GOVERNMENT OF THE JUDGES, BY THE JUDGES, FOR JUDICIAL SUPREMACY

Club Codes (Eugene Volokh, National Review Online, 6/25/2003)

The Franklin Lodge of Elks in New Hampshire faced a controversy about whether women should be allowed to be members. During the controversy, some of the male members made offensive statements about the women who were trying to get in....

Just two weeks ago, the New Hampshire supreme court affirmed the commission's decision, and held that the club was legally liable. And the court didn't just hold that the women were entitled under state law to be admitted to the club — it also upheld the decision to assess damages against the club for its members' "sexual harassment" of the women plaintiffs. Speech that offends fellow club members based on sex, and presumably also on "age, . . . race, creed, color, martial status, physical or mental disability or national origin" or "sexual orientation," is now legally punishable....

The total damages in the Elks case were $40,000, which amounted to over 25 percent of the club's yearly budget....

What about the First Amendment? Neither the commission nor the New Hampshire supreme court even mentioned it. It's as if the term "harassment" has become the universal solvent of constitutional rights....

The statements in the Elks case have no place in polite company. Under the First Amendment, though, the proper way to deal with such offensive speech is through moral suasion and social pressure, not through legal coercion.

It was bad when courts, responding to cases in which thousands of dollars of damage was done, levied punitive damages in the millions or billions, thereby enriching locals at the expense of out-of-staters. It was worse when courts diminished freedom of contract, removing all contractual mechanisms for avoiding such juridical property-takings. It was worse yet when they attacked freedom of association by insisting that courts could remedy race or gender discrimination by forcing private persons to associate with particular persons. Now we see that freedom of speech must also fall, so that judges can make sure no one is offended.

Harassment law is a double-victory for the authoritarian left: it broadens the scope of legal coercion, making government stronger; and it inhibits moral suasion and social pressure by subjecting them to coercive punishment, thereby undermining cultural, moral, and religious norms and making civil society -- government's great competitor -- weaker.

It's curious the path the law has taken. Traditional rights to liberty and property, the basis for cooperation among free adults, have been assaulted. Meanwhile, new rights which undermine traditional institutions and moral norms are promoted. There may be no aspect of traditional liberty or property which is beyond infringement by a juridical process of "law" (due or not) -- but the right to kill unborn babies stands secure.

MORE: Law professor and blogger David Bernstein will soon be out with a book that looks good: You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Law.

Posted by Paul Jaminet at June 25, 2003 3:06 PM