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Posts Tagged ‘david bernstein’

David Bernstein has a fine post where he explains the perils of having ‘reasonable restriction on free speech’ such as hate speech laws:

When I was in law school, advocates of weakening First Amendment protections to restrict “hate speech” pointed to Canada as a shining example of how egregious expression could be banned without threatening freedom of speech more generally. At the time, the Canadian Supreme Court was holding that Holocaust denial and violent, misogynistic pornography are not protected under Canadian constiutitional law. And, really, who wants to defend Holocaust denial and violent pornography? Yet, less than twenty year later, we have Canadian citizens being prosecuted for quoting biblical injunctions against homosexual activity, or for merely reprinting the Danish Mohammed cartoons. (For the latest outrage, see here, courtesy of Instapundit). So the Canadian example hasn’t quite worked out as its prior advocates had anticipated. Instead of being an example of “reasonable” restrictions on freedom of expression, it has become an example of the slippery slope problems inherent in allowing restrictions on freedom of expression based on subjective views of what is sufficiently offensive or problematic to be banned.

I have pointed out the same thing in several old posts. And even leaving aside the slippery-slope argument, there is something fundamentally immoral about censoring someone’s opinions because it is distasteful.

Bernstein’s post also goes into other issues, such as the intrinsic arbitrariness of tribunals that end up enforcing such laws. Read the whole thing.

By now, the most important truth ought to be obvious to all — freedom of speech needs to be absolute in order to mean anything. Thus one cannot have a thing such as a “right to never have your feelings hurt”.

Unfortunately, as Orwell famously said, to see what is one front of one’s nose needs a constant struggle.

So I repeat myself, ad nauseum, for that is all I can do really.

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And thuggishness by, well, see below…

A month ago, I wrote critically about Obama’s attempt to silence advertisements that opposed him: using a combination of his passionate supporter-strength and legal threats.

Sadly, it was not a one-off incident.

The latest targets of the Obama campaign is an advertisement by the National Rifle association (NRA). Obama claims that the ad misrepresents his position, which may well be true. But his response goes beyond that.

The Obama campaign has written radio stations in Pennsylvania and Ohio, pressing them to refuse to air an ad from the National Rifle Association.

“This advertisement knowingly misleads your viewing audience about Senator Obama’s position on the Second Amendment,” says the letter from Obama general counsel Bob Bauer. “For the sake of both FCC licensing requirements and the public interest, your station should refuse to continue to air this advertisement.”

As the letter makes clear, it’s not just a request but a transparent legal threat.

Yes, Obama, and indeed every individual has the right to make legal threats. But this issues isn’t whether Obama did anything illegal in sending that letter (he didn’t) but whether you want a president who lacks the basic respect for the First Amendment and free speech that was displayed here. Can you imagine what it would be like if in an Obama administration, the people sending these letters are not lawyers but Federal investigators?

Yes, the First Amendment is too precious to take a chance with. So, despite the fact that I am an Obama supporter, I’ll respond to him in the only way I can think of — by linking to the NRA ad that he hates.

Update: I now see that David Bernstein at Volokh had the same idea. Good for him and I hope more people do this. The small difference is that Prof. Bernstein titles his post “Doing my patriotic duty”. I am not American, and in any case, this is not about a country. So let’s just say I am being true to my beliefs.

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Rights and “Rights”

John and Terry Hoffius own an apartment building in Jackson, Michigan. In the summer of 1993, they had a vacancy and advertised it. They were contacted by a couple, Kristal McCready and Keith Kerr, who expressed interest in renting it. When asked if they were married, McCready and Kerr replied in the negative. Mr. Hoffius informed them that according to his religious beliefs it was sinful to cohabit out of wedlock and that he would not countenance it by renting to them. McCready and Kerr soon found another apartment in the area but would not just let the matter drop. They filed a suit against the Hoffiuses, alleging housing discrimination. The case went all the way up to the Michigan Supreme Court. In a 4-2 decision, the Supreme Court held that the Hoffiuses had violated the plaintiffs’ “rights” by not renting the apartment to them. [1]

In a 2002 decision, the California Fair Employment & Housing Commission fined Melissa DeSantis $500 for inflicting “emotional distress” on a would-be roommate by allegedly telling him that “I don’t really like black guys. I try to be fair and all, but they scare me.” The decision also required her to pay the would-be roommate $240 in expenses and take “four hours of training on housing discrimination.” [2]

Ann Hacklander-Ready rented a four-bedroom house in Madison, Wisconsin, and sublet three of the bedrooms to female housemates. After two housemates moved out, Hacklander-Ready and her remaining housemate, Maureen Rowe, looked for replacements. They initially accepted a rent deposit from Caryl Sprague, knowing that she was a lesbian. Hacklander-Ready and Rowe later decided they were not comfortable living with a lesbian, and returned Sprague’s deposit. Sprague then filed a discrimination complaint with Madison’s civil rights commission against both Hacklander-Ready and Rowe. The judge ruled against the duo, and ordered them to pay damages. Rowe settled but Hacklander-Ready appealed. She lost and was ordered to pay $23000 to Sprague in attorney fees, in addition to thousands of dollars worth of damages. [3]

In each of the above examples, someone’s rights were violated. It was the person who the court/commision found guilty.

The right to associate, fundamental to any free society, includes the right to not associate. The right to free speech incorporates the right to express opinions that may offend others. The ever-expanding scope of anti-discrimination laws strikes at the heart of these freedoms by telling us what we cannot do with our own property and what opinions we may not express. The greatest threat to liberty in the United States today comes not from the Al-Qaeda but from within — from the recent explosion of various laws that seek to erode civil liberties in the name of “compelling state interest”. Anti-discrimination laws are a prime example of those.

The original laws

“A society that puts equality – in the sense of equality of outcome – ahead of freedom will end up with neither equality nor freedom. The use of force to achieve equality will destroy freedom, and the force, introduced for good purposes, will end up in the hands of people who use it to promote their own interests. On the other hand, a society that puts freedom first will, as a happy by-product, end up with both greater freedom and greater equality”. -Milton Friedman

The two primary American federal laws that govern discrimination in businesses and property are the Civil Rights Act of 1964 [4] (henceforth abbreviated to CRA) and the subsequent Fair Housing Act of 1968 [5]. These laws prohibit discrimination on the basis of race, national origin, religion and sometimes sex. For instance, Title II of the CRA mandates that a person cannot be refused entry into a public place (such as a restaurant, hotel or theatre) on the basis of these characteristics. Title VII forbids employers from discriminating against a member of the above “protected classes” in any aspect of employment including hiring, firing and compensation. The Fair Housing Act makes it illegal to refuse to sell or rent a dwelling to any person because of his race, color, religion or national origin and it also outlaws discriminatory housing adverts.

Now, equality before the law is one of the fundamental tenets of a democratic society. Thus, there is no place for any kind of discrimination in legislation, government agencies or state-funded institutions. Indeed much of the CRA is concerned with outlawing this kind of state-mandated discrimination and I have absolutely no quarrel with those parts of the Act. Titles II and VII of the CRA and much of the Fair Housing Act, however, go much further than that; they impose restrictions on privately owned businesses. They lay out a particular moral standard and require that this standard supercede the individual’s choices even in matters that ought to be strictly his business. That to me is unjustified and immoral.

Some might argue that certain restrictions on freedom are necessary for ensuring social justice; that a complete absence of anti-discrimination laws will inevitably result in terrible consequences. My answer to them is this: the restrictions on individual liberty that anti-discrimination laws impose are huge and therefore they cannot be justified unless the likely consequences (of not having these laws) are sufficiently catastrophic. Let us therefore pause to consider what will happen, in this day and age, if all anti-discrimination laws which curtail property rights are repealed. Will it lead to overt discrimination in private businesses? Yes, some. However there is no doubt in my mind that the loss of profit, and more importantly the social stigma this will invite will be a very strong discouraging force and will ensure that instances of discrimination remain extremely rare. The current mainstream attitudes, as the reader will undoubtedly agree, are overwhelmingly against discrimination and no business that gives even the slightest importance to its brand image will dare indulge in overtly discriminatory conduct. The beauty of a free society is that there is always plenty of choice and a person who is the victim of one irrational bias will nevertheless find ten other places that will serve him without reserve.

What about the destructive wholesale discrimination against blacks in the early part of the last century, some may ask. One answer, of course, is that times have changed and the example is irrelevant to our present topic. The discrimination against blacks that occurred then will have never occured today even if there was no CRA. Indeed, the massive change in the attitude towards blacks among ordinary people and the rejection of the slavery-era mentality occured in the years before the passage of the Act (the very fact that the Act passed with popular support is testament to that) and thus many of the provisions of the CRA were unnecesary from inception! In some ways, however, this answer is unsatisfactory for it seems to leave open the question of whether a CRA-like act would have been justified, say, a hundred years ago (disregarding the fact that it would have never passed then!). A better answer is obtained by taking a closer look at the precise nature of that wholesale anti-black discrimination. As Ruwart points out [6], that wholesale dicrimination was a direct result of legislation. Laws were passed by the government which made it costlier to hire blacks, made it illegal for blacks and whites to mingle together and mandated discrimination in several other ways. In a truly libertarian society such laws would not exist, nor would anti-discrimination laws like Title II and VII, for all these laws share a defining characteristic — they restrict freedom and choice.

However, the greatest irony is that coercive laws like these seldom have the desired effect. They may achieve some (forced) racial integration but that does not naturally translate to less racial tension. They take away basic property rights and replace them with governmental tyranny and meaningless political correctness. In the words of Congressman and presidential candidate Ron Paul [7],

“The Civil Rights Act of 1964 not only violated the Constitution and reduced individual liberty; it also failed to achieve its stated goals of promoting racial harmony and a color-blind society. Federal bureaucrats and judges cannot read minds to see if actions are motivated by racism. Therefore, the only way the federal government could ensure an employer was not violating the Civil Rights Act of 1964 was to ensure that the racial composition of a business’s workforce matched the racial composition of a bureaucrat or judge’s defined body of potential employees. Thus, bureaucrats began forcing employers to hire by racial quota. Racial quotas have not contributed to racial harmony or advanced the goal of a color-blind society. Instead, these quotas encouraged racial balkanization, and fostered racial strife.

Of course, America has made great strides in race relations over the past forty years. However, this progress is due to changes in public attitudes and private efforts. Relations between the races have improved despite, not because of, the 1964 Civil Rights Act.”

The draconian morphosis

The original laws were however only the beginning; the top of the classic slippery slope. They opened the doors to more recent anti-discrimination laws that are much more draconian. For instance, Title VII of the CRA applies only to businesses with 15 or more employees. This was done in mild deference to the relatively private nature of small businesses as well as to save them from the often formidable costs of fighting a discrimination lawsuit. Many states however have since enacted laws that are essentially versions of Title VII without the 15 employee exemption. Thus, in California, anti-discrimination laws apply to employers with more than 5 employees; in New Jersey, the law applies to even 1 employee companies.

Many other examples are provided by David Bernstein in an excellent article [8] .

“While the civil rights laws of the 1960s were generally sensitive to civil libertarian concerns, contemporary antidiscrimination laws often are not. For example, in deference to freedom of association and privacy considerations, the 1964 Act prohibited discrimination only in public facilities such as restaurants, hotels, and theaters. Newer laws, however, often prohibit discrimination in the membership policies of private organizations ranging from large national organizations like the Boy Scouts of America to small local cat fanciers’ clubs.”

Of the many inroads that anti-discrimination laws have made into the private realm, one that I find particularly disconcerting concerns roommate selection. The original form of the Fair Housing Act only covered landlords, not roommates (except on the issue of discriminatory adverts). They also contained an exemption clause for landlords who rented less than four units and lived on the premises. Recently however, as the examples in the beginning of this article show, the law has been interpreted to cover roommates, even those who do not own the apartment. Deciding who to share a house with is an intimate matter and when laws and courtrooms interfere with that, something is very wrong. Eugene Volokh’s post on this subject [9] mirrors my sentiments.

Frankly, I am surprised at the relative lack of outrage on this issue. If the government attempts to clamp down on free speech there will be protests, and rightfully so, but many of these protesters will remain silent on issues of freedom that touch on politically sensitive themes like these. Of course, most of us are not racist, sexist, or anti-gay. However, a necessary characteristic of freedom of expression and association is that there be no caveats; the real test of liberty is when people offend.

There is no doubt that discrimination can be extremely offensive and pernicious; thus the idea of allowing people to discriminate may strike some as going too far. In the end however, as David Bernstein puts it, “it is a small price to pay for preserving the pluralism, autonomy and check on government power provided by civil liberties.”

References:

1. Housing Discrimination Laws and the Continuing Erosion of Property Rights-www.fff.org

2. FEHC Dec. No. 02-12, 2002 WL 1313078

3. http://volokh.com/2002_07_14_volokh_archive.html#85248159

4. Civil Rights Act of 1964 – Wikipedia

5. Fair Housing Act – Wikipedia

6. http://www.theadvocates.org/ruwart/questions_maint.php?Category=6&id=156

7. The trouble with forced integration – Ron Paul archives

8. http://www.cato.org/pub_display.php?pub_id=2719

9. http://volokh.com/posts/1179259134.shtml

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