (New York: The Free Press, 1998), pp. 180–81.
  17. Doug Grow, ‘‘College Republicans Can Thank ‘U’ Official for Their Sudden Fame,’’ Minneapolis Star Tribune , September 19, 1993, p. 3B.
  18. Maura Lerner, ‘‘ ‘U’ Backs off Ban on Literature Making Fun of Clinton,’’ Minneapolis Star Tribune , September 22, 1993, p. 1B.
  19. Maura Lerner, ‘‘Did You Hear the One About . . . The Republican Student and the ‘U’ President?’’ Minneapolis Star Tribune , April 27, 1994, p. 1A.
  20. ‘‘Free Speech or Sexual Harassment? Student Suspended for Material in Dorm Newsletter,’’ Student Press Law Center Report , Fall 1997, p. 28; www.aclu-sc.org/news/openforum/of712.pdf.
  21. ‘‘Kvederis Lawsuit against CMC Settled on Confidential Terms,’’ www.cmcstudent.com/kvederis.html.
  22. Mary Becker, ‘‘The Legitimacy of Judicial Review in Speech Cases,’’ in Laura Lederer and Richard Delgado, eds., The Price We Pay: The Case against Racist Speech, Hate Propaganda, and Pornography (New York: Hill and Wang, 1995), pp. 208, 211.
  23. See, for example, Hardy v. Jefferson Community College , 260 F.3d 671 (6th Cir. 2001).
  24. See, for example, Dambrot v. Central Michigan University , 55 F.3d 1177 (6th Cir. 1995) (‘‘An instructor’s choice of teaching methods does not rise to the level of protected expression’’). The Supreme Court has explicitly held that in public schools below college level, regulation of curriculum-related speech does not raise First Amendment concerns if it is ‘‘reasonably related to legitimate pedagogical concerns.’’ Hazelwood School Dist. v. Kuhlmeier , 484 U.S. 260, 268–69 (1988).
  25. See, for example, Martin v. Parrish , 805 F.2d 583, 586 (5th Cir. 1986).
  26. See, for example, Cohen v. San Bernardino Valley College , 92 F.3d 968 (9th Cir. 1996) (holding that a college’s sexual harassment policy was too vague to be used against a professor who used explicit language and provocative examples in class); Dambrot v. Central Michigan University , 55 F.3d 1177 (6th Cir. 1995) (finding that a policy that vests authority in university administration to determine ex post what speech constitutes harassment is unconstitutional).
  27. Silva v. University of New Hampshire , 888 F. Supp. 293 (D.N.H. 1994).
  28. Ibid.
  29. Center for Individual Rights, Docket Report, First Quarter, 1995. For a case in which a court held that a public university had the authority to sanction a professor for using obscene language after warning him that it was against university policy, see Bonnell v. Lorenzo , 241 F.3d 800 (6th Cir. 2001).
  30. Kors and Silverglate, pp. 120–21.
  31. Linda Chavez, ‘‘Boston College Fires Feminist Prof for Excluding Men,’’ Austin Review , September 15, 1999.
  32. Kors and Silverglate, see note 16, p. 121.
  33. Vicki Schultz, ‘‘Reconceptualizing Sexual Harassment,’’ Yale Law Journal 107 (1998): 1683, 1793.
  34. Michael Krauss, ‘‘When You Face the PC Inquisition,’’ Washington Times , January 27, 1995, p. A27.
  35. The text of the remarks can be found at www.print.indymedia.org/front.php3?article_id’923.
  36. ‘‘Police Get Hate-crimes Complaint against Thobani,’’ National Post , October 10, 2001, p. A4.
  37. Albert J. Nock, ‘‘The Criminal State,’’ American Mercury , March 1939.

Chapter 6

  1. West Virginia v. Barnette , 319 U.S. 624 (1943).
  2. Title VI Enforcement Agreement between the United States Department of Housing and Urban Development and Bonnie L. Jouhari/Pilar D. Horton and Roy E. Frankhouser, No. 03-98-0797-8 (August 28, 1998), available at www.splcenter.org/cgi-bin/oframe.pl?dirname’/egalaction&pagename’la1.html&anchorname’centerhud.
  3. The text of the settlement may be found at www.splcenter.org/cgi-bin/frame.pl?dirname’/enterinfo&pagename’lci-15.html.
  4. Michael Kelly, ‘‘Cuomo’s Thought Police,’’ Washington Post , May 17, 2000.
  5. Ibid.
  6. Dennis Roddy, ‘‘Deal Making Nazi a Martyr,’’ Pittsburgh Post-Gazette , May 20, 2000.
  7. See Editorial, ‘‘Intimidating Political Protest,’’ Washington Post , August 22, 1994, p. A16.
  8. Torres v. Union Market , Mass. Comm’n against Disc., no. 94-SEM-0066 (December 7, 1998), reported in The Quincy Patriot Ledger , December 11, 1998, p. 6.
  9. ‘‘Other Ideas,’’ Las Vegas Review Journal , April 1, 2000.
  10. Jeff Jacoby, ‘‘Banned in Boston,’’ Boston Globe , April 6, 2000.
  11. Eugene Volokh, ‘‘Freedom of Speech, Cyberspace, Harassment Law, and the Clinton Administration,’’ Law & Contemporary Problems 63 (2000): 299.
  12. 24 C.F.R. 109.30a.
  13. See, for example, Ragin v. New York Times Co. , 923 F.2d 995, 1000 (2d Cir. 1991).
  14. Ragin v. Harry Macklowe Real Estate Co. , 801 F. Supp. 1213 (S.D.N.Y. 1992), aff’d in part and rev’d in part, 6 F.3d 898 (2d Cir. 1993).
  15. Such damages were awarded in Spann v. Colonial Village, Inc. , 899 F.2d 24 (D.C. Cir. 1990); Fenwick-Schafer v. Winchester Homes , No. 90066002/CL110092 (Cir. Ct. Baltimore).
  16. Ragin , 923 F. 2d, p. 100.
  17. L. Pendlebury, ‘‘Civil Rights Fight on Ads Leaves Bitter Aftertaste,’’ Legal Times , July 20, 1987, p. 13.
  18. Ragin v. Steiner, Clateman and Assocs. , 714 F. Supp. 709 (S.D.N.Y. 1989).
  19. Michael E. Rosman, ‘‘Ambiguity and the First Amendment: Some Thoughts on All-White Advertising,’’ Tennessee Law Review 61 (1993): 289.
  20. Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc. , 943 F.2d 644 1353 (6th Cir. 1991) (Keith, J., dissenting).
  21. 24 C.F.R. 108.
  22. www.hud.gov/fhe/109.html.
  23. Spann v. Colonial Village, Inc. , 662 F. Supp., 541, 545 (D.D.C. 1987).
  24. Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc. , 943 F.2d 644 1353 (6th Cir. 1991).
  25. EEOC v. Consolidated Service Systems , 989 F.2d 233, 235 (7th Cir. 1993).
  26. EEOC v. Consolidated Service Systems , 777 F. Supp. 599, 609 (N.D. Ill. 1991), aff’d , 989 F.2d 233 (7th Cir. 1993).
  27. James Bovard, ‘‘The Latest EEOC Quota Madness,’’ Wall Street Journal , April 27, 1995, p. A14. See also James Bovard, Lost Rights (New York: St. Martin’s Press, 1994), pp. 172–73.
  28. 989 F.2d, pp. 237–38.
  29. Michael A. Fletcher, ‘‘Childhood Lessons Still Inspire New Leader of EEOC,’’ Washington Post , November 30, 1998, p. A23.
  30. Equal Employment Opportunity Commission v. O & G Spring and Wire Forms Specialty Company , 705 F. Supp. 400, 402 (N.D. Ill. 1988), aff’d , 38 F.3d 872 (7th Cir. 1994).
  31. Bovard, see note 26.
  32. Equal Employment Opportunity Commission v. O & G Spring and Wire Forms Specialty Company , 38 F.3d 872, 890 (7th Cir. 1994).
  33. 38 F.3d 890, and ‘‘Appellate Summaries, Civil Rights—Racial Discrimination,’’ Chicago Daily Law Bulletin 1 (December 1, 1994).
  34. 38 F.3d 893.
  35. Ibid., p. 885.
  36. See generally Seth Kupferberg, ‘‘Civil Rights Law and Breaking Down Patterns of Segregation: The Case of Nepotism,’’ Hofstra Labor and Employment Law Journal 16 (1999): 355.
  37. Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992), pp. 67–68.
  38. Abraham McLaughlin, ‘‘When Others Harass, Now Managers Lose Pay,’’ Christian Science Monitor , September 10, 1999.
  39. Ibid.
  40. Wooley v. Maynard , 430 U.S. 705, 714 (1977).
  41. West Virginia State Bd. of Educ. v. Barnette , 319 U.S. 624 (1943).

Chapter 7

  1. Isbiter v. Boys’ Club of Santa Cruz, Inc. , 707 P.2d 212, 214 (Cal. 1985).
  2. ‘‘The State,’’ Los Angeles Times , November 6, 1985.
  3. Ayn Rand, The Virtue of Selfishness: A New Concept of Egoism (New York: New American Library, 1964), p. 134.
  4. Robert Bork, ‘‘Civil Rights—A Challenge,’’ New Republic , August 31, 1963, p. 21.
  5. Moose Lodge No. 107 v. Orvis , 407 U.S. 163, 179–80 (1972).
  6. See, for example, Katzenbach v. Jack Sabin’s Private Club , 265 F. Supp. 90, 91–92 (E.D. La. 1967).
  7. United States v. Lansdowne Swim Club , 713 F. Supp. 785, 790 (E.D. Pa. 1989), aff’d , 894 F.2d 83 (3d. Cir. 1990); Durham v. Red Lake Fishing & Hunting Club, Inc. , 666 F. Supp. 954 (W.D. Tex. 1987); United States v. Slidell Youth Football Ass’n , 387 F. Supp. 474 (E.D. La. 1974); Auerbach v. African Am. Teachers Ass’n , 356 F. Supp. 1046, 1047 (E.D.N.Y. 1973).
  8. Moose Lodge No. 107 , 407 U.S. 163.
  9. Minn. Stat. § 604.12, subd 2(a) (1998) (‘‘A place of public accommodation may not restrict access, admission, or usage to a person solely because the person operates a motorcycle or is wearing clothing that displays the name of an organization or association.’’)
  10. N.Y. Exec. Law § 292(9) (McKinney 1993); Kiwanis Club of Great Neck, Inc. v. Board of Trustees of Kiwanis Int’l , 363 N.E.2d 1378 (N.Y. 1977).
  11. Jackson v. Concord , 253 A.2d 793, 799 (N.J. 1969).
  12. National Org. for Women v. Little League Baseball, Inc. , 127 N.J. Super. 522, 318 A.2d 33 (App. Div.), aff’d , 338 A.2d 198 (N.J. 1974).
  13. Brounstein v. American Cat Fanciers Assoc. , 839 F. Supp. 1100 (D.N.J. 1993).
  14. See, for example, Quinnipac Council, Boy Scouts of America, Inc. v. Commission on Human Rights and Opportunities , 528 A.2d 352, 354 (Conn. 1987); United States Power Squadrons v. State Human Rights Appeal Bd. , 452 N.E.2d 1199, 1204 (N.Y. 1983); United States Jaycees v. McClure , 305 N.W.2d 764, 772 (Minn. 1981).
  15. Frank v. Ivy Club , 576 A.2d 241 (N.J. 1990).
  16. Ibid., p. 257.
  17. See George W. C. McCarter, ‘‘Look Before You Leap: New Jersey’s Experience with (Covert) Strict Gender Scrutiny,’’ Seton Hall Constitutional Law Journal 6 (1996): 991–92.
  18. See, for example, Seabourn v. Coronado Area Council , 891 P.2d 385 (Kan.1995); Schwenk v. Boy Scouts of America , 551 P.2d 465, 469 (Ore. 1976).
  19. See, for example, Benevolent and Protective Order of Elks v. Reynolds , 863 F. Supp. 529 (W.D. Mich. 1994); Maine Human Rights Comm’n v. Le Club Calumet , 609 A.2d 285, 287 (Me. 1992).
  20. PGA Tour, Inc. v. Martin , 121 S. Ct. 1879 (2001).
  21. Roberts v. United States Jaycees , 468 U.S. 609 (1984).
  22. Ibid.
  23. Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte , 481 U.S. 537, 546 (1987).
  24. Boy Scouts of America v. Dale , 120 S. Ct. 2446 (2000).
  25. Louisiana Debating and Literary Association, 42 F.3d 1483, 1493 (1995).
  26. Ibid., p. 1498 (citing Lyng v. International Union, United Auto. Aerospace & Agric. Implement Workers of Am. , 485 U.S. 360, 367 [1988]).
  27. Pacific-Union Club v. Superior Court , 283 Cal. Rptr. 287 (Ct. App. 1991).
  28. After the New Jersey Supreme Court ruled in Frank’s favor, the eating clubs challenged that ruling on constitutional grounds in federal court.
  29. Meg Nugent, ‘‘ ‘Eating Clubs’ Settle Discrimination Suit,’’ Newark Star-Ledger , June 4, 1992.
  30. ‘‘Last Yale Secret Society Votes to Allow Women,’’ Orlando Sentinel Tribune , December 20, 1991, p. A16.
  31. ‘‘Nation in Brief,’’ St. Petersburg Times , October 31, 1993, p. 7A.
  32. 20 U.S.C. § 1681(a)(6) (1994).
  33. 20 U.S.C. § 1144 (1994); 42 U.S.C. § 1975a(b)(1994).
  34. See Warfield v. Peninsula Golf & Country Club , 896 P.2d 776, 790 (Cal. 1995).

Chapter 8

  1. Roberts v. United States Jaycees , 468 U.S. 609, 622 (1984).
  2. See, for example, NAACP v. Alabama ex rel. Patterson , 357 U.S. 449, 453 (1958); NAACP v. Button , 371 U.S. 415, 419 (1963).
  3. United States Jaycees v. McClure , 709 F.2d 1560 (8th Cir. 1983), rev’d sub nom. Roberts v. United States Jaycees , 468 U.S. 609 (1984).
  4. Roberts v. United States Jaycees , 468 U.S. 609 (1984).
  5. Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte , 481 U.S. 537, 546 (1987).
  6. See, for example, Randall v. Orange County Council , Boy Scouts of America , 28 Cal. Rptr. 2d 53 (Ct. App. 1994); Anderson v. Boy Scouts of America, Inc. , 589 N.E.2d 892 (Ill. Ct. App. 1992); Quinnipiac Council, Boy Scouts of America, Inc. v. Comm’n on Human Rights & Opportunities , 528 A.2d 352, 356 n.5 (Conn. 1987). But see Welsh v. Boy Scouts of America , 993 F.2d 1267, (7th Cir. 1993) (Cummings, J., dissenting) (stating that if the issue arose, he would probably conclude that the Scouts has a First Amendment right to exclude atheists).
  7. Anderson v. Boy Scouts of America, Inc. , 589 N.E.2d 892 (Ill. Ct. App. 1992).
  8. 515 U.S. 557 (1995).
  9. See Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston , No. 9-21518, 1993 WL 818674, p. *2 n.5 (Mass. Super. Ct. Dec. 15, 1993), aff’d , 636 N.E.2d 1293 (Mass. 1994), rev’d sub nom., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston , 515 U.S. 557 (1995).
  10. Ibid., p. *14.
  11. See Irish-American Gay, Lesbian & Bisexual Group of Boston v. City of Boston , 636 N.E.2d 1293, 1300 (Mass. 1994), rev’d sub nom., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston , 515 U.S. 557 (1995).
  12. The background facts are found in Boy Scouts of America v. Dale , 120 S. Ct. 2446 (2000).
  13. John O. McGinnis, ‘‘Reviving Tocqueville’s America: The Supreme Court’s New Jurisprudence of Social Discovery,’’ California Law Review 90 (2002): 485.
  14. Ibid.
  15. City of Cleveland v. Nation of Islam , 922 F. Supp. 56 (N.D. Ohio 1995).
  16. As the Massachusetts Supreme Court has held in a similar case. Donaldson v. Farrakhan , 436 Mass. 94 (2002).
  17. Richard Carelli, ‘‘Court Denies Cleveland Bid to Avoid Legal Fees,’’ Cleveland Plain Dealer , January 21, 1998, p. 2B.
  18. Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont , 700 F. Supp. 281 (D. Md. 1988).
  19. Southgate v. United African Movement , No. MPA 95-0851, PA 95-0031, 1997 WL 1051933 (N.Y.C. Com. Hum. Rts. June 30, 1997).
  20. Ibid.
  21. Ibid.
  22. Linda F. Wightman, ‘‘The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions,’’ New York University Law Review 72, (1997): 1, 30, tbl. 6.
  23. Ibid., p. 22, tbl. 5.
  24. Regents of the Univ. of Cal. v. Bakke , 438 U.S. 265 (1978).
  25. Ibid., pp. 314, 317–18 (Powell, J., concurring).
  26. Hopwood v. Texas , 78 F.3d 932 (5th Cir. 1996).
  27. John Roberts, ‘‘It’s Academic: Universities Discriminate Despite Court Orders,’’ Washington Times , January 21, 2003, p. A17.
  28. Boy Scouts of America v. Dale , 530 U.S. 640 (2000).
  29. 27 U.S. 160 (1976).
  30. Petitioner’s Brief, Runyan v. McCrary , 427 U.S. 160 (1976) (No. 75-62).
  31. Justice O’Connor, a member of the five-vote majority in Dale , has suggested that they cannot. Roberts v. United States Jaycees , 468 U.S. 609 (1984) (O’Connor, J., concurring).
  32. Runyon v. McCrary , 427 U.S. 160, 175–76 (1976). See David E. Bernstein, ‘‘The Right of Expressive Association and Private Universities’ Racial Preferences and Speech Codes,’’ William and Mary Bill of Rights Law Journal 9 (2001): 619.
  33. Some minority students believe that many schools discriminate against them in admissions. As of early 2001 the official Web site of the Law School Admissions Council stated: ‘‘We often hear . . . in the Office of Minority Affairs at Law School Admission Council: ‘Is it okay to say I’m a minority student when I apply to law schools? I’ve heard it’s better not to tell.’ www.lsac.org/LSAC.asp?url/lsac/minorities-in-legal-education-selected-articles.asp. Needless to say, the Web site encouraged students to reveal their minority status.
  34. See John E. Morris, ‘‘Boalt Hall’s Affirmative Action Dilemma,’’ American Lawyer , November 1997, p. 4. For example, in 1996–97 only 103 African Americans and 224 Hispanics had a college GPA of 3.25 or above and LSAT scores at or above the 83.5 percentile, and only 16 African Americans and 45 Hispanics achieved the 92.3 (164 LSAT) percentile with a 3.50 or higher GPA. The latter credentials are lower than the averages at the elite ‘‘Top 15’’ law schools, which matriculate several thousand students each year.
  35. Andrew R. Varcoe, ‘‘The Boy Scouts and the First Amendment: Constitutional Limits on the Reach of Anti-Discrimination Law,’’ Law and Sex. 9 (1999–2000): 163, 276.

Chapter 9

  1. See, for example, E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C. , 213 F.3d 795 (4th Cir. 2000); Starkman v. Evans , 198 F.3d 173 (5th Cir.1999); E.E.O.C. v. Catholic Univ. of Am. , 83 F.3d 455, 461-63 (D.C. Cir.1996).
  2. UPI, ‘‘Religious Schools Await Supreme Court Ruling,’’ Bergen Record , March 3, 1986, p. 10.
  3. Ibid. The quotation here is from the news story, not from Mrs. Hoskinson.
  4. Dayton Christian Schools v. Ohio Civil Rights Comm’n , 578 F. Supp. 1004, 1018–19, 1012 (D. Ohio 1984).
  5. William Choyke, ‘‘Supreme Court Will Rule on Church-School Dispute,’’ Dallas Morning News , March 30, 1986, p. 4A.
  6. 578 F. Supp. 1012–113.
  7. 578 F. Supp. 1014.
  8. Ibid.
  9. Dayton Christian Schools v. Ohio Civil Rights Comm’n , 766 F. 2d. 932 (6th Cir. 1985).
  10. UPI, ‘‘Religious Schools Await Supreme Court Ruling,’’ Bergen Record , March 23, 1986, p. O12.
  11. Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc. 477 U.S. 619 (1986).
  12. ‘‘Church Worker Seeks Ruling on Job Bias,’’ Houston Chronicle , March 27, 1986, p. 15.
  13. McLeod v. Providence Christian School , 408 N.W.2d 146, 152 (Mich. 1987).
  14. Ganzy v. Allen Christian School , 995 F. Supp. 340, 348 (E.D.N.Y. 1998); see also Dolter v. Wahlert High School , 483 F. Supp. 266 (N.D. Iowa 1980).
  15. Sacred Congregation for Catholic Education, ‘‘Lay Catholics in Schools: Witnesses to Faith,’’ paragraph 32 (October, 15, 1982).
  16. Dolter , 483 F. Supp. 270.
  17. Gay Rights Coalition of Georgetown University Law Center v. Georgetown University , 536 A.2d 1 (D.C. 1987).
  18. District of Columbia Appropriations Act, 1990, Pub. L. No. 101–168, 103 Stat. 1267, 1284 (1989).
  19. Rebecca Sinderbrand, ‘‘Taking Pride in Promoting Tolerance,’’ The Georgetown Hoya , October 20, 1998, available at www.thehoya.com/features/102098/features3.htm.
  20. See Bob Jones Univ. v. United States , 461 U.S. 574 (1983).
  21. Ibid., p. 599.
  22. See Mayer G. Freed and Daniel Polsby, ‘‘Race, Religion and Public Policy: Bob Jones University v. United States ,’’ Supreme Court Review 1(1984).
  23. Brian Blomquist and Kenneth Lovett, ‘‘Jones Reaches ‘18th Century’ on New Dating Policy: McCain,’’ New York Post , March 5, 2000, p. 18.
  24. 42 USC § 2000e-1(a) (1970).
  25. 42 USC § 2000e-1(a) (1994).
  26. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos , 483 U.S. 327 (1987).
  27. See, for example, Ohio Rev. Code Ann. § 4112.01(B) (providing no religious exemption).
  28. 374 U.S. 398, 403–10 (1963).
  29. As noted, Dayton Christian Schools claimed a rare victory in a federal appellate court under the Sherbert test.
  30. Employment Division v. Smith , 494 U.S. 872 (1990).
  31. 42 USC §§ 2000bb-2000bb-4 (1994).
  32. Flores v. City of Boerne , 521 U.S. 507 (1997).
  33. See, for example, Adams v. Comm’r of Internal Revenue , 170 F.3d 173 (3d Cir. 1999); In re Young , 82 F.3d 1407, 1416-17 (8th Cir. 1996).
  34. See, for example, Conn. Gen. Stat. Ann. §§ 52-571b (West Supp. 1999); Fla. Stat. Ann. § 761 (West Supp. 1999); R.I. Gen. Laws §§ 42-80.1.3 (1997).
  35. As of February 1999, among states interpreting their constitutions, approximately 15 apply a strong compelling interest test, 6 give less protection to religion, and the rest have not clearly spoken to the issue. Steve France, ‘‘Not under My Roof You Don’t,’’ American Bar Association Journal 85 (April 1999): 26, 28.
  36. See David E. Bernstein, ‘‘Antidiscrimination Laws and the First Amendment,’’ Missouri Law Review 66 (2001): 83; David E. Bernstein, ‘‘The Right of Expressive Association and Private Universities’ Racial Preferences and Speech Codes,’’ William and Mary Bill of Rights Law Journal 9 (2001): 619.

Chapter 10

  1. Attorney General v. Desilets , 636 N.E.2d 233, 234 (Mass. 1994).
  2. Michael Matza, ‘‘Rent and a Religious Landlord,’’ Seattle Times , April 21, 1994, p. A3.
  3. Ibid.
  4. The Boston Herald , February 10, 1994, p. 20.
  5. Professor Marie Failinger responds to this type of argument by noting that to ‘‘discount such landlords’ interests as merely economic is to send the wrong message about the kind of local communities we may hope to have. That is, it may signal that we do not want landlords who are interested in their tenants’ needs or their tenants’ misbehavior, that we want landlords who are indifferent to who their tenants are as persons, whose choices will be based solely on economics. To discount [a landlord] as merely a commercial enterprise is to move farther along to the day when the engaged landlord disappears, and our only landlords will be large corporations with absentee managers who govern through rules rather than relationships, who ignore disruptive tenants and habitability issues until it hurts their bottom line. The blessing of anonymity is also its curse: the landlord who may murmur disapproval at an indigent woman’s poor choice in relationships is also the landlord who may fix the heat faster because she knows the woman’s children.’’ Marie A. Failinger, ‘‘Remembering Mrs. Murphy: A Remedies Approach to the Conflict between Gay/ Lesbian Renters and Religious Landlords,’’ Capital University Law Review 29 (2001): 383.
  6. ‘‘So Saith the Landlord,’’ Boston Globe , February 13, 1994, p. 74.
  7. Attorney General v. Desilets , 636 N.E.2d 233, 234 (Mass. 1994).
  8. Desilets , 636 N.E.2d 240.
  9. John Auerbach, ‘‘Some Hail AG’s Inaction on Tenant Case,’’ Boston Globe , January 31, 1995.
  10. George F. Will, ‘‘Mass. Anti-Bias Law Clashes with Religious Rights,’’ Chicago Sun-Times , March 13, 1994, p. 48.
  11. Matza, see note 2.
  12. Swanner v. Anchorage Equal Rights Comm’n , 874 P.2d 274 (Alaska 1994).
  13. Ibid., p. 283–84.
  14. Swanner v. Anchorage Equal Rights Comm’n , 513 U.S. 979, 982 (1994) (Thomas, J., dissenting from denial of cert.)
  15. See Maureen E. Markey, ‘‘The Landlord/Tenant Free Exercise Conflict in a Post-RFRA World,’’ Rutgers Law Journal 29 (1998): 487 (21 states ban marital status discrimination in housing; none explicitly bans discrimination against unmarried heterosexual couples).
  16. County of Dane v. Norman , 497 N.W.2d 714 (Wis. 1993) (making this argument in a related context).
  17. Quoted in George Grant, ‘‘Trial and Error: The American Civil Liberties Union and Its Impact on Your Family’’ (undated), available at www.freebooks.commentary.net/freebooks/docs/a_pdfs/ggte.pdf.
  18. 460 N.W.2d 2 (Minn. 1990).
  19. Employment Division v. Smith, 494 U.S. 872 (1990).
  20. Ibid., p. 717.
  21. 220 F.3d 1134, 1137 (9th Cir. 2000).
  22. Smith v. Fair Employment and Housing Comm’n , 913 P.2d 909 (Cal. 1996).
  23. Jasniowski v. Rushing , 678 N.E.2d 743 (Ill. App.), judgment vacated, 685 N.E.2d 622 (Ill. 1997).
  24. George C. Leef, ‘‘Housing Discrimination Laws and the Continuing Erosion of Property Rights,’’ Freedom Daily , May 1999, available at www.fff.org/freedom/0599e.asp.
  25. McCready v. Hoffius , 586 N.W.2d 723 (Mich. 1998).
  26. Cready v. Hoffius , 1999 WL 226862 (Mich.).
  27. American Civil Liberties Union Statement on H.R. 1691 Religious Liberty Protection Act of 1999 before the Subcommittee on the Constitution of the House Committee on the Judiciary Presented by Christopher E. Anders, Legislative Counsel May 12, 1999.
  28. Ibid.; see also Christopher E. Anders and Rose E. Saxe, ‘‘Effect of a Statutory Religious Freedom Strict Scrutiny Standard on the Enforcement of State and Local Civil Rights Law,’’ Cardozo Law Review 21 (1999): 663.
  29. Eric Fingerhut, ‘‘Jewish Groups Back Away from Religious Protection Act,’’ Washington Jewish Week , October 7, 1999, p. 5.
  30. Ibid.

Chapter 11

  1. State ex rel. Sprague v. City of Madison , 555 N.W.2d 409 (Wis. Ct. App. 1996).
  2. Sprague v. City of Madison , 207 Wis.2d 284 (1997); Hacklander-Ready v. Wisconsin ex rel. Sprague, 520 U.S. 1212 (1997).
  3. Sprague v. Hacklander-Ready , Equal Opportunities Commission Case No. 1462 (February 9, 1995), available at www.ci.madison.wi.us/eoc/Cases/01462.htm.
  4. Department of Fair Employment and Housing v. DeSantis , FEHC Dec. No. 02-12, 2002 WL 1313078 (Cal. F.E.H.C. 2002).
  5. See, for example, 24 C.F.R. §§ 109.20(b)(5) (withdrawn). This regulation has been withdrawn, directive no. FR-4029-F-01, effective May 1, 1996, but it probably still reflects HUD’s interpretation of the Fair Housing Act. This section was withdrawn because of concern that its restrictions on specific wording of advertising swept too broadly. See Memo from HUD Assistant Secretary Roberta Achtenberg, Guidance Regarding Advertisements under 804(c) of the Fair Housing Act, available at www.fscn.com/members/text/hudadmem.htm. But experts believe that the general policy of prohibiting discriminatory advertising is still in place. See www.fairhousing.com/legal_research/regs/ fhr_109-20.htm; www.fscn.com/members/text/c2fhous.htm.
  6. Complaint, In re Fair Housing Council of Greater Washington v. Washington City Paper , www.fairhousing.org/Casenotes/docs/CityPaper/dcComplaint.rtf.
  7. Ellen Goodman, ‘‘Desire for Women-only Health Clubs Is No Show of Strength,’’ Fresno Bee , February 13, 1998, p. B7.
  8. Ibid.
  9. Doug Thomas, ‘‘Female-friendly Fitness Curves for Women Centers Are Designed to Make the Average Woman Comfortable with Getting Fit without Distractions,’’ Omaha World-Herald , December 18, 2000.
  10. Michael R. Zahn, ‘‘Bias Case against Fitness Club Dropped,’’ Milwaukee Journal , December 20, 1993, p. B1.
  11. Hanna Miller, ‘‘Exercising Their Fitness Options,’’ Arizona Daily Star , March 8, 2001, p. F8.
  12. Suzanne Schlosberg, ‘‘Women-Only Health Clubs Gain Popularity, Draw Controversy,’’ CNN , May 31, 2000, available at www.cnn.com/2000/HEALTH/diet.fitness/05/31/women.only.wmd/.
  13. Miriam A. Cherry, ‘‘Exercising the Right to Public Accommodations: The Debate over Single-Sex Health Clubs,’’ Maine Law Review 52 (2000): 97, 104–07.
  14. Laura-Lynne Powell, ‘‘Anaheim activist Roots Out Bias against Men,’’ Orange County Register , April 17, 1992, p. 1.
  15. Ibid.
  16. ‘‘Health Club to Admit Men,’’ Los Angeles Times , August 3, 1988, p. Metro 2.
  17. ‘‘St. Paul Man Files Sex Discrimination Suit against Women-Only Health Club,’’ Minneapolis Star Tribune , March 20, 1990, p. 7B; Powell, see note 14; Zahn, see note 10.
  18. ‘‘Women Only,’’ Providence Journal Bulletin , November 3, 1997, p. C1.
  19. J. M. Lawrence, ‘‘Law Lets Women Sweat Where the Boys Aren’t,’’ Boston Herald , February 7, 1998, p. 7.
  20. ‘‘The International Health, Racquet & Sportsclub Association, Single Sex Health Clubs,’’ available at www.ihrsa.org/publicpolicy/industryissues/womenonly.html.
  21. EEOC v. Sedita , 755 F. Supp. 808 (N.D. Ill. 1991).
  22. Ibid.
  23. Cherry, see note 13, p. 126.
  24. For citations on this point, see Eugene Volokh, ‘‘Freedom of Speech, Cyberspace, Harassment Law, and the Clinton Administration,’’ Law and Contemporary Problems 63 (2000): 299.
  25. Paul McNamara, ‘‘Keeping an Eye on E-mail,’’ Network World , October 5, 1998, p. 80.
  26. Dana Hawkins, ‘‘Lawsuits Spur Rise in Employee Monitoring,’’ U.S. News & World Report , August 13, 2001.
  27. Volokh, www.law.ucla.edu/faculty/volokh/harass/cyberspa.htm.
  28. Hawkins, see note 26.
  29. Volokh, www.law.ucla.edu/faculty/volokh/harass/cyberspa.htm.
  30. Ibid.
  31. Ibid.
  32. ‘‘Victory in Sex Bias Suit Would Only Do So Much,’’ New York Times , August 21, 1992. See Ezold v. Wolf, Block, Schorr and Solis-Cohen , 983 F.2d 509 (3d Cir. 1992).
  33. Ambrose Evans-Pritchard, The Secret Life of Bill Clinton (Washington: Regnery Publishing, 1997), p. 363.
  34. See Jeffrey Rosen, ‘‘I Pry,’’ New Republic , March 16, 1998.
  35. Quoted in Jeffrey Rosen, ‘‘Privacy in Public Places,’’ Cardozo Studies of Law and Literature 12 (2000): 167, 183.
  36. Ibid.
  37. Becky Rees, Grove City College v. T.H. Bell, Secretary, U.S. Dept. Of Education , available at Grove City College Web site, www.gcc.edu/pr/Rees.asp.
  38. Ibid.
  39. Grove City College v. Harris , 500 F. Supp. 253 (D.C. Pa. 1980).
  40. Grove City College v. Bell . 465 U.S. 444 (1984).
  41. 20 U.S.C. §§ 1687, 29 U.S.C. §§ 794, 42 U.S.C. §§ 2000d-4a, and 42 U.S.C. §§ 6101.
  42. John Leo, ‘‘Gender Police: ‘Pull Over,’’’ U.S. News & World Report , March 23, 1998, p. 11.
  43. John Ritter, ‘‘School Puts Its Principles First,’’ USA Today , December 9, 1996.
  44. See Jessica Gavora, Tilting the Playing Field: Schools, Sex, Sports and Title IX (San Francisco: Encounter Books, 2002).
  45. Lynn v. Regents of the University of California , 656 F.2d 1337 (9th Cir. 1981).

Chapter 12

  1. The ACLU’s position was that because Bob Jones was still free to express its opposition to interracial dating and marriage, the university’s constitutional rights were secure. Brief of the American Civil Liberties Union and the American Jewish Committee, Amici Curiae in support of Affirmance at 37-38, Bob Jones Univ. v. United States , 461 U.S. 574 (1983).
  2. William A. Donohue, The Politics of the American Civil Liberties Union (New Brunswick, N.J.: Transaction Books, 1985), p. 131.
  3. Pines v. W. R. Tomson , 206 Cal. Rptr. 866 (Cal. App. 1984).
  4. McCready v. Hoffius , 586 N.W.2d 723 (Mich. 1998).
  5. Quoted in Daniel J. Popeo, Not Our America (Washington: Washington Legal Foundation, 1989), p. 71.
  6. Nadine Strossen, ‘‘Regulating Racist Speech on Campus: A Modest Proposal,’’ Duke Law Journal (1990): 484, n. 343.
  7. Curran v. Mount Diablo Council of the Boy Scouts of America , 17 Cal. 4th 670, 674, 952 P.2d 218 (1998).
  8. See, for example, Linda Hills, ‘‘Court Decision Tarnishes Justice and Boy Scouts,’’ San Diego Union-Tribune , March 27, 1998. (The executive director of the San Diego ACLU writes that the Boy Scouts of America should be regulated because it receives ‘‘significant support from government.’’)
  9. Julie Makinen Bowles, ‘‘D.C. Panel to Examine Boy Scouts’ Ban on Gays,’’ Washington Post , January 20, 1998, p. B1.
  10. Jonathan D. Karl, ‘‘Stifled Speech on Campus,’’ Christian Science Monitor , August 23, 1990, p. 19.
  11. Charles Oliver, ‘‘The First Shall Be Last?’’ Reason , October 1990, pp. 20, 25.
  12. Strossen, see note 6.
  13. See Iota Xi Chapter of Sigma Chi v. George Mason Univ ., 773 F. Supp. 792 (E.D. Va. 1991).
  14. Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990), p. 373.
  15. Evan Osnos and James Janega, ‘‘ACLU Sides with Supremacist on Right to Obtain Law License,’’ Chicago Tribune , August 8, 1999.
  16. See Guy Gugliotta, ‘‘ACLU Alleges Free Speech Violations in HUD Probes,’’ Washington Post , August 17, 1994, p. A20.
  17. Rita Delfiner, ‘‘St. Pat’s Parade Heads to Court,’’ New York Post , January 25, 1992, p. 7.
  18. ‘‘ACLU v. ACLU,’’ Legal Times , November 7, 1987, p. 3.
  19. The ACLU’s brief before the Supreme Court supported neither party. The brief acknowledged that private parades are inherently expressive and are entitled to full First Amendment protection, but concluded that the case should be sent back to the trial court for a determination regarding whether the parade in question was truly private. That issue had already been raised in the courts below, rejected, and was not appealed, but apparently the ACLU simply could not bring itself to oppose enforcement of the antidiscrimination law in question.
  20. Nat Hentoff, ‘‘Government’s Place,’’ Sacramento Bee , September 24, 1994, p. B6.
  21. Alan Cooper, ‘‘Organization Fighting AIDS Homes Wins Round,’’ Richmond Times-Dispatch , October 13, 1994, p. B5.
  22. Nat Hentoff, ‘‘The Onliest Robyn Blumner,’’ Village Voice , November 4, 1997, p. 20.
  23. John Leo, ‘‘Watch What You Say,’’ U.S. News & World Report , March 20, 2000.
  24. Upon returning from a trip to the Stalinist Soviet Union in 1928, he criticized the ‘‘bourgeois mind’’ concerned with ‘‘individual liberties’’ instead of the economic freedom purportedly enjoyed by Soviet peasants, ‘‘a freedom vastly more real to the average worker than shadowy intellectual liberties.’’ Roger N. Baldwin, Liberty under the Soviets (New York: Vanguard Press, 1928), p. 24. In 1934, when millions of Soviet citizens were dying in government-engineered famines, Baldwin defended the Soviet dictatorship on the grounds that ‘‘the Soviet Union has already created liberties far greater than exist elsewhere in the world.’’ Quoted in Cletus E. Daniel, The ACLU and the Wagner Act (Ithaca, NY: Cornell ILR Press, 1980).
  25. Daniel, see note 24.
  26. Peggy Lamson, Roger Baldwin: Founder of the American Civil Liberties Union (Boston: Houghton Mifflin Co., 1976), p. 217.
  27. See Robert C. Cottrell, Roger Nash Baldwin and the American Civil Liberties Union (New York: Columbia Univeristy Press, 2001), pp. 216–17.
  28. Tamar Lewin, ‘‘A.C.L.U. Boasts Wide Portfolio of Cases, but Conservatives See Partisanship,’’ New York Times , October 2, 1988, § 1, p. 24.
  29. See Sanford Levinson, ‘‘Investigatory Bodies and the Due Processes of Law,’’ in Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Moral Efficacy ofTruth Commissions: South Africa and Beyond (Princeton University Press, forthcoming); Loren Miller, ‘‘A Color-Blind Commonwealth,’’ in Alan Reitman, ed., The Price of Liberty (New York: W. W. Norton and Co., 1968), pp. 187, 200.
  30. Walker, see note 14, pp. 275–76.
  31. Donohue, see note 2, p. 71.
  32. Ibid.
  33. Jessica Gavora, ‘‘The Quota Czars,’’ Policy Review , May 15, 1997, p. 22.
  34. Oliver, see note 11, p. 24.
  35. John T. Leeds, ‘‘The A.C.L.U.: Impeccable Judgments or Tainted Policies?’’ New York Times Magazine , September 10, 1989, p. 72.
  36. Interview with Alan Dershowitz, February 26, 2002. Former ACLU of Florida president Robyn Blumner makes the same point. Robyn Blumner, ‘‘Glasser Will Leave a Lasting Imprint on the ACLU,’’ Jewish World Review , September 6, 2000.
  37. Mark S. Campisano, ‘‘Card Games: The ACLU’s Wrong Course,’’ The New Republic , October 31, 1988, p. 10.
  38. Oliver, see note 11, p. 23.
  39. See Dennis Cauchon, ‘‘Civil Dispute within the ACLU,’’ USA Today , March 31, 1993.
  40. Mary Ellen Gale and Nadine Strossen, ‘‘The Real ACLU,’’ Yale Journal of Law and Feminism 2 (1989): 161, 172.
  41. Blumner, see note 36.
  42. Walker, see note 14, p. 5.

Conclusion

  1. See, for example, the influential article by Mari J. Matsuda, ‘‘Public Response to Racist Speech: Considering the Victim’s Story,’’ Michigan Law Review 87 (1989): 230.
  2. All of these restrictions are noted in John Leo, ‘‘A Tangled Web of Incorrect Thoughts,’’ ex Femina , June 2001, available at www.iwf.org/pubs/exfemina/June2001h.shtml.
  3. Many of these incidents are documented in Alan Charles Kors and Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses (New York: The Free Press, 1998).
  4. R. v. Keegstra , 3 S.C.R. 687 (1990).
  5. R. v. Butler , 1 S.C.R. 452 (1992).
  6. Mirko Petricevic, ‘‘Preaching . . . or Spewing Hate? A Thin Line Separates the Right of Canadians to Free Expression and the Crime of Promoting Hatred,’’ The Record (Kitchener-Waterloo, Ontario), February 1, 2003, p. J8.
  7. Ian Hunter, ‘‘Worshiping the God Equality,’’ Globe and Mail , July 5, 2001, p. A15.
  8. Susan Martinuk, ‘‘Religious Freedom Goes Public, Sort Of,’’ National Post , May 21, 2001, p. 14.
  9. Brillinger v. Brockie , No. 179/00 (Ont. Super. Ct. June 17, 2002).
  10. Royal Hamel, ‘‘Can Christians Let the Gospels Be Muzzled?’’ Guelph Mercury , October 4, 2002, available at 2002 WL 26223201.
  11. Zacharias Margulis, ‘‘Canada’s Thought Police,’’ Wired , March 1995.
  12. ‘‘Why the ACLU Opposes Censorship of ‘Pornography,’’ available at www.eff.org/Censorship/aclu_opposes_porno_censorship.article.
  13. Denise O’Leary, ‘‘A Velvet Oppression,’’ Christianity Today , April 2, 2001.
  14. British Columbia Human Rights Act, Ch. 22, Pt. 1, § 2(1).
  15. Both cases are described in Richard Ackland, ‘‘Defending the Right to Be Obnoxious,’’ Sydney Morning Herald , August 4, 2000, available at www.smh.com.au/news/0008/04/text/features2.html.
  16. Quoted in Tim Blair, ‘‘May I Speak Freely Here?’’ The Australian , December 11, 2001.
  17. Letter to the Editor, ‘‘Phillip Adams and the Case for a Bill of Rights,’’ Sidney Morning Herald , December 8, 2001.
  18. JDC Enterprises Pty Ltd., Tribunal Reference No. 28/98, April 2, 1998.
  19. Note, ‘‘Racial Steering in the Romantic Marketplace,’’ Harvard Law Review 107 (1994): 877.
  20. John Leo, ‘‘The Feds Strike Back,’’ U.S. News & World Report , May 31, 1999, p. 16.
  21. N. v. E. , Complaints Division W31/99 (N.Z. Human Rights Comm’n October 26, 1999), available at www.hrc.co.nz/org/legal/teritojuly00.htm.
  22. Walter Olson, The Excuse Factory: How Employment Law Is Paralyzing the American Workplace (New York: The Free Press, 1997).
  23. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, §§ 2(7), 86 Stat. 103 (codified as amended at 42 U.S.C §§ 2000e(j) (1994)); Americans with Disabilities Act, 42 U.S.C. §§ 12112(b)(5)(A) (1994); 34 C.F.R. §§ 104.12(b)(2) (1999); 42 U.S.C. §§ 12111(10)(B) (1994) (definition of ‘‘undue harship’’).
  24. Michael W. McConnell, ‘‘Free Exercise Revisionism and the Smith Decision,’’ University of Chicago Law Review 57 (1990): 1109.
  25. Albemarle Paper Co. v. Moody , 422 U.S. 405, 421 (1975).
  26. See 42 U.S.C. §§ 2000e(b) (1994); 42 U.S.C. §§ 1981a(b)(3) (1994); 42 U.S.C. §§ 2000e-5 (1994); 42 U.S.C. §§ 2000e-1(a) (1994).
  27. Yolanda Woodlee, ‘‘Top D.C. Aide Resigns over Racial Rumor,’’ Washington Post , January 27, 1999, p. B1.
  28. This is a paraphrase of Milton and Rose Friedman, Free to Choose (New York: Harcourt Brace Jovanovich, 1980), p. 159.

About the Author

David E. Bernstein is an associate professor at the George Mason University School of Law. He is a graduate of Yale Law School, where he was senior editor of the Yale Law Journal and a John M. Olin Fellow in Law, Economics, and Public Policy. After clerking for Judge David Nelson of the Sixth Circuit Court of Appeals and working as a litigator at Crowell & Moring, he served as a Mellon Foundation Research Fellow at Columbia University School of Law. Professor Bernstein is the author of more than 60 scholarly articles, book chapters, and think tank studies. He is author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press, 2001), coeditor of Phantom Risk: Scientific Inference and the Law (MIT Press, 1993), and coauthor of The New Wigmore: Volume on Expert and Demonstrative Evidence (forthcoming). He has been named one of the most-cited professors among those who have entered law teaching since 1992.

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