ISBN 1-930865-53-8

Printed in the United States of America.

Cato Institute
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Library of Congress Cataloging-in-Publication Data

Bernstein, David E.
You can’t say that! : the growing threat to civil liberties from antidiscrimination laws / David E. Bernstein.
p. cm.
Includes bibliographical references and index.
ISBN 1-930865-53-8 (cloth : alk. paper)
1. Civil rights--United States. 2. Discrimination--Law and legislation--United States. I. Cato Institute. II. Title.

KF4749.B47 2003
342.7308'53--dc22

2003055808

Cover design by Amanda Elliott.
Printed in the United States of America.

CATO INSTITUTE
1000 Massachusetts Ave., N.W.
Washington, D.C. 20001

To the memory of my grandparents and great-grandparents, the Bernsteins, Jozefsons, Kaplans, and Steins, who fled Europe for their lives and their freedom and found a haven of liberty for themselves and their progeny in America.

Acknowledgments

I have been intrigued by conflicts between antidiscrimination laws and freedom of expression since 1990, when writer Sheldon Richman told me that his brother had gotten into trouble for placing a real estate advertisement in the Philadelphia Jewish Exponent stating that a house he was selling was ‘‘walking distance to the synagogue.’’ This was pertinent information for an ad in a Jewish newspaper because Orthodox Jews are forbidden to drive to synagogue on the Sabbath and on many holidays. Nevertheless, local fair housing officials thought the ad was discriminatory. They claimed that, by noting proximity to a synagogue, the ad illegally expressed an implicit preference for Jewish buyers, thereby violating laws banning housing discrimination on the basis of religion. Appalled and intrigued, I did some further research, from which I discovered that the Fair Housing Act was consistently being enforced in ways that seemed to violate the First Amendment. I also began to notice news reports suggesting that other antidiscrimination laws were increasingly impinging on civil liberties. I resolved that someday I would write a book on the subject.

An opportunity to start work on such a book came in 1998, when a fellowship grant from the John M. Olin foundation relieved me of my teaching and committee responsibilities at the George Mason University School of Law for a year. My primary project for the year was to complete Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press, 2001), but I made substantial progress on this book as well.

One problem I confronted in starting this book was that I understood that outside of the academic press market, the market for serious nonfiction is limited, and that authors who take politically incorrect positions, as I knew I would, face a particularly difficult time finding publishers among leading trade presses. David Boaz and the Cato Institute came to the rescue. As further incentive to get going, I was invited to publish initial versions of bits and pieces of what ultimately became the book as symposium articles: ‘‘The Right of Expressive Association and Private Universities’ Racial Preferences and Speech Codes,’’ William and Mary Bill of Rights Journal 9 (2001); ‘‘Antidiscrimination Laws and the First Amendment,’’ Missouri Law Review 66 (2001); and ‘‘Sex Discrimination Laws Versus Civil Liberties,’’ University of Chicago Legal Forum 1999. Michael Abramowicz, Neal Devins, Richard Epstein, Eugene Volokh, and Todd Zywicki commented on one of more of these articles. An earlier version of Chapter 12 appeared in Liberty magazine.

As the book progressed, I received assistance from a variety of sources. The Law and Economics Center at the George Mason University School of Law provided generous summer research funding. Daniel Polsby, Associate Dean for Academic Affairs at George Mason Law, arranged a reduced teaching schedule in exchange for a promise to complete a book manuscript. Walter Olson gave me helpful early advice. Lillian Bernstein read part of the book manuscript and insisted that I eliminate legal jargon. Michael Abramowicz, Stanley Bernstein, Gene Healy, Robert Levy, and Sara Pikofsky each read and commented on at least one complete draft of the book. Conversations with Eugene Volokh, both in person and via e-mail, helped clarify several important constitutional issues for me. I bounced many of the ideas in this book off my law professor colleagues on the ConLawProf listserv.

Nate Oman and James Winn provided outstanding research assistance. Nate’s services were provided by the Institute for Humane Studies at George Mason University, which has been helpful to me in many ways since I was a senior in college. Olson’s Overlawyered.com and Volokh’s ‘‘Freedom of Speech vs. Workplace Harassment Law’’ (www.1.law.ucla.edy/~volokh/harass/) were extremely useful in providing leads on cases and other ammunition for this book. Readers who enjoy this book should be sure to visit both of those sites. John Showalter and Marni Soupcoff provided excellent editorial assistance. Micah Thorner went above and beyond the call of duty in providing amazingly prompt and efficient secretarial help while I was completing the final draft of the manuscript as a visiting professor at the Georgetown University Law Center in Spring of 2003. Finally, I would like to thank David Boaz for reading and commenting on several drafts of the book manuscript, and for otherwise shepherding this book through the publication process.

Introduction

Intolerant activists are determined to impose their moralistic views on all Americans, regardless of the consequences for civil liberties. These zealots are politically well organized and are a dominant force in one of the two major political parties. They have already achieved many legislative victories, especially at the local level, where they often wield disproportionate power. Courts have often acquiesced to their agenda, even when it conflicts directly with constitutional provisions protecting civil liberties. Until the power of these militants is checked, the First Amendment’s protection of freedom of speech and freedom of religion will be in constant danger.

To many civil libertarians, the preceding paragraph reads like a description of the Christian right. But it also describes left-wing egalitarian activists, many of whom are associated with the ‘‘civil rights’’ establishment. Their agenda of elevating antidiscrimination concerns above all others poses an acute threat to civil liberties. The First Amendment prohibits the government from interfering with freedom of expression, which includes free exercise of religion, freedom of speech, freedom of the press, and the right to petition the government for a redress of grievances. All of these civil libertarian restrictions on government power are at risk from antidiscrimination laws. For example:

In Berkeley, the federal Department of Housing and Urban Development threatened to sanction three neighborhood activists for organizing community opposition to a plan to turn a rundown hotel into a homeless center. HUD alleged that the activists had violated the Fair Housing Act by interfering with a project that would serve a group of people who would be disproportionately mentally ill or recovering substance abusers, protected groups under the Act. HUD spokesperson John Phillips, trying to parry free speech concerns raised by the media, instead stoked them. ‘‘To ask questions is one thing,’’ Phillips told reporters. ‘‘To write brochures and articles and go out and actively organize people to say, ‘We don’t want those people in those structures,’ is another.’’¹
In San Francisco, Krissy Keefer is using an antidiscrimination law to challenge the artistic autonomy of the San Francisco Ballet. She is suing the ballet for height and weight discrimination for refusing to accept her daughter Fredrika into its preprofessional program. Fredrika is of average height and weight, while modern ballet’s aesthetic standards require that dancers be tall and lithe.²
In Denver, the city government refused to issue a Columbus Day parade permit unless the organizers signed an agreement stating that ‘‘there will be no references, depictions, or acknowledgment of Christopher Columbus during the parade; and no speeches or wreath laying for Christopher Columbus will be conducted.’’ The city was responding to pressure from American Indian activists, who alleged that a parade celebrating Columbus would create an illegal ‘‘hostile public environment.’’³
In New York City, Michelle Ganzy sued the Allen Christian School for firing her after she became pregnant out of wedlock. Ganzy, like all of the school’s teachers, had agreed to serve as a role model for her students, in part by behaving in accordance with the school’s conservative moral beliefs. Nevertheless, Ganzy sued for sex discrimination. A federal court, seemingly oblivious to the threat this lawsuit posed to the autonomy of religious institutions, ruled in her favor, holding that ‘‘[r]estrictions on pregnancy are not permitted because they are gender discriminatory by definition.’’⁴
In Minneapolis, a group of librarians complained of sexual harassment because patrons using the library computers viewed images the librarians saw and found offensive. The Equal Employment Opportunity Commission found that the librarians had ‘‘probable cause’’ to pursue their claim. Because of this and similar cases, public and private libraries throughout the United States are under pressure to install filtering software on their computers, lest a librarian inadvertently view offensive material and file a sexual harassment lawsuit. Defining the issue precisely backwards, a representative of the National Organization for Women told the New York Times that she wondered ‘‘how far First Amendment rights may go before they infringe on sexual harassment laws.’’⁵
In Eugene, Oregon, the state Newspaper Publishers Association published a list of 80 words and phrases that its members should ban from real estate advertisements to avoid liability under federal, state, or local fair housing laws. The forbidden words and phrases include language that signifies an obvious intent to violate fair housing laws (e.g., ‘‘no Mexicans’’), but also language that is merely descriptive, such as ‘‘near church’’ or ‘‘walking distance to synagogue.’’ Fair housing officials overzealously interpret such phrases as expressing an illicit preference for Christians and Jews, respectively. The list also includes phrases that some fair housing officials believe are used as codes to discourage minorities (‘‘exclusive neighborhood,’’ ‘‘board approval required’’) or families with children (‘‘quiet tenants,’’ ‘‘bachelor pad’’).⁶ There are a number of other phrases that did not make the Oregon list, but that some realtors avoid nonetheless for fear of liability, including the following: master bedroom (either sexist or purportedly evocative of slavery and therefore insulting to African Americans), great view (allegedly expresses preference for the nonblind), and walk-up (supposedly discourages the disabled).⁷
Religious conservatives have also jumped on the antidiscrimination bandwagon. In Wellsville, Ohio, Dolores Stanley celebrated her new job as manager of the local Dairy Mart by removing Playboy and Penthouse from the store’s shelves. ‘‘It goes against everything I believe in as a Christian,’’ Stanley said. ‘‘There’s no way I could participate in that.’’ Stanley’s superiors at corporate headquarters, attempting to exercise Dairy Mart’s First Amendment right to sell legal magazines, told Stanley to replace the periodicals. She refused and was fired. The American Family Association, a conservative antipornography organization, represented Stanley in a lawsuit against Dairy Mart for sex and religious discrimination and for subjecting her to a ‘‘hostile workplace environment.’’⁸ The case settled before trial for a sum ‘‘well into the six figures.’’⁹

These anecdotes are just a few examples of the growing threat antidiscrimination laws pose to civil liberties. Some civil libertarians have attempted to finesse the issue by redefining civil liberties to include protection from the discriminatory behavior of private parties. Under this view, conflicts between freedom of expression and antidiscrimination laws could be construed as clashes between competing civil liberties. For purposes of this book, however, civil liberties retains its traditional definition, referring to constitutional rights protected by the First Amendment and related constitutional provisions.

The clash of civil liberties and antidiscrimination laws has emerged due to the gradual expansion of such laws to the point at which they regulate just about all aspects of American life. This expansion of antidiscrimination laws, in turn, reflects a shift in the primary justification for such laws from the practical, relatively limited goal of redressing harms visited upon previously oppressed groups, especially African Americans, to a moralistic agenda aimed at eliminating all forms of invidious discrimination. Such an extraordinarily ambitious goal cannot possibly be achieved—or even vigorously pursued—without grave consequences for civil liberties.

* * *

The civil rights movement initially focused on integrating African Americans into the nation’s economic life. Civil rights activists persuasively argued that since the end of slavery, whites in the United States had used a combination of social pressure, violence, and law to exclude African Americans (and, to a lesser extent, other minorities) from certain jobs, leisure activities, and neighborhoods. In the South, especially, a web of law and custom had relegated African Americans to something akin to a lower caste than whites. Righting matters, activists argued, required federal laws banning discrimination not only by state and local governments, but also by large private employers and business proprietors.¹⁰ Other groups received protection from the 1964 Civil Rights Act by piggybacking on the moral authority of the African American freedom struggle.

The provisions of the 1964 Civil Rights Act banning racial discrimination by state and local governments were uncontroversial outside of the often overlapping racist and ‘‘states’ rights’’ circles. The provisions banning discrimination by private parties, however, ran against a strong libertarian streak in American society that values freedom of association. Civil libertarians had traditionally been wary of antidiscrimination laws that applied to the private sector. In 1945, for example, a group of civil libertarians, including Nation publisher and NAACP cofounder Oswald Garrison Villard, publicly opposed a proposed New York fair employment law. They urged civil rights supporters to respect freedom of association and to ‘‘rely on the force of slow but steadily growing public opinion,’’ not legal compulsion, to combat employment discrimination.¹¹ In 1959, liberal philosopher Hannah Arendt published an essay in which she denounced discrimination by government, especially bans on interracial marriage—a taboo subject in those days—but also made clear her opposition to antidiscrimination laws that applied to the private ‘‘social sphere.’’¹² ‘‘Discrimination,’’ she wrote, ‘‘is as indispensable a social right as equality is a political right.’’

By the 1960s, however, civil rights advocates had persuaded most civil libertarians that it was impossible to defeat the quasi-caste system faced by African Americans without some interference with the private sector. In particular, civil libertarians agreed that freedom of association, which had already been effectively quashed for generations by both government and private violence in the Jim Crow South and elsewhere, could not suddenly become the governing principle of American race relations. A hands-off policy was especially unattractive in the South, where state and local government remained firmly in the hands of segregationists who could pressure businesses to retain Jim Crow. Federal antidiscrimination law instead provided business owners—of whom many had found Jim Crow to be a costly nuisance—with the wherewithal to integrate, by freeing them from the threat of retaliation by local officials.¹³

Civil libertarians’ concerns were also assuaged because the 1964 Civil Rights Act did not drastically infringe on civil liberties. The Act did impinge on freedom of association, but it only applied to relatively large businesses—those with 15 or more employees—and to places of public accommodation. Large businesses were already subject to myriad government regulations, and public accommodations had a centuries-old common law legal duty to serve all comers.¹⁴ The Act covered educational institutions, but applied only to institutions that wished to receive federal funds, a relatively minor source of revenue for most universities at the time. Religious organizations received exemptions from some aspects of the law.

Civil rights advocates’ respect for the First Amendment helped ensure that the early laws created little conflict with civil liberties. The source of this respect was that the constitutional protections afforded speech, assembly, and religion had been crucial to the success of the civil rights movement. Supreme Court decisions enforcing civil rights activists’ First Amendment rights consistently checked attempts by southern states to stifle the movement. Meanwhile, the movement established a base in black churches because even racist southern governments felt compelled to provide them a large measure of autonomy. Civil rights supporters, including government officials charged with enforcing the new laws, therefore thought it both shortsighted and wrong to eviscerate civil liberties in the name of civil rights. Major civil rights groups, including the NAACP and the American Jewish Congress, even opposed hate speech laws, which enjoyed a brief wave of popularity in the late 1940s and early 1950s.¹⁵ For many years following passage of the 1964 Civil Rights Act, few if any cases brought under antidiscrimination laws impinged on freedom of expression or free exercise of religion.

Destroying the quasi-caste system that had excluded African Americans from many employment opportunities and public accommodations seemed a daunting task in 1964, but the system was dismantled surprisingly quickly and easily. Within a few years of the passage of the 1964 Civil Rights Act, racial exclusion and segregation by hotels, restaurants, theaters, and other commercial spaces virtually disappeared. Within a decade, major corporate employers not only stopped barring African Americans (and women) from many positions, but began to aggressively recruit and promote them—at times in preference to white males with better paper credentials. Universities, once notorious for exclusionary practices, engaged in particularly aggressive affirmative action policies, as did many government agencies.

Support among whites for equal opportunity continued its long-term dramatic rise. The proportion of the public telling pollsters that African Americans should have the same job opportunities as whites rose from 42 percent in 1944 to 87 percent in 1966.¹⁶ Employment discrimination persisted, especially in blue-collar redoubts such as the construction industry, and integration remained elusive in both education and housing. Nevertheless, many barriers that had seemed almost insurmountable in 1964 had ceased to exist less than a decade later.

Once the racial caste system was largely dismantled, and newly organized groups—such as older Americans, gays, and the disabled—began to use civil rights terminology in expressing their demands for government intervention on their behalf, antidiscrimi-nation activists shifted their rhetorical emphasis. They no longer focused on historical and economic arguments regarding the need to end racial discrimination in employment and places of public accommodation. Rather, they argued that discrimination—as expansively defined by organized interest groups—should be banned as a moral evil. Once private-sector discrimination was portrayed primarily as a secular sin, rather than as an economic issue, the rhetorical goal of civil rights advocates became the elimination of invidious discrimination.

Ironically, conservatives were partly responsible for this shift in emphasis. Conservatives had generally opposed the 1964 Civil Rights Act on states’ rights grounds. Eventually, they became supporters of the Act and adopted the argument that antidiscrimination law’s basic purpose was to eliminate the moral evil of discrimination. For example, the first President Bush, who had voted against the 1964 Civil Rights Act as a congressman from Texas, in 1990 called discrimination ‘‘a fundamental evil that tears at the fabric of our society.’’¹⁷ In part, this shift was a result of a genuine change of heart among conservatives who were embarrassed by their previous tolerance of Jim Crow. But the emphasis on the moral component of antidiscrimination law also served a tactical goal: some conservatives believed that this emphasis would advance their argument that affirmative action preferences for minorities, whether voluntary or demanded by the government, should be banned as discrimination against whites.¹⁸

As the primary justification for antidiscrimination laws shifted from aiding previously oppressed groups to an austere moralism, the laws broadly expanded at the local, state, and federal levels. Antidiscrimination laws came to protect more and more groups against more and more types of discrimination. Enforcement of the laws gradually took on authoritarian traits, encouraged by the establishment of bureaucracies at all levels of government charged solely with the enforcement of antidiscrimination laws. Indeed, many jurisdictions came to call their civil rights enforcement bureaucracies ‘‘human rights’’ agencies—the term suggesting that enforcing anti-discrimination laws against private parties is analogous to enforcing bans on other activities widely regarded as violations of human rights, such as slavery, torture, and genocide.

As the intense moralism of modern antidiscrimination ideology became entrenched in American politics and society, antidiscrimination advocates, especially those who worked for the enforcement bureaucracies, increasingly viewed civil liberties as, at best, competing rights to be balanced against efforts to wipe out bigotry. At worst, they saw civil liberties as inconvenient and unnecessary obstacles to a discrimination-free world. This had grave practical implications for the First Amendment. HUD, for example, consistently interpreted ambiguous provisions of the Fair Housing Act in ways that threatened freedom of expression. Meanwhile, many courts interpreted antidiscrimination laws broadly, at times absurdly so. For example, courts consistently broadened the definition of ‘‘places of public accommodation’’ subject to antidiscrimination law to encompass entities like membership organizations that are neither ‘‘places’’ nor ‘‘public’’ nor ‘‘accommodations’’ according to the dictionary definitions and common usages of those words.

By the mid-1980s, antidiscrimination laws had emerged as a serious threat to civil liberties. Courts found that these laws punished everything from refusing to cast a pregnant woman as a bimbo in a soap opera, to giving speeches extolling the virtues of stay-at-home mothers, to expressing politically incorrect opinions at work, to refusing to share one’s house with a gay roommate, to refusing to fund heretical student organizations at a Catholic university. Defendants protested that their First Amendment rights were being trampled on, but to no avail. Through the early 1990s, courts consistently refused to enforce First Amendment rights and other constitutionally protected civil liberties when their enforcement would have limited the reach of antidiscrimination laws. The trend of recent court decisions seems more friendly to civil liberties, largely because the courts have been populated with conservatives less committed to the antidiscrimination agenda. However, the final outcome of the conflict between civil liberties and antidiscrimination laws remains unresolved. Meanwhile, the fear of litigation—fear not only of actually losing a lawsuit, but also fear of being vindicated only after a protracted, expensive legal battle—is having a profound chilling effect on the exercise of civil liberties in workplaces, universities, membership organizations, and churches throughout the United States.

* * *

This book is a broad critical overview of the growing conflict between antidiscrimination laws and civil liberties. Chapter 1, by necessity the densest and most academic chapter of the book, discusses the normative and constitutional reasons why the clash between civil liberties and antidiscrimination laws should be resolved firmly in favor of civil liberties. The next four chapters discuss the growing regulation by antidiscrimination laws of speech, including workplace speech, artistic expression, political speech, and campus speech. The sixth chapter explores the government’s use of antidiscrimination laws to force individuals and businesses to engage in speech. Chapters 7 and 8 recount how the growing scope of laws banning discrimination in public accommodations threatens the autonomy of private institutions and threatens to squelch the formation of organizations established for expressive purposes. In the next two chapters, the book discusses conflicts between antidiscrimination laws and religious freedom, focusing on religious schools and religious landlords, two groups that risk discrimination lawsuits when they act in accordance with their beliefs about sexual morality. Chapter 11 raises the issue of whether there are any organizations or activities too intimate to come constitutionally within the scope of antidiscrimination laws. The final chapter discusses the American Civil Liberties Union’s unwillingness to consistently defend civil liberties against antidiscrimination laws.

Given the moral authority of antidiscrimination law in a society still recovering from a viciously racist past, writing a book critical of many of antidiscrimination law’s applications is necessarily perilous, the law professor’s equivalent of a politician disparaging mom and apple pie. The laudable goal of the ever-broadening antidiscrimination edifice is to achieve a fairer, more just society. Yet even—or perhaps especially—well-meaning attempts to achieve a praiseworthy goal must be criticized when the means used to achieve that goal become a threat to civil liberties.

The student who callously utters a racial epithet, the business executive who excludes Jews from his club, the coworker who tells obnoxious sexist jokes, the neighbor who lobbies against housing for the mentally ill—the actions of these individuals can be infuriating, especially to those who, like the author of this book,¹⁹ have been personally victimized by bigots. But the alternative to protecting the constitutional rights of such scoundrels is much worse: the gradual evisceration of the pluralism, autonomy, and check on government power that civil liberties provide.

Students and others interested in delving into the issues discussed in You Can’t Say That! in more detail should visit this book’s accompanying website, http://mason.gmu.edu/~dbernste/book/, which provides links to all sources cited in the footnotes that are available online and other links to topics discussed in each chapter. The site also provides frequently updated links to reviews of You Can’t Say That! , opinion editorials by the author, and videos of the author discussing the book.