Bernstein: It’s the mentality that anti‐discrimination concerns should override everything else, that the fundamental liberties we’ve enjoyed in this country since the founding era, freedom of expression and the subsidiary rights of freedom of speech, freedom of the press, of religion, the right to petition government, all of these need to be subordinated to the anti‐discrimination agenda. To the extent that people who advocate this position recognize that the First Amendment sometimes has to overcome anti‐discrimination concerns they do so very grudgingly, as that quote suggests.
Seebach: Could you give us a couple of specific examples?
Bernstein: Various courts have held that a conservative religious school may not fire a teacher who gets pregnant out of wedlock, even when the teacher had signed an agreement acknowledging that part of the job requirement was that they adhere to the moral values of the school, which of course would include not engaging in premarital intercourse. The courts have said to fire such a teacher is discrimination based on sex and based on pregnancy, which is illegal.
In workplace harassment law, there have been cases in which companies have been penalized in discrimination lawsuits because one of their employees said something to another employee that would obviously be protected by the First Amendment if they said it outside of the workplace. Even to read a risque magazine during your break time at work, if someone is offended, that’s a valid sexual harassment claim.
Often the mentality of the courts and the lawyers who bring these cases is that because it’s an issue of discrimination the First Amendment rights you certainly would enjoy in another context you cannot enjoy in the workplace.
Seebach: Employers have a pretty general right to regulate what their employees do at work. Is it the problem that the employers are doing this or is the problem that the government is forcing employers to do this?
Bernstein: I believe in pluralism so I believe that different workplaces could have made different kind of rules. So you have a religious workplace or a feminist workplace that may say it’s part of your employment contract that you understand we have very strict rules regarding what we can say and do. And if you don’t like that you could go to a workplace run by a libertarian or by an American Civil Liberties Union person who allows people to say whatever they want. So the answer is that the real problem is that the government is creating a nationwide speech code by mandating that employers crack down on speech and the way they’re doing that is that if you don’t ban speech, someone could sue you and they could use the speech the employees engage in as evidence of your discrimination for creating a hostile environment. Essentially what the hostile environment rules mean is that the government is dictating one standard. Instead of having a pluralistic society where we have different workplaces and different rules, and you can find as an employee the one that fits your comfort level, everyone has to basically conform to the most sensitive people.
Seebach: At one point in your concluding chapter you point out that it would be a good thing if Americans in general had thicker skin.
Bernstein: Yes. You know, my book is largely about the legal issues involved, but clearly there is a cultural problem. In Washington, D.C., a government official used the word “niggardly,” which is not a racial epithet but happens to sound like one, and was forced to resign.
Even though it was explained to everybody that the word is a word of Scandinavian origin without any racial overtones, people say, well, we find it offensive anyway.
Seebach: Another point you made is slightly broader. If people use the compelling‐interest defense to say that preventing discrimination is so important that it justifies infringing on First Amendment rights, surely you could make the same argument about public safety, which is a compelling interest of the state, and ask why doesn’t that trump all of the Bill of Rights that has to do with self‐incrimination and so forth.
Bernstein: In the normal course of things if there’s a conflict between a particular law and the First Amendment, the First Amendment wins out. However there is a narrow exception, when the government has a compelling interest that the statute is trying to fulfill. What the courts started doing in the ‘70s and ‘80s was to say that eradicating discrimination is a compelling interest sufficient to overcome the First Amendment in many contexts. This compelling interest standard really needs to be limited to things that are not just important but so crucial to society that society can’t really function unless the government can regulate. Remember it’s not just discrimination against blacks or women or Jews we’re talking about nowadays, but in many jurisdictions discrimination against overweight people, or people who have piercings, or even if they say they are part of a motorcycle gang, discrimination based on sexual orientation, age, disability, and on and on. And if the government has a compelling interest in eradicating every possible type of discrimination you could think of, then there would be very little left of the First Amendment.
Seebach: You go on to point out that if we did in fact go in that direction, some of the left‐wing professors who have been promoting these views are likely to be among the first victims.
Bernstein: There’s a great irony in current First Amendment scholarship in that it tends to be people on the radical left, radical feminists and so‐called critical race theorists, who are most in favor of granting government power to censor ideas that they disapprove of. And they seem to be under the impression that somehow you’re going to allow the government to regulate hate speech or decide whether the Boy Scouts have gay Scoutmasters but somehow it’s not going to impinge on them.
But once you start making exceptions to the First Amendment it’s a very steep slippery slope and ultimately the restrictions won’t be limited to hate speech, just generally unpopular speech. The irony is that the views of these radical left‐wing professors, whether ultimately you think they’re right or wrong, are clearly very unpopular. So it seems shortsighted that people who are among the most likely to eventually be censored will be those who are calling for weakening the traditional rule that the government cannot censor speech based on dislike of its viewpoint.
Seebach: In Colorado we have a debate over something called “The Academic Bill of Rights,” which at least on its surface is very studiously neutral on whether it’s talking about left or right but there’s no doubt in anybody’s mind that in fact it is intended to make hiring in the humanities and the social sciences more nearly like the American population politically and there’s been a lot of anguish on the part of the current faculties.
Bernstein: Yes, there’s no question in my mind that there’s a great deal of discrimination against identifiable libertarians or conservatives and even in some cases moderates if they don’t happen to toe the particular line in American universities, especially in the humanities though it’s certainly true in law schools and other departments as well. I do believe that there are people on the left who seem to believe that anyone who criticizes them is trying to censor them. To publicize the fact that a university faculty is composed of 95 percent Democrats, that the university is engaging in racial preferences or that the professors are intolerant, to criticize it is not censoring.
Seebach: What does one do about the supply‐side problem in those disciplines? It’s just so difficult to go all the way through college and graduate school and the tenure‐track marathon pretending you’re somebody other than you are. You know it may not be that they are refusing to hire conservative historians, it’s just that very few conservative historians emerge from the gantlet.
Bernstein: Part of the reason so few conservative historians emerge from the process is that they recognize it’s already difficult to get a job as a historian nowadays or to get a good job as a professor in other liberal arts programs. And then you know if you’re a conservative or a libertarian that your odds go down that much more. And so it discourages you further, people just decide it’s not worth putting their eggs in that particular basket.
Even if you could reform the situation, how do you change the cultural landscape so people who are not on the left feel comfortable applying for these jobs? I don’t know. It will be a long‐term process. There was a time when Jews and Catholics weren’t welcome at many universities in the United States and then they changed their policies and now there are plenty of Jews and Catholics in those schools so I think schools made it a point to cease discriminating and to publicly disavow discrimination and to welcome candidates from an ideological perspective that they used to not welcome.
Seebach: At one point in your conclusion you also say that the primary responsibility for altering these things is going to have to lie with state legislators — which is maybe not a real optimistic viewpoint — but what should they see their responsibilities as being?
Bernstein: First of all there should be a presumption of freedom of association. The more anti‐discrimination laws we have and the more groups they apply to, the more restrictions they require, and the more inevitable conflicts there are between these laws and civil liberties.
In Washington, D.C., you’re protected from discrimination based on political affiliation, based on sexual orientation, based on marital status, based on all sorts of different things. In D.C. you’re not allowed to place ads in the local paper saying you want a Republican roommate, or a Democratic roommate, or a Jewish roommate, or anything like that because you’re violating the fair‐housing laws. Or you can’t even say you want a gay roommate if you happen to be gay or otherwise want a gay roommate because that’s expression based on sexual preference. So the legislatures have been letting the courts get away with taking laws that say one thing and then interpreting them in another way. I think the legislatures need to monitor the courts more, and monitor the agencies that enforce these provisions.