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

by David E. Berstein

Activists and courts are using antidiscrimination laws to erode civil liberties such as free speech, the free exercise of religion, and freedom of association. The books examines how these laws are being applied on college campuses and in the workplace in ways that threaten our fundamental freedoms.

Genres: Law, Nonfiction

200 pages, Paperback

First published September 16, 2003

Reviews

[Gopi · Rating 4 out of 5]

I loved this book and hated myself. Prof. Bernstein lays out the abridgement of constitutional rights, and the general restrictions that are placed on us by anti-discrimination laws.

As an old-school liberal (these days I'd be called a libertarian), I agreed with most of what Prof. Bernstein says, but I know enough history to understand what life was like before anti-discrimination laws were passed. It sucks when you strongly agree with principles that lead to very bad results.

Nevertheless, the book forces one to consider the merits and demerits of the current regime of law with regards to discrimination.

[Chad · Rating 4 out of 5]

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

[Rick · Rating 5 out of 5]

Excellent discussion of the ways that anti-discrimination laws are being used to trump and violate our Constitutionally guaranteed freedoms of speech, religion and association. Though it's written by a legal scholar and discusses the law, this would be a good read for non-lawyers as well. The author doesn't use a lot of legalese, and provides a vast number of real life stories that make you sick to your stomach at how our Constitutional rights are being ignored and brushed aside. I think everybody should read this book.

[Daniel · Rating 3 out of 5]

This is an interesting and easy-to-read overview of some of the pitfalls of anti-discrimination policies in the US, however it is let down by Bernstein's myopic analysis and selection of examples. Bernstein clearly opposes these policies and has set-out to expose them, but in doing so he has neglected to examine any cases where they have been employed successfully and his suggestions for improvements feel a little tokenistic.

[Mary Brasfield · Rating 5 out of 5]

David E. Bernstein’s You Can’t Say That! is a masterclass in clear thinking about civil liberties. He explains how antidiscrimination laws while designed to protect people can sometimes stretch into areas that suppress free speech, personal beliefs, and the freedom to associate.

What makes Bernstein stand out is his balance. He isn’t against equality; he’s deeply concerned with preserving liberty while pursuing it. His writing is sharp, accessible, and backed by years of scholarly expertise.

Thanks to Eleanor’s compelling discussion of the book, I picked it up and I’m glad I did. It’s thoughtful, honest, and absolutely worth reading.

[Sarah Martins · Rating 5 out of 5]

You Can’t Say That! is not your typical academic text. It’s bold, fearless, and uncomfortably honest in the best way. Bernstein dives into cases where antidiscrimination laws, intended to promote fairness, end up clashing with the freedoms that define an open society.

He exposes real tensions:

When does protection turn into censorship?

When do rights for one group restrict the rights of another?

And are we losing freedoms without noticing?

Bernstein doesn’t just inform he makes you think. Anyone who cares about the balance between equality and liberty should read this. Eleanor’s recommendation was spot-on.

[Lear Sarah · Rating 5 out of 5]

Bernstein writes with a rare combination of passion and precision. His analysis of how certain laws unintentionally limit civil liberties is not only compelling, it’s deeply human. He cares about freedom, and that sincerity comes through on every page.

This book made me pause, reflect, and reconsider things I thought I understood. Bernstein’s arguments are clear without being simplistic, bold without being reckless.

I’m grateful Eleanor Ris brought this book to my attention. It’s powerful, relevant, and something every thoughtful reader should experience.

[John · Rating 4 out of 5]

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

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

Occasionally, Bernstein betrays his conservative leanings by mocking Clinton's famous sound bites of the 1990s (which badly dates this book as a product of the 90s, rather than its 2002 copyright date), and by using phrases such as "avowed" homosexuals (p 147) as if it were merely a political party, rather than, eg, "out" gay men. (Is Bernstein an "avowed" Jewish-American?) This kind of misstep detracts from Bernstein's goal of taking to task those who twist the meaning and wording of laws for their own ends.

The book suffers from 90s hangover. Yes, there was a cultural explosion of PC in the early 1990s, and this obviously inspired Bernstein to write this. It does not detract from his mission that things swung back to the right after 2000 - the message is just as valid as increasingly polarized right and left pundits shout back and forth on endless cable channels and blogs. However, this book badly needs -- and well-deserves -- an update to consider the Bush years, the current governmental focus on terrorism, the Patriot Act, the mortgage crisis, the economic crash, the Occupy protests, and the first black US president. Bernstein's critical eye is needed more than ever - I for one can't wait to see him pull away from the 90s and update this important work!

[Lynn Schlatter · Rating 3 out of 5]

This book was a difficult read for me. Writing from a conservative and fifteen-year-old perspective, Bernstein lays out as ridiculous some anti-discrimination actions that I think of as perfectly sensible, like an unmarried couple suing over a landlord's refusal to rent to them or the introduction of a university president's public statements as evidence of intent to discriminate. So then I have to ask myself if I'm really as much of a free speech absolutist as I think I am. Compounding the problem is Bernstein's completely reasonable assertion that in the name of inclusivity, we are becoming more comfortable with tamping down pluralism, a concept that depends on people being allowed to express opinions that are abhorrent.

American history is rife with disagreements over the relative importance of freedom and equality. Currently, some Progressives seem to have arrived at the conclusion that we can't afford First Amendment rights, which include not only free speech, but also freedom of religion and association, because they're just too damaging to historically oppressed peoples. It's hard to argue with the idea that there's something wrong with a religion that elevates hatred over love or a person who persists in viewing those who are different as inferior, so why not just legally sanction both such entities? My best answer is I don't think making it a crime to express vile opinions will actually eliminate them. Engagement with the people who hold them seems a better long-term solution, and that requires freedom of expression on all sides.

So it turns out that in general I agree with Bernstein that First Amendment rights should be protected from the encroachment of anti-discrimination law, even though I'm leery of some of the specific activities he thinks should be covered by that. And I'm grateful to him for writing the book so I could give some thought to why I feel the way I do about those things.

[Michael Wheatley · Rating 3 out of 5]

Addresses the conflict between legislative action to curb discrimination and the the first amendment. Argues that in many cases judges have allowed anti discrimination laws to override constitutional rights.