Chapter One

Almost all of the conflicts described in this book between civil liberties and antidiscrimination laws involve laws that impinge on some form of freedom of expression protected by the First Amendment and related constitutional provisions. In the normal course of things, constitutionally protected civil liberties trump conflicting statutory rules. Yet various courts, including at times the Supreme Court, have held that the government has a "compelling interest" in eradicating discrimination sufficient to warrant overriding civil liberties. The courts have not, however, coherently explained why they have granted antidiscrimination laws this extraordinary immunity.

Most Americans consider limiting invidious discrimination against historically disadvantaged groups to be an important governmental interest, an interest that the average citizen might find "compelling" in lay terms. But for an interest to be constitutionally compelling, and therefore capable of trumping civil liberties, the interest should not simply be important. Rather, that interest should be so vital that it would be virtually suicidal for society not to limit civil liberties in order to pursue it. Indeed, many important governmental interests, such as the government's interest in reducing violent crime, are routinely subordinated to the First Amendment because they are not, constitutionally speaking, compelling interests. For example, incendiary speech currently protected by the First Amendment can encourage violent behavior by glorifying violence against women, as much "gangsta rap