The Growing Threat to Civil Liberties from Antidiscrimination Laws

“Intolerant activists are determined to impose their moralistic views on all Americans, regardless of the consequences for civil liberties.” The first sentence of You Can’t Say That! is actually a great, concise summary of the subject of the entire book. David Bernstein, the author, highlights the constant struggle we have as an American culture trying to find a safe, happy medium between freedom of speech and antidiscrimination. In the introduction chapter, he lists a few shocking instances in which our civil liberties have been threatened. One of the stories spoke of a woman named Michelle Ganzy of New York City who sued a Christian School for firing her when she became pregnant out of wedlock. However, when she applied for the position it was made clear that she would be a role model for her students and she was required to follow in accordance with the school’s moral standards. The federal court ruled in her favor, calling it gender discrimination. In a world that is becoming increasingly more “politically correct”, we have to stop and consider if we are really losing more than we are gaining.

Courts have granted antidiscrimination laws the ability to override civil liberties, although they haven’t done a very good job of explaining why or where the line is. The basic idea is to deter criminal activity and violence by getting rid of things that encourage it. Censorship in the hands of the government is a dangerous thing. Bernstein made a good point on page 13 when he said that if the government could ban any incendiary speech, we would never watch another Martin Scorsese movie and some of our favorite entertainment like Robin Hood, Antigone, and Bonnie and Clyde would be history. Many feminists believe that the first amendment is “a barrier to the government’s ability to pursue sexual and racial equality”. However, I would like to raise the question: can things that aren’t equal be equal? “It’s easier for people to discover that they have a bad can of peaches than it is for them to discover that they have a bad idea,” said Ronal Coase, a Nobel Economics Laureate. The truth is that freedom of expression is necessary for the evolution of mankind, especially the United States. It is what our country was founded on. I like the way Professor Andrew Koppelman of Northwestern University put it when he said, “racist speech may be substantively worthless, but outlawing it would give the state the power to decide which political views are worthless because racist.” To give the government more control would go against what this country was established for. We broke away from England and wrote up a constitution because we didn’t like the way we were being treated, and we drew up amendments to protect ourselves and our rights.

We all know that every job has explicit sexual harassment policies to follow, and most (if not all) are required to have them posted somewhere to give easy access to employees. However, in some places these regulations are stricter than others. This all started around 1970, when women entered the work force. As they entered a “man’s world”, they were subjected to foul speech thus creating a hostile work environment. It culminated with the Clarence Thomas – Anita Hill hearings that resulted in a nationwide workplace speech guideline that restricted any language that could offend women. The problem was that these codes were a bit vague and caused many businesses to go beyond what was expected of them. Since a “hostile work environment” doesn’t have a clear definition, many employers decided to simply ban anything with sexual connotations to avoid litigation. It’s always that one sensitive individual whom you think you can tell a joke to, and then before you know it you’re being sued for sexual harassment. Beyond gender, there was legal action taken against an employee who hung pictures of Ayatollah Khomeini and of Iranian protestors burning an American flag in her cubicle. She was found guilty of national origin harassment against an Iranian-American employee who saw the display one day. There was another case involving a woman who worked at the Jacksonville Shipyards in Florida. She was subjected to many sexual and derogatory remarks from the men who worked there and one even drew obscene graffiti of her. She took them to court and the judge ruled that the First Amendment does not protect workplace speech and then issued several bans on the company. Pornography and “sexually suggestive material” was no longer allowed at work. This act not only included Playboy and Maxim, but also Cosmopolitan and Danielle Steel novels. Employees were also not allowed to listen to Eminem or Britney Spears on their walkman. I found this to be more than a little extreme and although I completely agree with banning pornographic material, I do not agree with the latter.

Discrimination laws are even invading and threatening our artistic freedom. Krissy Keefer, a mother of an aspiring ballet dancer, was confused and humiliated when her daughter was rejected from San Francisco’s pre-professional school of ballet. They told her that her daughter was the wrong body type, but that she could go to the Dance in Schools program where, if she proved herself, she may be reconsidered. Keefer claimed it was height and weight discrimination and forced her daughter into a sea of media. Lawrence Goldhuber, a 350-pound modern dancer, mocked Keefer by saying, “Short people don’t get hired by the NBA. Should fat people be in the ballet?” People with certain body types are just not made to do certain things. I don’t think this is anything to be ashamed of. If we start trying to aim for physical equality as well, we will end up in the science fiction reality of “Harrison Bergeron”. There is even another case, however different, of a female professor who had Penn State University take down a print of Goya’s Naked Maja because it depicted a naked woman. She explained, “Whether it was a Playboy centerfold or a Goya, what I am discussing is that it’s a nude picture of a woman which encourages males to make remarks about the body parts.” In my opinion, there is nothing wrong with tasteful nude art. It is provocative, yes, but it is not meant to sexually stimulate or evoke immaturity. The fact that it does is a different cultural issue that would take up too much time and space to actually delve into now.

Although public universities mostly comply with the First Amendment, there has been some censorship in the last few decades in order to prevent a “hostile environment”. One university distributed a handbook to its students outlining what would be a violation of their new speech code. Some of the examples include: “sponsors entertainment that includes a comedian who slurs Hispanics” as well as “women just aren’t as good in this field as men”. I’m reminded of the childhood saying, “Sticks and stones may break my bones, but words will never hurt me.” When did we lose this ideology? When did we forget that words are just words, even if they are hateful? For children there should be some kind of guideline, so they are raised to know what is acceptable and what is not. I don’t think we really need to spell it out for young adults, especially when it is so difficult to actually draw the line for them. As a country, we are turning the budding generations into oversensitive, politically correct beings. In UCLA, a student was suspended for allowing an editorial cartoon to make it into the newspaper. In this cartoon, a student asks a rooster, “How did you get into UCLA.” The rooster replies, “Affirmative action.” The student was merely expressing his opinion, which should be protected under the First Amendment. He was not hurting anyone, nor was he threatening anyone by allowing the cartoon to run.

Private organizations aren’t even protected under the First Amendment anymore. Back in the late 1960s, John and Ruth Mallery founded a Boys’ Club in Santa Cruz, California in order to help keep young boys off the street and out of legal trouble. But there was a little girl named Victoria Isbister who didn’t understand why she couldn’t use the pool at this club. The issue was taken to court and it was ruled that it would have to be a Boys’ and Girls’ Club. This upset Ruth Mallery because this was against her dream and she decided that if the Supreme Court wanted it to be co-ed then they could pay for it themselves. Again, I believe the Boys’ Club should have been protected by the First Amendment. Ruth Mallery did not exclude girls because she did not like them or because she was trying to be mean. The club was meant to provide young boys with a place of recreation and to combat juvenile delinquency. With the acceptance of girls into the club, it caused a sharp increase in membership as well as a decrease in the number of boys. At that age, how many boys really want to hang out at a club with girls? In the attempt to make things equal, the courts ended up doing more harm than good and destroyed the original purpose of the club.

Christian schools follow religious doctrine that should be protected under the First Amendment. But if we look back to the account that is in the very first paragraph of this paper, we realize that is not always the case. In court it was ruled gender discrimination for firing a woman for getting pregnant, since men can not get pregnant. Bernstein points out that the only way the schools could prove they were being even-handed in this matter is to prove that they have or could fire a male teacher if they found out he had premarital sexual relations. Being religious myself, I believe that within a religious setting where there is a specified doctrine that has been spelled out for you to follow, there should be no questions about behavior. It was justified to fire the woman and I don’t believe it was fair that she won the court case.

In Madison, Wisconsin two women were looking to fill some of the bedrooms of a house they had rented out. They initially accepted the rent deposit from a woman named Caryl Sprague, who they already knew to be a lesbian. Upon further deliberation, they decided that they were not comfortable with this arrangement and returned the money to her. Litigation ensued and the girls were forced to pay legal fees to Sprague for emotional distress and punitive damages. I think they were completely justified in their actions. Nothing would have come into question if it was because Sprague had a dog, or if it was because she didn’t have a job. Even if they gave Sprague no reason at all for denying her, she would not have taken them to court. The only reason she did was because it had to do with her sexual orientation, which is unfair. If it makes them uncomfortable, it would definitely be an awkward living situation. I’m actually surprised that following the case the Madison City Council attempted to change the laws so that a person’s decision to decline the sharing of occupancy would not be challenged. In Washington D.C, in the Washington City Paper there were a few real estate advertisements that raised complaints among citizens and they were called “discriminatory”. For example, they said: “women-of-color seeking a new member”, “gay female seeking another gay female to share a house”, and “housemate needed for spacious 30ish group house”. Personally, I see nothing wrong with trying to find individuals who share the same subculture, beliefs or political views. In my opinion, that’s not racist nor is it discriminatory. It is merely preferable.

“One of the most cherished freedoms Americans enjoy is the right to lobby and criticize their government.” This statement is so true that I had to quote it word for word. We live in a country where the police are not going to bust down your door for unpatriotic and treasonous talk. Thankfully, we live in a country where you can picket or speak out freely against the government or openly dislike the president without fear for our lives. Still, we are allowing antidiscrimination laws to erode this freedom we have given ourselves. Slowly we are permitting the government to decide what is appropriate and what is not. It can’t be said that antidiscrimination laws are all bad – they have done some good when issued appropriately. However, I can feel the weight of the responsibility of being “politically correct” all of the time. Every day the regulations seem to tighten and certain words become unacceptable. Who can really say how long it will be until the government restrains us further or even revokes the First Amendment all together?