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November 05, 2003

Bernstein: Anti-Discrimination vs Free Speech

There's nothing so queer as immersion in a foreign environment, which is what I did yesterday afternoon at the Loyola Law School. Hearing out law professors in the company of law students is a rather freaky situation. I can only liken it to being in a one-way conversation in which the other person never gets to the point, although they seem to be making a lot of little arguments along the way. The Federalist Society which hosted this event and graciously extended an invitation, generally organizes their guest speakers into a debate format. It would have been preferable.

Back in the old days, I used to do this all the time. This being trolling the weekly newspapers and community bulletin boards looking for seminars, discussions and other public events which gather argumentative people for good head thrashing sessions. Needless to say, the web has obviated all that, many of those reasons came rushing by as I sat in the sparsely populated lecture hall for a mere 45 minutes.

The decided lack of energy percolating is, I suppose, to be expected of a libertarian law professor speaking on matters of conflict between Fourteenth and First Amendment rights. Bernstein clearly errs on the side of the First. I could barely get up enough steam to provoke the good professor, even as I lingered for the juicy part, the discussion after the discussion. Nevertheless, I am on shaky ground, surrounded by those who consume, digest and excrete legalese. One never knows what one doesn't know when it comes to the law; that's why these guys have careers.

When it comes to ideology, however, one can be a bit more fast and loose. Despite the kind of laid-back and insidey vibe of the joint, we almost got intense. But I've saved my comments for here. Read on gentle reader.

My problems with libertarians are multiple, and what I picked up from this cat was an interesting vibe. As far as I can tell, Bernstein places a great deal of faith and agency in the 'marketplace of ideas'. He credits the liberal progress of persecuted minorities in this nation to the success of this marketplace. As Eminem says 'We're gonna have a problem here'. To discuss this opens a large can of worms, but since Bernstein is Volokhian and I am likely to get some kind of response, I'm going to go there.

As someone who treasures the 1st over the 14th, Bernstein makes, by way of a series of embarrassing and egregious examples of the absurd positions the PC patrol (which he tellingly lumps in with multicultural activists, critical legal theory nutcases and affirmative action supporters) put us as in as Americans. OK. Further, he calls for a bit of stoic tolerance rather than emotive excess of victimization. So far so good. But I missed his opening statements so I don't know where he sees this slippery slope leading us.

It's difficult for me to worship the First Amendment because my distrust of its power cuts both ways. On the one hand if one is dedicated to a moral cause in defiance of the government, one speaks out whether or not that speech is protected. The Underground Railroad didn't need the First Amendment. The effectiveness of free speech is only relevant to democratic reform in the context of bourgie brotherhood, and that is only the subset of freedom which is liberty. We are not necessarily at liberty to do things free people ought and that is sometimes the critical difference, as the necessity of the Underground Railroad demonstrates.

On the other hand the First Amendment doesn't apply to money. Money is not speech, and a great number of things are possible with sufficient amounts of money which the powerful are at liberty to do which constrain freedom despite all the free speech in the world. The anti-smoking speakers practically own every form of media in their campaign against big tobacco, yet big tobacco persists. The effect of free speech is like rubber bullets against the armored vehicles of corporate power. The marketplace of ideas - even when it lands squarely in the domain of truth - doesn't stand a chance against markets with high barriers to entry that deliver fat cash flows to a powerful few.

Consequently, it's difficult for me to see the great harm that is brought to the nation through the excess litigation and culture of victimization expressed though the weird judgements and settlements of professional whiners and supporters of speech codes. The American legal system is chock full of frivolity bent on converting complaint into cash - Bernstein ought to be a bit more bent out of shape in his admonitions to perspective attorneys. Don't do such frivolous work. I'll go him one further and say half the litigation in this country is a prodigious misdirection of GDP, but he seemed to reserve his unction towards the rabble of activists named above. But if judges are to sit in judgement of the ridiculous... Well I'll get to that later.

Since I agree with Bernstein that there is no fundamental conflict between that group of Constitutional fixes I have learned today are called the Post Civil War Amendments and the First Amendment all we have is the contention around matters of equal protection under the law as guaranteed by the 14th. In this, at the hands of the Bad Guys, some enforcement of an interpretation of 'equality' is resulting in a transfer of wealth, censorship and a police state. Oh! I've heard this argument before. Hopefully this is what the good professor was getting at, otherwise the rest of this entry will be shadowboxing.

You see anti-discrimination law can trump the might First iff there is a compelling state interest. According to the professor, I understand that compelling state interest is no mere 'important' thing. In fact, it is more important than 'very important'. In other words it deals with excruciating situations - examples given were violent crime. We should not, however, go searching around for compelling state interests nor attempt to pre-empt though state power any category of danger from human experience.

Stepping aside momentarily without knowledge or prejudice of Bernstein's position on Lochner, it seems to me that labor protections which were generated in the context of collective bargaining should not limit individual employers and laborers from coming to their own decisions about how to handle their business. In this, I am all for free market mechanisms provided that contractors and contract makers are 'informated', which goes beyond simply informed. Somebody is 'informated' if they have a sufficient amount of data to make profitable decisions. If I was in the market to purchase a 325i, I can be informated about used BMW prices by having web access to historical records of transactions which are similar to those I would make.

Bernstein makes use of the familiar refrain, "I'd prefer that racists would just be up front". The argument he would make if he were so inclined would be make a law that forces discriminators to put up signs, and he speculates that the return of such jim crow signs would produce a market failure for any such discriminator. But he only sees harm in the form of market inefficiency in the absence of such signs. Without giving any credence to cosmic justice, one wonders how he so easily dismisses what disinvestment in the mainstream might result in countenancing overt discrimination. In either case I didn't hear anything from him to suggest aggressive enforcement of 14th amendment law is appropriate. I'd wager that if those companies busted for their codewords and covert discrimination by district attorneys were disassembled a la Enron on the regular, we'd see a bit less frivolous civil action. Who sues drug dealers for lowering the value of neighborhoods? Nobody. We are satisfied with criminal prosecution. Bernstein would prefer to deal with society's ills through informed market actions. With regards to punishing racists, we disagree.

Whenever I begin parsing words over racial discrimination I try to remind people to bring into context the actual acts of discrimination we were all about ridding. I think the language of 'compelling state interest' can be useful in this matter. For my own part, I have categorized racist discrimination into three classes. The same thing that mitigates my fear of the great harm done to the First Amendment by anti-discrimination civil action is the matter of degree. When people are sued for no good reason, that's a bad thing, but I think it is worse to suggest that we were always attempting to be so delicate, and it is this attitude which allows such suits to continue. We would do well to stop overemphasizing the litigations done adjudicating Class Three type offenses and strengthen our resolve to deal with Class Two and Class One. But by dismissing the ideology that advocates for suits over Class Three, we weaken our defenses against Class Two and One. I see this as a specie of Colorblindness as a cherished political value. It should not be.

Thomas E. Wood says it this way:

However one might feel about libertarian or quasi-libertarian objections to racial data collection and private sector enforcement of anti-discrimination laws, intellectual clarity and honesty require a clear acknowledgment that the choice between these principles and meaningful enforcement of anti-discrimination laws is very stark. If one favors laws prohibiting discrimination based on race and ethnicity in the public sector, one must acknowledge that such data is needed to enforce those laws. Similarly, if one favors laws prohibiting racial discrimination in the private sector, one must acknowledge the need for racial data in the private sector to enforce those laws.

This is the crux of the matter. If one allows for racist discrimination in the private sector, as most libertarians do, then one is not really defending civil liberty. One is simply allowing a privatized racist market. Any capitalist will tell you that the power of that market far outstrips that of government spending. Absent the kind of enforced jim crow truth in advertising, such markets will continue to reward racist discrimination and for the reasons I said before about the weakness of the First Amendment, liberty will be constrained. This is a far more important matter than the creeping totalitarianism of speech codes. Bernstein properly dismisses, with stoic tolerance, any prior restraint on MEChA, because he acknowledges that neither MEChistas nor Klanners nor neo-nazis are going to take over anything in America. But what privatized racist discrimination has done and continues to do is not monitored quite as fiercely by the EEOC as the FBI monitors skinheads and street gangs. Mind you we are talking about Class Two.

It is our unfortunate history, especially when playing fast and loose in ideological debates, to throw the baby out with the bath water when it comes to repairing discrimination and employing prophylactic methods. Out of the same side of the mouth that dismisses is the cult of victimization is support for defunding defenses against the dark arts of discrimination. A clear line for the support of liberty across ideologies has not been established. I would suggest that the same sentiment that opposes the frivolity of civil causes which trump the First Amendment consider criminalization of the more serious causes. If libertarians continue to insist that Affirmative Action is a Class Two racist offense and rant against the pluralist politics of multiculturalists, they are only undercutting liberty with their bourgie claims in defense of the First.

Posted by mbowen at November 5, 2003 01:46 PM

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