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

• Author: McGowan, David
• Position: Book Review

YOU CAN'T SAY THAT: THE GROWING THREAT TO CIVIL LIBERTIES FROM ANTIDISCRIMINATION LAWS. By David Bernstein. (1) Washington, D.C. Cato Institute. 2003. Pp. 198. $20.00.

Restrictions on expression present a harder case for libertarian-leaning scholars than we seem to want to admit. Expression does things. It informs, provokes, offends, cajoles, coerces, calms, deceives, degrades, entreats, and so on. Some people experience some of these things as harm. When A's expression harms B, even those who believe the government should not penalize "harmless" conduct, but may intervene to prevent harm to others, must reconcile a principle of free expression with whatever version of a harm principle they endorse. (3)

The law recognizes some harm from expression and treats it as harm. Causes of action protecting a reliance interest, such as fraud or malpractice, exemplify the point, as do laws against blackmail, extortion, or threats. (4) In other cases, the law disregards even plausible claims of expressive harm. A person offended by Cohen's "luck the draft" message, (5) or Robert Mapplethorpe's images of certain sexual practices, (6) may well suffer subjectively genuine trauma, as might a public figure depicted as having had sex with his mother in an outhouse. (7) In these cases, disregarding harm is the affirmative policy of the First Amendment. (8) These points remind us that in a heterogeneous society any free speech principle, no less than any other principle, has to be defended both in terms of its rightness and its results. (9)

The question of what should count as expressive harm is central to You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, written by Professor David Bernstein of the George Mason University School of Law and published by the Cato Institute. As the book's title implies, Professor Bernstein argues that antidiscrimination laws may restrict speech. That claim supports the reciprocal inference that speech may create or perpetuate inequality. If and to the extent inequality counts as harm, the conflict between the protection of free speech and at least a strict version of the harm principle is fairly joined.

Professor Bernstein has chosen not to write a study of this conflict, however. His book tells a polemical story. In this story, which Professor Bernstein tells with great skill, hypersensitive plaintiffs, prudish social conservatives, and liberals who value equality over liberty are using laws against discrimination to suppress constitutionally protected speech. The threat is growing, and defenders of liberty, who in this story play both victim and hero, have got to repel the egalitarian assault. (10)

The moral of Professor Bernstein's story is that persons who take offense at speech simply have too thin a skin. They should buck up and learn to cope with the real world. Commands like that sound tough and tough-minded. Some might find this simulacrum of toughness pleasing. Commands are not reasons, however. They do not provide an autonomy-based account of what should and should not count as expressive harm.

To distinguish expressive harms the law should recognize from expressive harms the law should ignore requires reasons, not commands. To the extent welfare is relevant to this distinction, we need utilitarian reasons as well as libertarian ones. Either way, "get over it" will not do. So, although one may admire Professor Bernstein's devotion to liberty, particularly the often underrated freedom to arrange one's own economic affairs, and while I suspect we would agree on the results of many cases, his embrace of narrative is troubling.

The main lesson of this book is that no plausible free speech principle can justify all forms of liberty. A secondary lesson is that libertarian storytelling is subject to the same limitations that apply to storytelling from any other political perspective. The libertarian case is better made through logical arguments, based on clearly stated principles, which state and confront opposing views in their strongest form.

I

Professor Bernstein's large story is told through many smaller ones. The small stories cover a lot of ground--from the Miller Brewing Company and the New York Times to libraries, the Boy Scouts, the Nation of Islam, Princeton eating clubs, rental properties, university campuses, university classrooms, restaurants, a ballet company, newspaper want ads, parades, and the television program Melrose Place. The number and variety of these small stories creates two problems. The first has to do with what the stories actually show. I discuss this point in this Part. The second has to do with the need for a theory of speech adequate to hold the stories together. I discuss that problem in Part II.

1. NARRATIVE AND CONTEXT

   The first problem is one of completeness. The strategy of telling one big story through many little ones forces Professor Bernstein to provide only brief summaries of the cases he describes. Adding facts to the book's description of some cases reduces the degree to which these cases depict egregious incursions on liberty.

   Mackenzie v. Miller Brewing Co. (11) is a good example. It leads off Professor Bernstein's criticism of laws forbidding discrimination in the workplace, most particularly discrimination allegedly caused by a hostile work environment. Professor Bernstein says Mackenzie is about a 19-year Miller employee who "made the career-ending mistake of recounting the previous night's episode of the sitcom Seinfeld to his coworker Patricia Best" (p. 23). That episode had Jerry Seinfeld dating a woman whose name he could not remember. He did remember that her name rhymed with a female sexual organ, producing half an hour of euphemistic names leading up to the punch line: "Delores."

   According to Professor Bernstein, Best, who he is careful to note "was apparently known to use salty language at work herself," complained that Mackenzie had harassed her (p. 23). Miller fired Mackenzie, who sued Miller, his supervisor, and Best for what Professor Bernstein describes as "wrongful termination and other wrongs" (p. 23). Professor Bernstein writes that at trial Miller "acknowledged that the direct cause of Mackenzie's termination was the Seinfeld incident and the ensuing fear of a sexual harassment lawsuit" (p. 23). Mackenzie won a $26.6 million verdict, including $1.5 million personally against Best for interference with his employment contract (p. 23).

   There is more to the story than that. Mackenzie's main claim was that Miller deceived him when it said a corporate reorganization would not harm him, and again when it failed to disclose it had reclassified his job at a lower level. (12) $24.5 million of the damages were awarded on this theory, the elements of which--misstatements, omissions, and reliance--were largely unrelated to the Seinfeld incident. (13)

   In addition, Best was not the first woman to complain about Mackenzie's conduct. Mackenzie's secretary previously had sued Miller, alleging that Mackenzie sexually harassed her. Miller settled that case for $16,000. (14) As for Best, media reports of the trial said that after the Seinfeld incident she asked Mackenzie's superior what she should do; he advised her to work it out with Mackenzie. When she complained to Mackenzie, however, he questioned why Best was complaining, given that she used bad language herself. (15)

   In light of these facts, Professor Bernstein is too skeptical of Miller's claim that it fired Mackenzie for exercising "poor management judgment." Mackenzie was a supervisor who had already been sued for sexual harassment and who nevertheless bantered about women's sexual organs with a female subordinate and then reacted petulantly when the subordinate complained. It would have been perfectly reasonable for Miller to conclude that Mackenzie's judgment was poor. (16)

   More significantly, though Professor Bernstein claims Miller "acknowledged" firing Mackenzie because it feared Best would sue (p. 23), the opinions do not say that. Quite the opposite. The court of appeals opinion states that Best did not threaten to sue Miller and, in fact, tried to dissuade Miller's management from punishing Mackenzie. (17) Perhaps Miller management feared Best would change her mind before the limitations period ran, but that is just speculation. With ample reason to accept Miller's explanation of the firing, there is reason to question Professor Bernstein's interpretation of the case. (18)

   There is also more than Professor Bernstein mentions to the story of a suit brought by Hunter Tylo, an actress hired to play a seductress on the television show Melrose Place (pp. 42-43). The show fired her when she got pregnant (p. 43). She sued for breach of contract and discrimination. (19) The show defended on the seemingly sensible ground that her contract required that there be no "material change" in her appearance. Professor Bernstein notes that she gained 47 pounds while pregnant, and invites the reader to imagine her pregnant in a bikini (pp. 42-43). Ms. Tylo won at trial. The jury awarded her $4 million in damages for emotional distress and $894,601 for economic losses. (20)

   That result does seem wrong--the contract said what it said, and her appearance was a material part of the agreement--but the case seems less outrageous when one learns that the jury heard evidence that the same show previously had accommodated the pregnancy of its main star, Heather Locklear, by rearranging the shooting schedule and using a body double while continuing to photograph her face. (21) A juror might conclude that if a body double would do for Ms. Locklear, it would do for Ms. Zylo. (22) The woman hired to replace Ms. Tylo also got pregnant, and the show did not fire her, though it is not clear from the media reports whether this fact was in evidence. (23) Ms. Tylo testified that she is a Christian and that, when the show's producers learned she was pregnant, they...