David Bernstein | 5.28.2024 2:58 PM

Eugene's post today about the dismissal of a case involving the use of an OK sign supposedly being used as a symbol of white supremacy is a good reminder that most dubious cases based on offensive expression get dismissed. Indeed, one significant critique of my book, You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws is that while I documented many very dubious civil rights claims based on offensive speech, many were dismissed before trial, and many others settled. In the latter situations, critics suggested, the problem may have been less the underlying law and more risk-averse defendants and their insurance companies, who settled meritless cases rather than taking them to trial.

Of course, as I (and Eugene) like to point out, even meritless cases can have significant chilling effects if it costs significant resources to defend and/or settle them.

But in any event, there is one incident that stands out in my memory as an especially egregious case that actually not only made it past a motion to dismiss and summary judgment,........

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