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Posts Tagged ‘discrimination’

The Crapola network has the scoop.

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Freedom has taken a battering in Netherlands lately and this latest news is a sad day for those of us who believe in free speech.

On a related note, it might be interesting to try and figure out what’s the best place for free speech today.

USA? Perhaps has the broadest protections for speech anywhere (thanks to the greatest piece of law ever written) with one sad exception: the obscenity statute. A culture of political correctness that is stronger than continental Europe does, however act as a social deterrent against certain types of speech.

Denmark? You will certainly not be prosecuted for obscenity, but hate speech laws exist — though they are rarely enforced.

Switzerland? Similar to Denmark, but also has laws against holocaust denial.

Netherlands? Till recently this would have been my answer, since their hate speech laws are not as broad and they will certainly not censor porn. Unfortunately they do have laws against discriminatory speech, which is what Wilders is (presumably) being charged under.

Ireland? I don’t know too much, but seems to be a good place. Technically laws against speech that ‘undermine public morality’ exist, but they are never enforced. They do not appear to have hate speech laws or holocaust denial laws.

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It is a sign of how far anti-discrimination laws have gone when a dating website is sued for not including homosexuals in the matchmaking service. I completely agree with Jacob Sullum:

In a settlement with the New Jersey Attorney General’s Office, the online dating service eHarmony, until now limited to heterosexuals, has agreed to start matching men with men and women with women. The deal resolves a complaint by a gay man who claimed that eHarmony’s failure to accommodate homosexuals violated New Jersey’s Law Against Discrimination.

[…] I’ve never bought the argument that gay marriage—i.e., the government’s evenhanded recognition of relationships between couples, without regard to sexual orientation—is a way of forcing “the gay agenda” onto people who object to it. But this coerced agreement, compelling a private business to provide a service it did not want to provide, certainly is. As Michelle Malkin notes, “this case is akin to a meat-eater suing a vegetarian restaurant for not offering him a ribeye or a female patient suing a vasectomy doctor for not providing her hysterectomy services.”

Also read this old article by Jason Dixon.

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OMG, this is so awesome!

But a little bit of background first. Ezra Levant is the publisher of Western Standard, a right-wing Canadian magazine. I quote from Glenn Greenwald’s post on Salon, where I first came across the video that appears next.

In February, 2006, he published the Danish Mohammed cartoons, which prompted an Islamic group’s imam to file a complaint against Levant with the Alberta Human Rights and Citizenship Commission, charging Levant with “advocating hatemongering cartoons in the media,” and the imam specifically accused Levant of “defaming me and my family because we follow and are related to Prophet Mohammed.”

Rather than dismiss the complaint as a blatant attempt to punish free thought and free speech, the Alberta Human Rights Commission announced that it would investigate. To do so, they compelled Levant to appear before a government agent and be interrogated about the cartoons he published, his thoughts and intent in publishing them, and the other circumstances surrounding his “behavior.” Under the law, the Commission has the power to impose substantial fines and other penalties on Levant.

Well, Levant insisted on recording the proceedings and was directed by the Commission not to publish the video, but he did so anyway. Just watch it! I would have replied in exactly the same words as Levant if I were in his situation, but it’s still f***ing awesome! Here’s the video.

Any restrictions on free speech by the government, yes even hateful and bigoted speech (except perhaps, speech that is part of a direct criminal conspiracy to incite violence) is fundamentally wrong. After all, it is only offensive speech that needs protection; thus the only kind of freedom of speech that is meaningful is the kind that has no caveats whatsoever. Hate-speech laws, ‘do-not-ridicule’ laws and holocaust denial laws have no place in a truly liberal society and they eventually come back to bite even their proponents, as many leftist intellectuals in Europe are discovering now.

Here are some previous posts by me on this theme.

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This case is so absurd that it is difficult to take it seriously. Priya Venkatesan, who taught writing this year at Dartmouth College, is threatening to sue former students under Title VII of the Civil Rights Act for criticizing her in course feedbacks. This report has the details along with snippets of Ms Venkatesan’s own writing, which should leave no doubt in anyone’s mind why she got so poor evaluations.

Oh, and Title VII, for those who are unaware, is the primary federal law that prohibits discrimination in employment. For the life of me I don’t see how that can be used to sue the students, who are neither Ms Venkatesan’s employers nor her colleagues. Besides, as any lawyer would point out, they have an obvious first amendment right to censure their professor in evaluations. Maybe Ms Venkatesan has a postmodernist explanation for all this…

Here’s a link to the Dartmouth blog coverage on the matter. Also, my thoughts on Title VII and other anti-discrimination laws.

(Link via Instapundit)

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From a CNN news story:

Like hundreds of young men joining the Army in recent years, Jeremy Hall professes a desire to serve his country while it fights terrorism.

But the short and soft-spoken specialist is at the center of a legal controversy. He has filed a lawsuit alleging he’s been harassed and his constitutional rights have been violated because he doesn’t believe in God. The suit names Defense Secretary Robert Gates.

“I’m not in it for cash,” Hall said. “I want no one else to go what I went through.”

Known as “the atheist guy,” Hall has been called immoral, a devil worshipper and — just as severe to some soldiers — gay, none of which, he says, is true.

Link.

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Buoyed by its Supreme Court success on the reservation issue, the Indian government now wants to introduce quotas in private educational institutions as well.

I quote from the report in the Telegraph (emphasis mine) :

The Centre plans to table a bill to introduce quotas and control fees in private higher education institutes in the monsoon session of Parliament.

Aided and unaided private higher education institutes, including management schools, will be covered. But private unaided minority-run institutions will be exempt from the proposed law.

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posted earlier about the Elane Photography case. The New Mexico Human Rights commission issued its opinion today, holding Elane Photography guilty of discrimination. As Eugene Volokh discusses here, the breadth of the decision is astounding and ostensibly covers other businesses of a similar nature. For instance, freelance writers — by the same logic employed by the commission — can be compelled to write things contrary to their religious beliefs.

As this case makes clear, the attack on freedom of speech from anti-discrimination laws is current and real. And it is getting worse.

(Link via The Volokh Conspiracy)

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The Supreme Court judgement on the OBC reservation issue should not surprise anyone. After all, the Supreme Court’s job isn’t to make laws but merely to ascertain whether existing laws were broken. And in the present case, the Supreme Court decided that nothing in the Indian Constitution prevents Arjun Singh from adding a 27% quota in government institutions. Again, I have to agree — the Constitution itself has been weakened to such an extent through laws and precedents that it will be surprising if any law is ever again judged uncontitutional.

For those who are concerned that this will devalue the IIT and IIM brands, slow down development, heighten inter-caste animosity and reduce opportunities for much of the population without really helping the rest — well, of course you are right, but fret not! As Aristotle The Geek points out, the market will do its best to correct the situation.

So much of recent history can be viewed as a case study of the market systematically correcting (at least some of) the ills caused by ill-advised government action. Isn’t that ironic?

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Eugene Volokh writes about a hypothetical scenario involving a mixed-race couple in the photography incident:

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.

There should be nothing particularly daring about this position.

Needless to say, I agree. And my position will remain the same if I am discriminated against by someone in the US because I am an Indian.

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In America, you have freedom of expression and freedom of association, except when you don’t. Since the passage of the Civil Rights Act, one does not really have the right to decide who one hires, or rents out one’s apartment to, allows inside one’s restaurant, or does business with. If you refuse to deal with someone commercially because of their race, sex, age, sexual orientation or other protected characteristic, the government will punish you.

Yet the Civil Rights Act, in its original form, did allow significant exceptions for activities of a private or expressive nature. Much of that is no longer true. Courts are interpreting the provisions of anti-discrimination laws in ever broader terms. One no longer, for instance, has the right to decide who one lives with.  And now, it appears that one cannot even choose what one photographs. 

Elane Huguenin refused to photograph a client’s same-sex commitment ceremonies, and the New Mexico Human Rights Commission decided that this violated state antidiscrimination law. Elane has to pay over $6000 in attorney costs.

Eugene Volokh has a series of excellent posts regarding this particular incident, which I highly recommend. He argues that since photography is an art, this judgement violates the first amendment. I agree. However, even if that were not the case, I think there is no rationale for an anti-discrimination law that forces someone to offer their service to others — especially when the act of discrimination does not significant restrict the client’s ability to obtain that service (I am sure there were many other photographers who would have been willing to do the job for this particular client).

Ultimately, all these laws boil down to an intent to strip individuals of their right to make ‘immoral’ choices and use the power of the state to force this; and that, in my view is the ultimate immorality.

(Hat tip to The Volokh Conspiracy, where I saw this story)

Previous posts in this blog on anti-discrimination law:

Anti-discrimination laws and freedom

The need to defend the rights of bigots

 

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I stumbled upon this excellent article by Jason Dixon on anti-discrimination laws which parallel my thoughts on the subject. While Jason’s article focusses on sexual-orientation, it could apply equally well to any other protected characteristic such as race, gender or age.

It is not a comfortable position to defend the rights of bigots who do not look past their fear of The Great Unknown and realize that gay people are not a threat. But it is exactly those rights that I must defend.

Couldn’t have put it better myself.

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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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