What speech businesses / colleges / restaurants may engage in

[DAVID E. BERNSTEIN]

To add my two cents to this discussion, I think there is a distinction
between requiring a person to refrain from acts of discrimination, and
prohibiting that person from expressing his dissent from the law while
obeying it.  Let's posit a landlord who wants to put up a sign in his
building that says "I hate kikes, and would never rent to them
voluntarily but the law says I have to rent to everyone, and, therefore,
I do not discriminate on the basis of religion or ethnicity," and,
indeed, he rents to an obviously Jewish "tester" with no hassles. I
don't see how the landlord can be held civilly liable for his sign
consistent with either the letter or the spirit of the First Amendment,
or liberal principles more generally.  (If you think the sign is too
much, how about a landlord that places an advertisement in the newspaper
to the same effect?)  It's true that no self-respecting Jew (will want
to live there which is why such a sign seems to be illegal under the
Fair Housing Act) , but so?  It also is possible that the sign will lead
the average Jew to suspect that he might not get equal treatment as a
tenant.  But, if that actually happens, that could be prosecuted
civilly.
If the purpose of the civil rights laws is simply to make all members of
minority groups feel good at all times, then we will have inherent First
Amendment problems.




David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
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