Redefining and eroding civil liberties over the past forty years has had as adverse an effect on the nation as most anything you can imagine. This subject was examined by David Bernstein in his book, You Can't Say That! From his lawyerly perspective, it presents frightening evidence and conclusions. The recent Supreme Court decision to limit political speech in a period immediately before elections and do so in the name of campaign reform is another recent infringement on the First Amendment. Subtle and incremental changes in our structure of liberties threaten America, and the most egregious examples are borne by businesses.
Here, civil liberties are rights protected by the Constitution's First Amendment, especially free speech and association. The 1964 Civil Rights Act did not materially infringe these or any liberties, but set the course for dismantling a nationally entrenched, quasi-caste system that rather quickly dissolved. But the rise of anti-discrimination laws that followed shifted the balance between competing rights within the fabric of constitutional guarantees to interpretations and unreasonably zealous enforcement of new laws that now trump basic civil liberties. Outcomes are still being resolved.
All levels of American courts have held that eradicating discrimination is a "compelling interest" of government, never explaining why anti-discrimination laws have different status from other laws or why courts are authorized to abstract "egalitarian values" from any Amendment and do so based on shifting, intellectual fashion. Citizens mostly agree with the idea that government cannot be trusted to establish official orthodoxy on any issue, even when private speech is wrongheaded, because government has a natural tendency to suppress speech antithetical to its interests. And this is exactly what has occurred in anti-discrimination law and its policing.
For the public and private sector, the 1986 Supreme Court said that a hostile work environment exists when "the workplace is permeated with discriminatory intimidation, ridicule, and insult... that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Result of this definition are that employers have no guidance, precedents, and no pervasive liability standards, and the evolving law and regulation has varied between governments at all levels. Further, government encourages complaints regarding racial, ethnic, and sexual harassment, especially in cases where defendants can be intimidated and serve as community examples. There are signs that the public is growing impatient with the corrosive effects of hostile work environment laws, but from the view of the businesses affected, expensive settlements are the normal route instead of prosecutions that dismiss frivolous suits and exact penalty for them. The Bernstein book cites examples that are outrageous beyond the realm of common sense or decency and presents conundrums such as these about a hostile work place and hiring practices.
- The law penalizes a view verbally expressed that "women are incapable of being good engineers" but not one that "women make excellent engineers."
- When an employer seeks to hire "best qualified employees," it discriminates against everyone else who did or did not seek that employment.
- When a Polish immigrant-owned firm hired workers only through word-of-mouth referrals, the EEOC forced the company to run paid want ads and pay "victims" not hired a total of $380,000. (Some "victims" were in jail during relevant times, ignored by EEOC. The employer was required to spent $400,000 additional to defend itself; upon bankruptcy, fifty jobs were lost.)
It is obvious that punishing expressions because they could create offense is but one beginning of totalitarian rule. Following are some conclusions on what Americans must do to return sanity and decorum to what is a shrinking horizon on our lives of liberty.
- It is better the public grow a thicker skin, and citizens are taught civil habits at home.
- It is necessary that penalties be defined and exacted for frivolous suits by plaintiffs and government law enforcers.
- The growth of federally enforced censorship and suppression of civil liberties must be countered by the legislative branches of government and not in courts influenced by political winds. The public mood for tolerance must be reflected by representatives of the people.
- Court should be forced by legislatures to assure the same status for anti-discrimination law as for all other laws, especially Amendment rights of civil liberties.
- The private sector, especially business and industry, where most such cases originate, must take the lead to counter this manifestation of bad government.
A society that undercuts civil liberties in pursuit of equality will achieve neither.