Our basic civil liberties are at stake! In a clearly misguided attempt to eradicate every vestige of "discrimination" in our society, activists and courts are using antidiscrimination laws to erode civil liberties such as free speech, the free exercise of religion, and freedom of association. Civil rights laws today are being applied in ways that threaten free speech on campus and in the workplace, the right of local community activists to speak out against government policies, the rights of private associations such as the Boy Scouts to determine their membership policies, and even the rights of individuals to choose their roommates.
"In America, we must carefully censor our speech as rules and laws stifle the most benign utterances. Bernstein illustrates the very real threat to the First Amendment and our civil liberties from increasingly absurd restrictions on free expression."
Catherine Crier, Court TV, and author of The Case Against Lawyers
"A must-read for anyone -- left, right, elsewhere -- who seriously cares about liberty in America."
Eugene Volokh, Professor of law, UCLA, and author of The First Amendment: Problems, Cases and Policy Arguments
"This book raises important and troubling issues about the erosion of civil liberties and shows how the guarantees of these liberties in the First Amendment have been repeatedly set aside when they conflict with antidiscrimination laws. Those who treasure civil liberties must read this book."
Diane Ravitch, author of The Language Police
"An important warning that the constitutional freedoms Americans hold most dear are threatened by the insidious influence of authoritarian busybodies who want to regulate every aspect of American life in furtherance of a radical, tyrannical egalitarian agenda."
Walter Williams, Former Chairman of the Department of Economics, George Mason University, and syndicated columnist
"The tension between antidiscrimination laws and civil liberties, such as free expression, privacy, and personal autonomy, is one of the most important and least explored challenges to individual freedom of our age. In this impassioned book, David Bernstein makes the libertarian case of vigorously defending freedom against the demands of legalized egalitarianism."
Jeffrey Rosen, Legal affairs editor,The New Republic, and author of The Unwanted Case
"[T]he American judiciary has established a pattern of activism that seeks to elevate antidiscrimination concerns above other legal, political and social concerns. The result of such action, assert[s] Bernstein, is a 'threat to civil liberties,' specifically those liberties guaranteed by the First Amendment."
Peter Leroe-Munoz, The Record, the Independent Newspaper at Harvard Law School
"Bernstein shows that the use of antidiscrimination laws in ways that interfere with someone else's civil liberties is not isolated to a single part of the political spectrum. It is not only Democrats who are guilty of the abuse, but Republicans as well."
Accuracy in Academia
"If you're looking to start an argument, take this book to an ACLU meeting."
The New York Post
Extended Review by Tucker Anderson, Wall Street Journal:
Early in life my parents taught me the childhood ditty "Sticks and stones will break my bones, but names will never hurt me" in order to inculcate into me the realization that my belief in myself was more important than what anyone else thought about me. After all, America was a "free country", and an essential element of that freedom was encompassed by the freedom of speech protected by the First Amendment to our Constitution, the document which together with the Declaration of Independence outlined the political philosophy of the founders of our country. However, as David Bernstein shows in this marvelous new book, increasingly over the past few decades intolerant activist zealots have managed to "impose their moralistic views on all Americans". And one fascinating aspect of this trend which he discusses is the "psychological endowment effect", that by promoting monetary remedies and subsidizing feelings of outrage over alleged injustices, we have reinforced the probability that the trend will continue.
The primary focus of this book by Professor (at George Mason University School of Law) Bernstein is the tendency of the judiciary to abandon our Constitutional protection against government's ability to regulate speech when such speech (and very worrisomely even acts such as laughter or simply staring) conflicts with antidiscrimination laws and the regulations of the agencies charged with their enforcement. The book is very well organized; it begins with a general background discussion of the problem including important contextual history and proceeds to discuss several related aspects of the problem including the threat to artistic freedom, workplace regulation, speech codes on public university campuses, the regulation of religious schools and the threat to the autonomy of private organizations. Some of the most enlightening material outlines the increasing tendency of the judiciary to defer to the bureaucratically promulgated regulations of such government agencies as HUD, the EEOC and the DOE, which often seem to view their own intentions as above criticism and attempt to censor and even legally punish individuals who express disagreement with their goals.
This is a book that should be widely read and debated, since the topic influences all individuals in a myriad of ways. I hope that the academic approach to the subject does limit the audience for the book to readers with a legal background; despite copious footnotes the book is very readable and many of the references and cases discussed are fascinating. Despite my long standing layman's interest in the area of Constitutional law and my exposure as a member of the Cato Institute Board of Directors to previous publications discussing various aspects of this topic, this is by far the most comprehensive and systematic treatment that I have seen. The final chapter includes a fascinating discussion of the gradual transformation of the ACLU from an organization that was a stalwart defender of civil liberties to one increasingly captured by the adherents to a "liberal" code of political correctness.
The conclusion then examines the trend in other countries to adopt even more draconian impositions of statist authoritarian regulations, e.g. an Australian ban on dating services that tried to match partners with a religious preference (perhaps antidiscrimination marriage regulations will follow) and a Canadian criminal conviction of a high school teacher purely on the basis of "hate speech". As a Canadian professor of constitutional law has opined, "Canada now is a totalitarian theocracy... ruled today by...a secular state religion [of political correctness]. Anything that is regarded as heresy or blasphemy is not tolerated." Such a result is consistent with the goals of such free speech opponents in this country as well known Professor Stanley Fish, who attempts to deconstruct our legal traditions in the same way that he has deconstructed literature and who claims that all decisions regarding allowable speech are political and based on an exercise of power. Therefore, according to Fish, the targets of offensive speech and acts have every right to be legally protected from the indignity (read psychological harm) which they might suffer as a result of such acts. Contrast this view and the current climate regarding the imposition of limitations on permissible speech with the 1943 Supreme Court decision which eloquently concluded "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
In summary, this book is about the conflict between an increasingly expansive view of civil rights versus the traditional primacy of civil liberties, and about the imposition of "civility" through political power and judicial reinterpretation of the Constitution rather than by argument and debate within civil society. As one reviewer cogently observed, this book might be deemed incomplete in that it does not include a discussion of the philosophical grounding of our First Amendment rights in the Founders' belief that these rights derived from the natural law view that we each possess a "property right" in ourselves and our actions. However, such an examination might easily have in fact become a distraction to the excellent focus which the book provides on the author's stated goal of examining and documenting the erosion of our civil liberties and the resultant implications for our personal freedom and privacy rights, thus I have chosen not to reduce my rating despite this omission.
Disclaimer: as stated above, I am a member of the Board of Directors of The Cato Institute, which published this book. While I do not feel that my objectivity was compromised in composing this review, I felt it incumbent upon me to disclose this fact to provide you, the reader, with the necessary information to decide if you believe that I have a significant conflict of interest which might have influenced my rating.