A Black family enters a coffee shop in a small Texas town. A white man places a card on their table. The card reads, “You have just been paid a visit by the Ku Klux Klan.” The family stands and leaves.1
A law student goes to her dorm and finds an anonymous message posted on the door; a caricature image of her race, with a red line slashed through it.2
A Japanese-American professor arrives in an Australian city and finds a proliferation of posters stating “Asians Out or Racial War” displayed on telephone poles. She uses her best, educated inflection in speaking with clerks and cab drivers and decides not to complain when she is overcharged.3
These unheralded stories share company with the more notorious provocation of swastikas at Skokie, Illinois, and burning crosses on suburban lawns. The threat of hate groups like the Ku Klux Klan and the neo-Nazi skinheads goes beyond their repeated acts of illegal violence. Their presence and the active dissemination of racist propaganda means that citizens are denied personal security and liberty as they go about their daily lives. Richard Delgado recognizes the harm of racist speech in Chapter 4 of this book, suggesting a tort remedy for injury from racist words. Taking inspiration from Delgado’s position, I make the further suggestion that formal criminal and administrative sanction—public as opposed to private prosecution—is also an appropriate response to racist speech.
Chapter 2 moves between two stories. The first is the victim’s story of the effects of racist hate messages. The second is the first amendment story of free speech. The intent is to respect and value both stories. This bipolar discourse uses as its method what many outsider intellectuals do in silence: it mediates between different ways of knowing to determine what is true and what is just.
In calling for legal sanctions for racist speech, this chapter rejects an absolutist first amendment position. It calls for movement of the societal response to racist speech from the private to the public realm. The choice of public sanction, enforced by the state, is a significant one. The kinds of injuries historically left to private individuals to absorb and resist through private means are no accident. The places where the law does not go to redress harm have tended to be the places where women, children, people of color, and poor people live. This absence of law is itself another story with a message, perhaps unintended, about the relative value of different human lives. A legal response to racist speech is a statement that victims of racism are valued members of our polity.
The call for a formal, legal-structural response to racist speech goes against the long-standing and healthy American distrust of government power. It goes against an American tradition of tolerance that is precious in the sense of being both valuable and fragile.
Lee Bollinger, dean of the University of Michigan Law School, has concluded that a primary reason for the legal protection of hate speech is to reinforce our commitment to tolerance as a value.4 If we can shore up our commitment to free speech in the hard and public cases, like Skokie,5 perhaps we will internalize the need for tolerance and spare ourselves from regrettable error in times of stress. Given the real historical costs of state intolerance of minority views, the first amendment purpose Bollinger identifies is not one lightly set aside.
Recognizing both the real harm of racist speech and the need to strengthen our dangerously fickle collective commitment to freedom of discourse, I intend to feel and to work within the first amendment tension armed with stories from human lives. This chapter suggests that outsider jurisprudence—jurisprudence derived from considering stories from the bottom—will help resolve the seemingly irresolvable conflicts of value and doctrine that characterize liberal thought. I conclude that an absolutist first amendment response to hate speech has the effect of perpetuating racism: Tolerance of hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay.
If we cannot understand this pain that women, that Indian women, that Black women, that Hawaiian women, that Chicano women go through, we are never going to understand anything. All the mega-theory will not get us anywhere because without that understanding, mega-theory does not mean anything, does not reflect social reality, does not reflect people’s experience.
—Patricia Monture6
There is an outsider’s jurisprudence growing and thriving alongside mainstream jurisprudence in American law schools. The new feminist jurisprudence is a lively example of this. A related, and less celebrated, outsider jurisprudence is that belonging to people of color.
Critical race theorists tend to use a methodology grounded in the particulars of their social reality and experience. This method is consciously both historical and revisionist, attempting to know history from the bottom. From the fear and namelessness of the slave, from the broken treaties of the indigenous Americans, the desire to know history from the bottom has forced these scholars to sources often ignored: journals, poems, oral histories, and stories from their own experiences of life in a hierarchically arranged world.
This methodology, which rejects presentist, androcentric, Eurocentric, and falsely universalist descriptions of social phenomena, offers a unique description of law. The description is realist, but not necessarily nihilist. It accepts the standard teaching of street wisdom: Law is essentially political. It accepts as well the pragmatic use of law as a tool for social change and the aspirational core of law as the human dream of peaceable existence. If these views seem contradictory, that is consistent with another component of jurisprudence of color: It is jurisprudence recognizing, struggling within, and utilizing contradiction, dualism, and ambiguity.
The senior critical race theorist Derrick Bell’s book And We Are Not Saved7 is an example of this methodology Bell describes a world infused with racism. This description ties law to racism, showing that law is both a product and a promoter of racism. Like the feminists who have shown that patriarchy has had its own march through history, related to but distinct from the march of class struggle, scholars of color have shown how racism is a separate, distinct, and central phenomenon in American life.
The hopeful part of the description offered by theorists such as Bell is the occasional recognition of the vulnerability of racist structures. The few who have managed to subject the many to conditions of degradation have used a variety of devices, from genocide to liberal doublespeak, that reveal the deep contradictions and instability inherent in any organization of social life dependent upon subordination. The sorrow songs of the critical race theorists are thus tempered by an underlying descriptive message of the inevitability of humane social progress.
This progress can lead to a just world free of existing conditions of domination. The prescriptive message of outsider jurisprudence offers signposts to guide our way there: the focus on effects. The need to attack the effects of racism and patriarchy in order to attack the deep, hidden, tangled roots characterizes outsider thinking about law. Outsiders thus search for what Anne Scales has called the rachet—legal tools that have progressive effect, defying the habit of neutral principles to entrench existing power. Outsider scholars have derived rachetlike measures to eliminate effects of oppression, including affirmative action, reparations, desegregation, and the criminalization of racist and misogynist propaganda. Such measures are best implemented through formal rules, formal procedures, and formal concepts of rights, for informality and oppression are frequent fellow travelers. Although cognizant of the limits of law reform, outsider scholars have emphasized the instrumental uses of formal legal rules to achieve substantive justice.
Using the descriptive and prescriptive messages of the emerging outsider jurisprudence to confront the problem of racist hate messages provides new insights into the long-standing neutral-principle dilemma of liberal jurisprudence. The following section will show how the victim’s story illuminates particular values and suggests particular solutions to the problem of racist hate messages.
The attempt to split bias from violence has been this society’s most enduring rationalization.
—Patricia Williams8
In writing this chapter I am forced to ask why the world looks so different to me from the way it looks to many of the civil libertarians whom I consider my allies. Classical thought labels ad hominem analysis a logical fallacy. The identity of the person doing the analysis often seems to make the difference, however, in responding to racist speech. In advocating legal restriction of hate speech, I have found my most sympathetic audience in people who identify with target groups, whereas I have often encountered incredulity, skepticism, and even hostility from others.
This split in reaction is also evident in case studies of hate speech. The typical reaction of target-group members to an incident of racist propaganda is alarm and immediate calls for redress. The typical reaction of non-members is to consider the incidents isolated pranks, the product of sick but harmless minds. This is in part a defensive reaction: a refusal to believe that real people, people just like us, are racists. This disassociation leads logically to the claim that there is no institutional or state responsibility to respond to the incident. It is not the kind of real and pervasive threat that requires the state’s power to quell.
Here are some true “just kidding” stories:
An African-American worker found himself repeatedly subjected to racist speech when he came to work. A noose was hanging one day in his work area; a dead animal and other threatening objects were placed in his locker. “KKK” references were directed at him, as well as other racist slurs and death threats. His employer discouraged him from calling the police, attributing the incidents to “horseplay.”9
In San Francisco, a swastika was placed near the desks of Asian-American and African-American inspectors in the newly integrated fire department. The official explanation for the presence of the swastika at the fire department was that it was presented several years earlier as a “joke” gift to the battalion chief and that it was unclear why or how it ended up at the work stations of the minority employees.10
In Jackson, Mississippi, African-American employees of Frito-Lay found their cars sprayed with “K K K” inscriptions and were the targets of racist notes and threats. Local African Americans and Jews were concerned, but officials said the incidents were attributable to children.11
An African-American FBI agent was subject to a campaign of racist taunts by white coworkers. A picture of an ape was pasted over his child’s photograph, and racial slurs were used. Such incidents were called a healthy” by his supervisor.12
In Seattle, a middle-management Japanese American was disturbed by his employer’s new anti-Japanese campaign. As the employer’s use of slurs and racist slogans in the workplace increased, so did the employee’s discomfort. His objections were viewed as overly sensitive and uncooperative. He finally quit his job, and he was denied unemployment insurance benefits because his departure was “without cause.”13
In Contra Costa County, California, Ku Klux Klan symbols were used to turn families looking for homes away from certain neighborhoods. The local sheriff said there was “nothing … to indicate this is Klan activity.”14
Similarly, a Hmong family in Eureka, California, was twice victimized by four-foot-high crosses burning on their lawn. Local police dismissed this as “a prank.”15
Why might anti-Japanese racial slurs mean something different to Asian and white managers? Here is a story of mine:
As a young child I was told never to let anyone call me a J—p. My parents, normally peaceable and indulgent folk, told me this in the tone reserved for dead-serious warnings. Don’t accept rides from strangers. Don’t play with matches. Don’t let anyone call you that name. In their tone they transmitted a message of danger, that the word was a dangerous one, tied to violence.
Just as I grew up to learn the facts about the unspoken danger my parents saw in the stranger in the car, I learned how they connected the violence of California lynch mobs and Hiroshima atom bombs to racist slurs against Japanese Americans.
This early training in vigilance was reinforced by what I later learned about violence and Asian Americans: that people with features like mine are regular victims of violence tied to a wave of anti-Asian propaganda that stretches from Boston to San Francisco, from Galveston to Detroit.
The white managers who considered Mr. O. (the Japanese-American manager) an overly sensitive troublemaker and the unemployment board that determined there was no good cause for him to quit his job came from a different experience. They probably never heard of Vincent Chin, a twenty-seven-year-old Chinese American beaten to death by thugs wielding baseball bats who yelled, “It’s because of you fucking J—ps that we’re out of work!” They do not know about the Southeast-Asian-American children spat upon and taunted as they walk home from school in Boston; about the vigilante patrols harassing Vietnamese shrimpers in Texas. Nor do they know that the violence in all these cases is preceded by propaganda similar to that used in Mr. O.’s workplace: that those [racist slur for Asian groups] are taking over “our” country.
Stories of anti-Asian violence are regularly reported in the Asian-American press; just as stories of synagogue vandalism are regularly reported in the Jewish-American press; and anti-African-American violence, including the all-too-common phenomenon of “move-in” violence, is regularly reported in the African-American press. Members of target-group communities tend to know that racial violence and harassment are widespread, common, and life threatening; that, as one Georgia observer put it, “The youngsters who paint a swastika today may throw a bomb tomorrow.”16
The mainstream press often ignores these stories, giving rise to the view of racist and anti-Semitic incidents as random and isolated and the corollary that isolated incidents are inconsequential. For informed members of the victim communities, however, it is logical to link together several thousand real-life stories into one tale of caution.
Although this chapter focuses on the phenomenology of racism, it includes a discussion of the closely related phenomenon of anti-Semitism. The same groups, using many of the same techniques and operating from many of the same motivations and dysfunctions, typically produce racist and anti-Semitic speech. The serious problems of violent pornography and antigay and antilesbian hate speech are not the focus here. Although I believe these forms of hate speech require public restriction, these forms also require a separate analysis because of the complex and violent nature of gender subordination and the different way in which sex operates as a locus of oppression. The deadly violence that accompanies the persistent verbal degradation of those subordinated because of gender or sexuality explodes the notion that there are clear lines between words and deeds. In considering the emerging theory that patriarchy and heterosexism are cornerstones of violence in our society, I note that in researching hundreds of incidents of racist violence in preparation for this chapter, I found in virtually every case the perpetrators were men. Thus although the focus of this chapter is racist speech, other forms of subordination are always, uneasily close at hand.
The claim that a legal response to racist speech is required stems from a recognition of the structural reality of racism in the United States. Racism, as used here, comprises the ideology of racial supremacy and the mechanisms for keeping selected victim groups in subordinated positions. The implements of racism include:
In addition to physical violence, there is what the legal scholar Robert Cover called the violence of the word.17 Racist hate messages, threats, slurs, epithets, and disparagement all hit the gut of those in the target group. The spoken message of hatred and inferiority is conveyed on the street, in school yards, in popular culture, and in the propaganda of hate widely distributed in this country. Our college campuses have seen an epidemic of racist incidents since the early 1980s. The hate speech flaring up in our midst includes insulting nouns for racial groups, degrading caricatures, threats of violence, and literature portraying Jews and people of color as animal-like and requiring extermination.
Although violence and hate propaganda are officially renounced by elites, other forms of racism are not. Jim Crow, which persists today in the form of private clubs and de facto segregated schools and neighborhoods, is seen as less offensive than cross burnings. Covert disparate treatment and sanitized racist comments are commonplace and socially acceptable in many settings. The various implements of racism find their way into the hands of different dominant-group members. Lower- and middle-class white men might use violence against people of color, whereas upper-class whites might resort to private clubs or righteous indignation against “diversity” and “reverse discrimination.” Institutions—government bodies, schools, corporations—also perpetuate racism through a variety of overt and covert means.
From the victim’s perspective, all of these implements inflict wounds, wounds that are neither random nor isolated. Gutter racism, parlor racism, corporate racism, and government racism work in coordination, reinforcing existing conditions of domination. Less egregious forms of racism degenerate easily into more serious forms.
The Japanese-American executive who resigns in protest when his employer starts publishing anti-Japanese slogans to improve sales knows that there is a connection between racist words and racist deeds. The racially motivated beating death of Vincent Chin by unemployed white auto workers in Detroit, during a time of widespread anti-Asian propaganda in the auto industry, was no accident. Nor was the murder of the Davis, California, high school student Thong Hy Huynh, after months of anti-Asian racial slurs.
Violence is a necessary and inevitable part of the structure of racism. It is the final solution, as fascists know, barely held at bay while the tactical weapons of segregation, disparagement, and hate propaganda do their work. The historical connection of all the tools of racism is a record against which to consider a legal response to racist speech.
everywhere the crosses are burning,
sharp-shooting goose-steppers around every corner,
there are snipers in the schools …
(I know you don’t believe this.
You think this is nothing
but faddish exaggeration. But they
are not shooting at you.)
—Lorna Dee Cervantes18
Racist hate messages are rapidly increasing and are widely distributed in this country through a variety of low and high technologies, including anonymous phone calls and letters, posters, books, magazines and pamphlets, cable television, recorded phone messages, computer networks, bulk mail, graffiti, and leafleting. The negative effects of hate messages are real and immediate for the victims. Victims of vicious hate propaganda experience physiological symptoms and emotional distress ranging from fear in the gut to rapid pulse rate and difficulty in breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis, and suicide. Patricia Williams has called the blow of racist messages “spirit murder” in recognition of the psychic destruction victims experience.19
Victims are restricted in their personal freedom. To avoid receiving hate messages, victims have to quit jobs, forgo education, leave their homes, avoid certain public places, curtail their own exercise of speech rights, and otherwise modify their behavior and demeanor. The recipient of hate messages struggles with inner turmoil. One subconscious response is to reject one’s own identity as a victim-group member. As writers portraying the African-American experience have noted, the price of disassociating from one’s own race is often sanity itself.
As much as one may try to resist a piece of hate propaganda, the effect on one’s self-esteem and sense of personal security is devastating. To be hated, despised, and alone is the ultimate fear of all human beings. However irrational racist speech may be, it hits right at the emotional place where we feel the most pain. The aloneness comes not only from the hate message itself, but also from the government response of tolerance. When hundreds of police officers are called out to protect racist marchers, when the courts refuse redress for racial insult, and when racist attacks are officially dismissed as pranks, the victim becomes a stateless person. Target-group members must either identify with a community that promotes racist speech or admit that the community does not include them.
The effect on non-target-group members is also of constitutional dimensions. Associational and other liberty interests of whites are curtailed in an atmosphere rife with racial hatred. Hate messages, threats, and violence are often the price for whites of hiring, marrying, adopting, socializing with, and even jogging with people of color. In addition, the process of disassociation can affect the mental health of non-targets. Dominant-group members who rightfully, and often angrily, object to hate propaganda share a guilty secret: their relief that they are not themselves the target of the racist attack. Even as they reject the Ku Klux Klan, they may feel ambivalent relief that they are not African-American, Asian, or Jewish. Thus they are drawn into unwilling complicity with the Klan, spared from being the feared and degraded thing.
Just as when we confront human tragedy—a natural disaster, a plane crash—we feel the blessing of the fortunate that distances us from the victims, the presence of racist hate propaganda distances right-thinking dominant-group members from the victims, making it harder to achieve a sense of common humanity. Similarly, racist propaganda forces victim-group members to view all dominant-group members with suspicion. It forces well-meaning dominant-group members to use kid-glove care in dealing with outsiders. This is one reason why social relations across racial lines are so rare in the United States.
Research in the psychology of racism suggests a related effect of racist hate propaganda: At some level, no matter how much both victims and well-meaning dominant-group members resist it, racial inferiority is planted in our minds as an idea that may hold some truth.20 The idea is improbable and abhorrent, but because it is presented repeatedly, it is there before us. “Those people” are lazy, dirty, sexualized, money grubbing, dishonest, inscrutable, we are told. We reject the idea, but the next time we sit next to one of “those people,” the dirt message, the sex message, is triggered. We stifle it, reject it as wrong, but it is there, interfering with our perception and interaction with the person next to us. In conducting research for this chapter, I read an unhealthy number of racist statements. A few weeks after reading about a “dot busters” campaign against immigrants from India, I passed by an Indian woman on my campus. Instead of thinking, “What a beautiful sari,” the first thought that came into my mind was “dot busters.” Only after setting aside the hate message could I move on to my own thoughts. The propaganda I read had taken me one step back from casually treating a fellow brown-skinned human being as that, rather than as someone distanced from myself. For the victim, similarly, the angry rejection of the message of inferiority is coupled with absorption of the message. When a dominant-group member responds favorably, there is a moment of relief—the victims of hate messages do not always believe in their insides that they deserve decent treatment. This obsequious moment is degrading and dispiriting when the self-aware victim acknowledges it.
Psychologists and sociologists have done much to document the effects of racist messages on both victims and dominant-group members.21 Writers of color have given us graphic portrayals of what life is like for victims of racist propaganda.22 From the victim’s perspective, racist hate messages cause real damage.
If the harm of racist hate messages is significant, and the truth value marginal, the doctrinal space for regulation of such speech becomes a possibility. An emerging international standard seizes this possibility.
The international community has chosen to outlaw racist hate propaganda. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination states:
State Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia:
a) Shall declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organization or activities as an offence punishable by law; [and]
c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.23
Under this treaty, nation-states are required to criminalize racist hate messages. Prohibiting dissemination of ideas of racial superiority or hatred is not easily reconciled with U.S. concepts of free speech. The convention recognizes this conflict. Article 4 acknowledges the need for “due regard” for rights protected by the Universal Declaration of Human Rights and by Article 5 of the convention—including the rights of freedom of speech, association, and conscience.
Recognizing these conflicting values and nonetheless concluding that the right to freedom from racist hate propaganda deserves affirmative recognition represents the evolving international view. A U.S. lawyer, trained in a tradition of liberal thought, would read Article 4 and conclude immediately that it is unworkable. Acts of violence and perhaps imminent incitement to violence are properly prohibited, but the control of ideas is doomed to failure. This position was voiced continually in the debates preceding adoption of the convention,24 leading to the view that Article 4 is both controversial and troublesome.
To those who struggled through early international attempts to deal with racist propaganda, the competing values carried a sense of urgency. The imagery of both book burnings and swastikas was clear in their minds. Hitler had banned ideas. He had also murdered six million Jews in the culmination of a campaign that had as a major theme the idea of racial superiority. Although the causes of fascism are complex, the knowledge that anti-Semitic hate propaganda and the rise of Nazism were clearly connected guided development of the emerging international law on incitement to racial hatred.
In 1959 and 1960, the world faced a resurgence of anti-Semitic incidents in several countries. The movement to implement the human rights goals of the UN Charter and the Universal Declaration of Human Rights gained momentum as member states sought effective means of eliminating discrimination.
Despite consensus on the basic goal of elimination of discrimination, there was division on the question of incitement to hatred. The Sub-Commission on the Prevention of Discrimination and Protection of Minorities began work in 1964, using three separate drafts prepared by representatives of the United States, the United Kingdom, and the USSR and Poland. Thus the sub-commission had the benefit of vastly different ideological views as well as a basic consensus on the necessity of combating discrimination.
In addressing incitement, the U.S. draft would have outlawed direct incitement to acts of racist violence.25 It would have disallowed government involvement in chartering or supporting racist hate groups. This was consistent with U.S. constitutional principles. The USSR/Poland draft would have banned all “propaganda” of “superiority” and would have criminalized participation in any organization that discriminated or advocated discrimination.26 In obvious contrast to the U.S. view, the socialist nations proposed direct action against hate messages, expressing little concern for an individualistic, civil libertarian conception of free speech.
Discussion by the Commission on Human Rights centered around the problems of proving when propaganda was likely to cause violence, and whether violence was the only end to avoid.27 The problem of freedom of association and the banning of hate organizations was also discussed. The final decision, by a vote of sixteen in favor and five abstentions, was to adopt paragraph 4(b) as it is now written, banning propaganda activity that promoted discrimination and criminalizing participation in organizations promoting discrimination. The weaker U.S. position was thus rejected by the commission.
The proposed convention next went to the Third Committee of the General Assembly in 1965. Again the issues of the necessity of ties to violence and of recognition of free speech rights were raised. The United States proposed explicit recognition of the right of free speech within the text.28 The committee chose instead to refer generally to “due regard” of such rights. Acts of violence were prohibited, but the final form of the proposed article went further. It also outlawed the mere dissemination of racist ideas, without requiring proof of incitement. An atmosphere of hatred, it was argued by the Polish representative, would inevitably lead to discrimination.
When the draft finally reached the General Assembly, Argentina, Colombia, Ecuador, Panama, and Peru—countries relatively friendly to the United States—proposed deletion of the dissemination-of-ideas language. This amendment was rejected—fifty-four against, twenty-five in favor, and twenty-three abstaining—but the limited consensus on this point indicates the controversial nature of the article.29 Notably, in other areas of international human rights consensus building, serious ideological controversy dooms a proposal to failure. Language banning anti-Semitism, for example, died a political death because of Arab and Soviet concerns that the charge of anti-Semitism would be used as a political weapon against them.30 Article 4 is unique in that a clearly controversial proposition survived in the final convention. The survival of Article 4, in spite of the controversy, indicates the overriding strength of the basic idea that promotion of racism is a serious threat to the protection of human rights.
The General Assembly debates on Article 4 focused on free speech. Although the issue was never clearly resolved, it is significant that no country, not even the United States, was willing to abandon the basic premise of Article 4. The article declares that parties “condemn all propaganda … based on ideas or theories of superiority … or which attemptfs] to justify or promote racial hatred and discrimination in any form.”31 Similarly, the preamble to the convention states explicitly that “any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination.”32 The community of nations has thus made a commitment, with U.S. support, to eliminate racism. It has recognized that racist hate propaganda is illegitimate and is properly subject to control under the international law of human rights. The debate, then, centers around the limits of such control, not around the basic decision to control racism.
The convention, including Article 4, was unanimously adopted by the General Assembly on December 21, 1965.33 Under UN treaty procedure, it entered into force on January 4, 1969, and gathered an increasing number of state signatures over the years. The United States was an early signatory to the convention, consistent with its significant role in drafting and promoting the convention from the earliest stages. In 1978 President Carter submitted the convention to the Senate for ratification. The Senate has taken no significant steps toward ratification. Signature does not bind the United States to the treaty until the signing is ratified. Under the Vienna Convention on the Law of Treaties, a state’s signature does, however, bind it to refrain from defeating the object of the treaty.34
The procedure for signature and ratification allows reluctant states to reserve the right to reject antipropaganda laws that would interfere with the right of free speech. Such states apparently felt that the due regard clause of Article 4 was not explicit enough to reserve this right. Some commentators suggest that the United States should not ratify the convention without explicit reservation to Article 4, because the due regard clause is not sufficiently protective of free speech.35 In signing the convention, the United States made a relatively short reservation, stating:
The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America.36
This limited reservation indicates the U.S. position of basic support for the convention. Such support is consistent with U.S. ideological commitment to equality and with the need to maintain international prestige. The reservation and the failure to ratify the convention separates the United States from an evolving world standard. As discussed below, this position represents an extreme commitment to the first amendment at the expense of antidiscrimination goals.
The convention is not the only expression of the emerging international view. The need to limit racist hate messages is implicit in basic human rights documents such as the UN Charter and the Universal Declaration of Human Rights. Both documents recognize the primacy of the right to equality and freedom from racism. Other human rights treaties, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms37 and the American Declaration of the Rights and Duties of Man,38 also recognize this primacy. The United States is also a party to an international convention on genocide that forbids, inter alia, incitement to genocide.39 Finally, the existing domestic law of several nations—including states that accept the Western notion of freedom of expression—has outlawed certain forms of racist speech.
The United Kingdom, for example, under the Race Relations Act, has criminalized incitement to discrimination and incitement to racial hatred.40 The act criminalizes the publication or distribution of “threatening, abusive, or insulting” written matter or use of such language in a public place. The United Kingdom standard originally differed from the international standard in that it required proof of intent to incite to hatred. The intent requirement was later dropped.41 The act is consistent with the international standard in that it recognizes that avoiding the spread of hatred is a legitimate object of the law and that some forms of racist expression are properly criminalized. The legislative history of the act suggests that the drafters were concerned with the spread of racist violence. Imminent violence, however, was not the only object of the act. The act recognized the inevitable connection between the general spread of race hatred and the spread of violence. Although commentators have suggested that the act is ineffective and capable of misuse,42 the existence of the act supports the growing international movement toward outlawing racist hate propaganda.
Canada has similarly adopted a national statute governing hate propaganda. Sections 318 and 319 of the Canadian Criminal Code43 outlaw advocacy of genocide, defined as, inter alia, an act designed to kill a member of an identifiable group. Also outlawed are communications inciting hatred against any identifiable group where a breach of peace is likely to follow. The law further prohibits the expression of ideas inciting hatred if such expression is tied to a probable threat to order.
The new Canadian Bill of Rights incorporates strong protections for freedom of speech and association.44 Conflict between the new Bill of Rights and the antihate legislation has not prevented actions to limit hate speech.
Australia and New Zealand also have laws restricting racist speech,45 leaving the United States alone among the major common law jurisdictions in its complete tolerance of such speech. What the laws of these other countries and the UN convention have in common is that they specify a particularly egregious form of expression for criminalization. All expression concerning differences between races is not banned. The definitive elements are discrimination, connection to violence, and messages of inferiority, hatred, or persecution. Thus the entire spectrum of what could be called racist speech is not prohibited. A belief in intellectual differences between the races, for instance, is not subject to sanctions unless it is coupled with an element of hatred or persecution. What the emerging global standard prohibits is the kind of expression that most interferes with the rights of subordinated-group members to participate equally in society and maintain their basic sense of security and worth as human beings.
The failure of U.S. law to accept this emerging standard reflects a unique first amendment jurisprudence. This jurisprudence is so entrenched in U.S. law that it at first seems irreconcilable with the values given primacy in Article 4, such as the values of equality and full participation. To discuss the significance of this contradiction, it is necessary to consider the U.S. position of tolerance.
Many foreign lawyers, including those from countries close to the United States in ideology, are perplexed by the uniquely American approach of protecting racist hate organizations. American citizens themselves express frustration when they find that the Klan and the Nazis are free to march in public places, with publicly financed police protection. This section will state the U.S. position and attempt to make its strongest case. This is a starting point for exploring the dominant story of racism in American social life and for showing that the U.S. position is neither inevitable nor sound as a matter of democratic theory, constitutional doctrine, or value.
By the U.S. position, I refer to the position that would require reservation to Article 4 and forbearance from other efforts to control racist speech on the ground that restriction of racist hate propaganda and hate organizations is incompatible with the first amendment. As there is no single authoritative assertion of this position, here I address a composite of mainstream first amendment thinking.
Getting a clear statement of the U.S. position is not easy. First amendment doctrine is notably confused, but a reading of the cases reveals the following core ideas. Freedom of expression, the argument goes, is the most fundamental right protected under the Constitution. Democratic, representative government presumes that people are free to think and say whatever they might, even the unthinkable. They can advocate the end of democracy. We risk the chance that they will prevail because to give government the power to control expression is an even greater threat. Power is jealous, and the temptation to stifle legitimate opposition is too great. Thus under our system, there is “no such thing as a false idea.”46 All ideas deserve a public forum, and the way to combat antidemocratic ideas is through counter expression. When all ideas are voiced freely, we have the greatest chance of obtaining the right results.
We have no way of knowing what the right results are in advance. Ideas that were once accepted as truth we now reject. Because our ideas about what we want as a society are changing and emergent, we cannot say that certain ideas are unacceptable. New ideas often meet opposition, and we have seen new ideas, including major advances in civil rights, eventually become the majority position. We have no basis for distinguishing good from bad ideas, and the only logical choice is to protect all ideas.
If the state feels threatened by certain ideas, it is not without recourse. It can use education and counterspeech to combat those ideas. It can control conduct or action arising from those ideas. Thus although the state cannot outlaw a militaristic political party, it can control the stockpiling of weaponry and punish any acts of violence. Incitement to imminent violence is a related and acceptable point of intervention. Such control is admittedly less effective than direct and preventive repression, but we have made the commitment to a free society, and we will not become unfree even in self-defense. To do otherwise abandons the basic foundation of democracy, rendering nonsensical any claim to necessity. Furthermore, if we accept that ours is a racist society, that is all the more reason to give primacy to the first amendment. The best means to combat racist oppression is the right of protest.
Accepting this extreme commitment to the first amendment is neither easy nor natural. It is a concept one must learn, and it barely survives the hard cases. There is much speech that comes close to action. Conspiratorial speech, inciting speech, fraudulent speech, obscene speech, and defamatory speech are examples of words that seem to emerge from human mouths as more than ideas. Examples might include a merchant’s lies about the efficacy of a product, a gang leader’s order to murder an enemy, a sexual description broadcast to an audience of children, and threats of physical harm. The U.S. doctrine recognizes a few limited categories of speech that take on qualities beyond expression. These areas are doctrinally distinct, and our commitment to the first amendment value requires the most vigilant scrutiny to avoid suppression of ideas under the guise of controlling conduct.
What the U.S. position means in the area of race is that expressions of the ideas of racial inferiority or racial hatred are protected. Anyone who wants to say that African Americans and Jews are inferior and deserving of persecution is entitled to. However loathsome this idea may be, it is still political speech. The law becomes strong at its edges. If we can hold fast to freedom when it is most difficult to do so, we will avoid making the easy and disastrous mistakes.
The strongest argument against criminalization of racist speech is that it is content-based. It puts the state in the censorship business, with no means of assuring that the censor’s hand will go lightly over “good” as opposed to “bad” speech. Critics cite the Canadian experience of words of protest and satire mistakenly challenged using race-hatred laws or the British experience in which censorship of racism is accompanied by censorship of political dissidents. If we outlaw the Ku Klux Klan as an organization repugnant to democratic values, then we can outlaw the Communist party for the same reasons. Admitting one exception will lead to another, and yet another, until those in power are free to stifle opposition in the name of protecting democratic ideals.
A related and less persuasive argument is the “fresh-air” position. This position suggests that the most effective way to control the Klan is to allow it to broadcast its ideas. When people are exposed to the hatred propagated by the Klan, they will reject the Klan and organize against it. Suppressing the Klan will only force it to choose more violent and clandestine means of obtaining its goals.
A corollary to the U.S. position of protection of racist expression is that the government must take certain affirmative steps to preserve that right. The state must make public facilities available on a nondiscriminatory basis to individuals and groups wishing to express their race hatred.47 It must provide police protection to preserve order and protect speakers who are threatened by counterdemonstrators.48 Because groups like the Klan typically draw angry opposition when they parade in public streets, these groups have become entitled to publicly financed police escorts. Without this, the right of free speech is meaningless. Angry and intolerant majorities could prevent unpopular minorities from using public facilities, rendering the right of free speech illusory.
The strong first amendment position outlined above represents certain values that are part of the American structure of government and commitment to political and civil rights. The U.S. position may be extreme, but it responds to our history. It recalls the times when our commitment to freedom was tested—the Sedition Act, the McCarthy era, the movement for racial justice, the riots and protests of the Vietnam age. Our commitment to the position has been neither steadfast nor universal. Judges have sometimes failed to understand it, resulting in loose doctrinal ends. The basic principle, however, has survived, and the thrust of the cases and commentary supports first amendment primacy.
The purpose of stating the strongest possible case for the U.S. position is not merely to set the groundwork for an attack. The basic values of freedom of expression, although not provable in any natural law sense, are accepted by the international community. That the American commitment to the ideology of freedom has contributed to social progress and the limitation of repression is a part of our history. The questions presented here are whether the values of the first amendment are in irresolvable conflict with the international movement toward elimination of racist hate propaganda and whether any attempt to move U.S. law toward the international standard is worthwhile.
As a starting point in understanding what is really going on in the law of freedom of expression, it is helpful to note where the edges are. There are several forms of speech that are not entitled to the same protection that existing doctrine would afford racist propaganda.
In the area of commerce and industrial relations, expression is frequently limited. False statements about products, suggestions that prices be fixed, opinions about the value of stock, and proemployer propaganda during union elections are all examples of expressions of ideas that are limited by the law. An instrumental analysis might be that smooth operation of the entities of commerce and the need for a stable setting for the growth of capital have overcome the commitment to civil liberties in these instances. A doctrinal first amendment explanation is that those are examples of hard cases, representing more than the expression of an idea. Some statements are noncommunicative acts, subject to legal restraint. Alternatively, some would argue that many existing exceptions are simply a mistake.
Speech and associational rights are limited in certain professional contexts. Government employees are forbidden to engage in political activity to avoid problems of undue influence. Those charged with the public trust are asked to profess loyalty to the Constitution and limit expression that could undermine their ability to do their job. The class of speakers less favored by the courts has included, dubiously, children and prisoners. These exceptions suggest that internal security and the functioning of government are other policies that override the first amendment in specific cases, to the legitimate discomfort of committed civil libertarians.
The override occurs again in the area of privacy and defamation. Expressing intimate and private facts about a private individual is subject to civil damages, as is the spread of untruths damaging to either public or private figures. First amendment protections are worked into the law of defamation and privacy, but they are not allowed to supersede completely the reputational interest and personal integrity of the victims of certain forms of expression. When courts are called into private disputes about defamatory speech, they are really mediating between competing interests of constitutional dimension: the right of expression, and the implicit right to a measure of personal integrity, peace of mind, and personhood.
Speech infringing on public order is another classic unprotected area. Bomb threats, incitements to riot, “fighting words,” and obscene phone calls are a few of the speech-crimes that slip through the first amendment’s web of protection. These categories edge close to the category of racist speech. Under existing law, insults of such dimension that they bring men—this is a male-centered standard—to blows are subject to a first amendment exception. The problem is that racist speech is so common that it is seen as part of the ordinary jostling and conflict people are expected to tolerate, rather than as fighting words. Another problem is that the effect of dehumanizing racist language on the target is often flight rather than fight. Targets choose to avoid racist encounters whenever possible, internalizing the harm rather than escalating the conflict. Lack of a fight and admirable self-restraint then defines the words as nonactionable.
Although it is sometimes suggested that the first amendment is absolute, even strong civil libertarians are likely to admit that the absolutist view is unworkable. The law professor Frederick Schauer has argued that absolute protection of expression would render unconstitutional “all of contract law, most of antitrust law, and much of criminal law.”49 The need to distinguish protected from unprotected speech is inevitable.
If there are important competing interests represented in the international position on elimination of racist hate messages, if these interests are only met by limiting speech, and if the speech represented in racist hate propaganda is not the kind of speech most needful of protection, then it may be possible to remain true to the first amendment without protecting racist hate propaganda. In the following section I suggest that an explicit and narrow definition of racist hate messages will allow restriction consistent with first amendment values.
This chapter attempts to recognize and accommodate the civil libertarian position. The victim’s perspective requires respect for the idea of rights, for it is those on the bottom who are most hurt by the absence of rights, and it is those on the bottom who have sustained the struggle for rights in U.S. history. The image of book burnings should unnerve us and remind us to argue long and hard before selecting a class of speech to exclude from the public domain. I am uncomfortable in making the suggestions in this section when others fall too easily into agreement.
A definition of actionable racist speech must be narrow in order to respect first amendment values. I believe racist speech is best treated as a sui generis category, presenting an idea so historically untenable, so dangerous, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond that it is properly treated as outside the realm of protected discourse. The courts in the Skokie case50 expressed doubt that principles were available to single out racist speech for public limitation. Here I attempt to construct a doctrinal and evidentiary world in which we might begin to draw the lines the Skokie courts could not imagine.
The alternative to recognizing racist speech as qualitatively different because of its content is to continue to stretch existing first amendment exceptions, such as the “fighting words” doctrine and the “content/conduct” distinction. This stretching ultimately weakens the first amendment fabric, creating neutral holes that remove protection for many forms of speech. Setting aside the worst forms of racist speech for special treatment is a non-neutral, value-laden approach that will better preserve free speech.
To distinguish the worst, paradigm example of racist hate messages from other forms of racist and nonracist speech, I offer three identifying characteristics:
Making each element a prerequisite to prosecution prevents opening of the dreaded floodgates of censorship.
The first element is the primary identifier of racist speech: Racist speech proclaims racial inferiority and denies the personhood of target-group members. All members of the target group are at once considered alike and inferior.
The second element attempts to further define racism by recognizing the connection of racism to power and subordination. Racism is more than race hatred or prejudice. It is the structural subordination of a group based on an idea of racial inferiority. Racist speech is particularly harmful because it is a mechanism of subordination, reinforcing a historical vertical relationship.
The final element is related to the “fighting words” idea. The language used in the worst form of racist speech is language that is, and is intended as, persecutory, hateful, and degrading.
The following section applies these three elements to hypothetical cases. Using these elements narrows the field of interference with speech. Under these narrowing elements, arguing that particular groups are genetically superior in a context free of hatefulness and without the endorsement of persecution is permissible. Satire and stereotyping that avoids persecutory language remains protected. Hateful verbal attacks upon dominant-group members by victims is permissible. These kinds of speech are offensive, but they are, in respect of first amendment principles, best subjected to the marketplace of ideas. This is not to suggest that we remain silent in the face of offensive speech of this type. Rather, the range of private remedies—including counterspeech, social approbation, boycott, and persuasion—should apply.
If the most egregious, paradigmatic racial hate messages are not properly left to private remedy, it is important to explain why. One way to explain this is to consider the difference between racist hate messages and Marxist speech. Marxist speech is the kind of unpopular political expression the first amendment is intended to protect. Marxist speech is, according to a once-prevalent view, the advocacy of overthrow of existing governments, inevitably leading to dictatorships and persecution of dissidents and capitalists. It is thus, it was argued, dangerous speech, properly censored. The legacy of this view was McCarthyism and the shattered lives of hundreds of decent citizens.
How can one argue for censorship of racist hate messages without encouraging a revival of McCarthyism? There is an important difference that comes from human experience, our only source of collective knowledge. We know, from our collective historical knowledge, that slavery was wrong. We know white minority rule in South Africa is wrong. This knowledge is reflected in the universal acceptance of the wrongness of the doctrine of racial supremacy. There is no nation left on this planet that submits as its national self-expression the view that Hitler was right. South Africa is alone in its official policy of apartheid, and even South Africa, in making its case to the world community, is careful to avoid an explicit ideology of racial supremacy, preferring instead the rhetoric of one step at a time. At the universities, at the centers of knowledge of the international community, the doctrines of racial supremacy and racial hatred are again uniformly rejected. At the United Nations the same is true. We have fought wars and spilled blood to establish the universal acceptance of this principle. The universality of the principle, in a world bereft of agreement on many things, is a mark of collective human progress. The victim’s perspective, one mindful of the lessons of history, thus accepts racist speech as sui generis and universally condemned.
Marxist speech, however, is not universally condemned. Marxism presents a philosophy for political organization, distribution of wealth and power, ordering of values, and promotion of social change. By its very content it is political speech going to the core of ongoing political debate. It is impossible to achieve world consensus either for or against this political view. Marxists teach in universities. Although Marxist ideas are rejected and abhorred by many, Marxist thought, like liberal thought, neoconservative economic theory, and other conflicting structures for understanding life and politics, is part of the ongoing efforts of human beings to understand their world and improve life in it.
What is argued here, then, is that we accept certain principles as the shared historical legacy of the world community. Racial supremacy is one of the ideas we have collectively and internationally considered and rejected. As an idea connected to continuing racism and degradation of minority groups, it causes real harm to its victims. We are not safe when these violent words are among us.
Treating racist speech as sui generis and universally condemned on the basis of its content and the harmful effect of its content is precisely the censorship that civil libertarians fear. I would argue, however, that explicit content-based rejection of narrowly defined racist speech is more protective of civil liberties than the competing-interests tests or the likely-to-incite-violence tests that can spill over to censor forms of political speech.
Looking to the emerging critical race theory, I derive basic principles: the need to fight racism at all levels, the value of explicit formal rules, and a fear of tyranny. These principles suggest the wisdom of legal intervention with only a narrowly defined class of racist hate propaganda.
A range of legal interventions, including the use of tort law and criminal law principles, is appropriate to combat racist hate propaganda. Although the value of free speech can guide the choice of procedure—including evidentiary rules and burdens of persuasion—it should not completely remove recourse to the institution of law to combat racist speech. Racism as an acquired set of behaviors can be disacquired, and law is the means by which the state typically provides incentives for changes in behavior.
In order to get beyond racism, we must first take account of race. There is no other way.
—Harry Blackmun51
Of course I emphasize different things, Doctor, because history has treated my people differently from yours.
—Richard Delgado52
In this section I consider stories at the edge, a tentative discussion of problem cases that may arise under the definition of actionable racist speech discussed here. The connecting thread in these examples is the need for clarity about the historical context in which racist speech arises and attention to the degree of harm experienced by targets of different kinds of racist speech.
Expressions of hatred, revulsion, and anger directed against members of historically dominant groups by subordinated-group members are not criminalized by the definition of racist hate messages used here. Malcolm X’s “white devil” statements—which he later retracted—are an example. Some would find this troublesome, arguing that any attack on any person’s ethnicity is harmful. In the case of the white devil, there is harm and hurt, but it is of a different degree. Because the attack is not tied to the perpetuation of racist vertical relationships, it is not the paradigm worst example of hate propaganda. The dominant-group member hurt by conflict with the angry nationalist is more likely to have access to a safe harbor of exclusive dominant-group interactions. Retreat and reaffirmation of personhood are more easily attained for members of groups not historically subjugated.
Although white-hating nationalist expressions are condemnable both politically and personally, I would interpret an angry, hateful poem by a person from a historically subjugated group as a victim’s struggle for self-identity in response to racism. It is not tied to the structural domination of another group. Part of the special harm of racist speech is that it works in concert with other racist tools to keep victim groups in an inferior position. Should history change course, placing former victim groups in a dominant or equalized position, the newly equalized group will lose the special protection suggested here for expression of nationalist anger.
Critics of this proposal ask how one knows who is oppressed and who is not. Poor whites, ethnic whites, wealthy ethnics—the confusing examples and barriers to classification abound. The larger question is how anyone knows anything in life or in law. To conceptualize a condition called subordination is a legitimate alternative to denying that such a condition exists. In law we conceptualize. We take on mammoth tasks of discovery and knowing. We can determine when subordination exists by looking at social indicators: Wealth, mobility, comfort, health, and survival—or the absence of these—tend to mark the rise to the top and the fall to the depths. The rise and fall of group status is relevant even when an individual is a counterexample, because when the group is subordinated, even the lucky counterexample feels the downward tug. Luck is not the same as privilege.
In some cases, a group’s social well-being may improve even as its victimization continues. Asians who experience economic success are often under employed relative to their talents. Jews who attain equality in employment still experience anti-Semitic vilification, harassment, and exclusion. Catholics are relatively free from discrimination in some communities and subject to vile bigotry in others. Evidence of the relative subjugation of various groups is available to fact finders.
In the same way that lawyers marshal evidence in an adversarial setting to find facts in other areas of law, we can learn to know the facts about subordination and to determine when hate speech is used as an instrument of that subordination.
What of hateful racist and anti-Semitic speech by people within subordinated communities? The phenomenon of one subordinated group inflicting racist speech upon another subordinated group is a persistent and touchy problem. Similarly, members of a subordinated group sometimes direct racist language at their own group. The victim’s privilege becomes problematic when it is used by one subordinated person to lash out at another. I argue here for tolerance of hateful speech that comes from an experience of oppression, but when that speech is used to attack a subordinated-group member, using language of persecution and adopting a rhetoric of racial inferiority, I am inclined to prohibit such speech.
History and context are important in this case because the custom in a particular subordinated community may tolerate racial insults as a form of wordplay. Where this is the case, community members tend to have a clear sense of what is racially degrading and what is not. The appropriate standard in determining whether language is persecutory, hateful, and degrading is the recipient’s community standard. We should beware lest by misunderstanding linguistic and cultural norms we further entrench structures of subordination.
I reject the sweeping charge that Zionism is racism and argue instead for a highly contextualized consideration of Zionist speech. To the extent that any racial hostility expressed within a Zionist context is a reaction to historical persecution, it is protected under the doctrinal scheme suggested in this chapter. Should Zionists ever lose this historically based privilege? If Zionist speakers are white, do hateful, race-bound expressions of theirs necessarily reinforce historical conditions of white dominance over brown and black people? The analysis must turn on the particular context. If a Zionist’s expression of anger includes a statement of generic white supremacy and persecution, the speaker chooses to ally with a larger, historically dominant group, and the privilege should not apply. On the other hand, angry, survivalist expression, arising out of the Jewish experience of persecution and without resort to the rhetoric of generic white supremacy, is protected under the contextualized approach. Again, it is important to add that the various subordinated communities are best equipped to analyze and condemn hate speech arising within their midst.
Another difficult case is that of the social scientist who makes a case for racial inferiority in an academic setting based on what is presented as scientific evidence. Various theories of genetic predisposition to violence, cultural lag, and a correlation between race and intelligence fall into this category. Critics note that these pseudoscientific theories are racist and ignorant.53 This raises two separate questions. First, should such views receive an audience and a forum in an academic setting? Second, should we criminalize expressions of such views?
As to the first question, the answer may well be no. Not all views deserve the dignity of an academic forum. Poorly documented, racially biased work does not meet the professional standards required of academic writing. If a writer manages to come up with a theory of racial inferiority supported by evidence acceptable within the relevant discipline, that theory may deserve a forum. Under the principle of academic freedom, ignorant views need not be heard, but unpopular, academically tenable views should be.
As to the second question, outlawing this type of speech might be inappropriate. Assuming the dead-wrong social science theory of inferiority is free of any message of hatred and persecution, the ordinary, private solution is sufficient: Attack such theories with open public debate and with denial of a forum if the work is unsound in its documentation.
There are certain symbols and regalia that in the context of history carry a clear message of racial supremacy, hatred, persecution, and degradation of certain groups. The swastika, the Klan robes, the burning cross are examples of signs that—like all signs—have no meaning on their own, but convey a powerful message to both the user and the recipient of the sign in context.
Here we must look to the history of these signs to understand what they mean. If the historical message, known to both victim and perpetrator, is racist persecution and violence, then the sign is properly treated as actionable racist speech.
Anti-Semitic literature is one of the most highly developed and despicable forms of hate propaganda. A significant problem with the test proposed here is that it may, at first blush, seem too narrow to cover some chillingly sterile brands of anti-Semitic literature. The monetary conspiracy theories, the tales of mysterious cartels, the revisionist histories distributed by anti-Semitic hate groups are sometimes cunningly devoid of explicit hate language. Here is another story:
One recent summer, after giving a talk advocating restriction of hate speech, I was dutifully catching up on reading academic junk mail—newsletters, book announcements, requests for contributions. I picked up a leaflet, professionally printed and attributed to an academic institution, and began reading what looked like a mildly interesting historical essay. It was only after several paragraphs that I realized I was reading a holocaust hoax tract. My heart started racing as soon as I realized what a horrible thing I held in my hand. I felt fear and revulsion that I was targeted to receive this mail and that it was written in such a way that I didn’t immediately recognize it for what it was. I fished in the rubbish can for the envelope and found it had no return address—that should have been the tip-off The out-of-state postmark gave me some relief At least the writers were not in my immediate neighborhood. The fear, however, remains, and I am more cautious about where and to whom I will speak on this topic that brings hate to my desk.
I am inclined to criminalize the cold-blooded version of anti-Semitic literature. Given the historical record, this “cold” version is just as hateful, for all its tone of distorted rationality, as the “hot” name-calling versions. To call the Holocaust a myth is to defame the dead, as Elie Wiesel has so eloquently put it.54 It is a deep harm to the living. In a range of different contexts, the common law has recognized the likelihood of emotional harm to the living from careless treatment of the dead.
The element of hatred and degradation is present in the monetary conspiracy theory and holocaust hoax literature. Like the swastika, these texts take their hateful meaning from their historical context and connection to violence. To anyone who knows that context, they cause legitimate distress.
YES! Send me The SS, to examine for 10 days free, as my introduction to The Third Reich.
—Advertisement for Time-Life Books55
There are instances in which hate propaganda is deliberately spread by persons who are not themselves hate mongers. There are groups that preserve and disseminate hate propaganda for the purpose of educating the public about the evils of racism and anti-Semitism. There are groups and individuals who collect racist memorabilia for reasons of collectability, some also claiming an educative function and others out of a fondness for the ephemera of evil. There are news reporters who repeat racist speech in reporting the news of its utterance, law professors who repeat racist words in hypotheticals for class discussion of the first amendment. In these cases the hate message is spread for purposes other than persecution. The hateful message is once removed from direct transmission by a buffer zone of a nonpersecuting presenter.
When I viewed an Anti-Defamation League display of Nazi propaganda, I felt a familiar, queasy revulsion—the same feeling I got when I viewed dusty spoils of war, emblazoned with swastikas, at the veterans’ halls I visited with my father as a child. What I did not feel was the heart-racing fear engendered by hate propaganda from anonymous senders. Knowing the intent of the Anti-Defamation League made the presentation less intrusive. Knowing that the league is in constant dialogue with victim-group members, carefully considering the possible harms of neutral presentations of hate propaganda, was a significant comfort.
The growing passion for collecting racist memorabilia is more troublesome. Not all collectors are involved in careful debate, weighing the harm of insult against the value of historic preservation. State intervention might be appropriate where collectors’ displays cause gratuitous harm to viewers. The key to differentiating between the Anti-Defamation League display and a hypothetical Gestapo Collector’s Club display of lovingly polished storm trooper paraphernalia is the victim’s story. Rather than looking to the neutral, objective, unknowing, and ahistorical reasonable person, we should look to the victim-group members to tell us whether there is real harm to real people.
Another area of seemingly less egregious speech is humor. Consider this comment by an American judge: “Do you know how to make an [ethnic group] omelette? Well, first you have to go out and steal three eggs.”56 Not only are these jokes unfunny, they are also cruel and hurtful in much the same way that racist epithets are. That they are said with a smile and often in a social or performance setting that may be a somewhat more appropriate venue for insult changes their character somewhat. It is a venue in which private sanction has some opportunity for success. The comedian Richard Pryor, for example, stated publicly that he was persuaded to discontinue comedic use of a racial epithet in his performances.
Similarly, in considering the use of racist slurs in the interests of realism in books, films, and theater, the experience of victim-group members is a guide. The writer-director Spike Lee’s film Do the Right Thing57 contains a rapid-fire sequence of racial epithets spoken by characters from different racial groups in a Brooklyn neighborhood. The hyperrealism of the sequence offers an incisive antiracist critique of racist speech. Similarly, Mark Twain, known as a great American writer and antiracist, used racist dialogue to portray a racist land. The problem for some African-American parents is that their young children may suffer harm from further exposure to racist language, particularly in a white-majority setting. Students of color frequently report feeling assaulted in classrooms where racist epithets are used casually, and even gleefully, by classmates who claim they are only reporting the racist words of others.
The failure of school integration and the underrepresentation of African Americans in positions of authority in the schools increases the danger that Twain’s realism will, in some schools, cause the kind of harm Twain himself would have abhorred. We need safe harbors before we begin rocking boats.
Consider this story:
A white teacher in Gould, Arkansas, resigned in tears after parental protests over her statement to boisterous school children, CCI think you’re trying to make me think you’re a bunch of poor, dumb n—rs, and I don’t think that.” Seats on the school board and other positions of authority in that town of 60 percent African-American residency were occupied by African Americans. Students signed petitions urging the school board to reconsider its actions against the teacher and to give her a second chance. The teacher was reinstated, expressing sincere regret for her error and her thanks to the students for a second chance. A picture of the smiling white teacher embracing an African-American student leader accompanies the news item.58
Would that all incidents of hate speech had that ending: victims empowered, consciousness raised, community restored, harm kept at bay. Unfortunately for most of us, the conditions necessary for the result achieved in that small Arkansas town are not the conditions we live under. The harm of racist speech slices deeper the farther away we are from such a life.
A marked rise of racial harassment, hate speech, and racially motivated violence marks the beginning of the 1990s. The epidemic of racist incidents on university campuses is a disturbing example of this. The application of the first amendment to racist speech, once discussed hypothetically in law schools, is now debated in classrooms where hate messages have actually appeared. The current judicial opinions tangling with hate speech and the first amendment often come from the universities.
The university case raises unique concerns. Universities are special places, charged with pedagogy and duty bound to a constituency with special vulnerabilities. Many of the new adults who come to live and study at the major universities are away from home for the first time and at a vulnerable stage of psychological development. The typical university student is emotionally vulnerable for several reasons. College is a time of emancipation from a preexisting home or community, of development of identity, of dependence-independence conflict, of major decisionmaking, and of formulation of future plans. The move to college often involves geographic relocation—a major life-stress event—and the forging of new peer ties to replace old ones. All of these stresses and changes render the college years critical in development of one’s outlook on life. College students experiment with different passions, identities, and risks. A negative environmental response during this period of experimentation could mar for life an individual’s ability to remain open, creative, and risk taking.59 Students are particularly dependent on the university for community, for intellectual development, and for self-definition. Official tolerance of racist speech in this setting is more harmful than generalized tolerance in the community at large. It is harmful to student perpetrators in that it is a lesson in getting away with it that will have lifelong repercussions. It is harmful to targets, who perceive the university as taking sides through inaction and who are left to their own resources in coping with the damage wrought. Finally, it is a harm to the goals of inclusion, education, development of knowledge, and ethics that universities exist and stand for. Lessons of cynicism and hate replace lessons in critical thought and inquiry.
The campus free speech issues of the Vietnam era and those evoked by the antiapartheid movement pit students against university administrators, multinational corporations, the U.S. military, and established governments. In the context of that kind of power imbalance, the free speech rights of students deserve particular deference. Unfortunately, as we know from our memory of four dead in Ohio, that deference is not always forthcoming.
Racist speech on campus occurs in a vastly different power context. Campus racism targets vulnerable students and faculty. Students of color often come to the university at risk academically, socially, and psychologically. Faculty of color—if they exist at all—are typically untenured, overburdened, and isolated.60 The marginalized position of faculty of color further marginalizes students of color.
There is legal precedent for considering the status of the target in measuring the amount of freedom verbal attackers enjoy. In the law of defamation, private figures can more easily obtain damages for harm to their reputation than can public figures. This is based on the greater ability of public figures to launch an effective rebuttal and on their voluntary choice to enter the public eye. An additional implicit justification is that wealth, power, and fame provide ego support that helps one weather verbal abuse. If nothing else, the defamed movie star can retreat to Malibu.
The student, like the private figure, has fewer avenues of retreat. Living on or near campus, studying in the library, and interacting with fellow students are integral parts of university life. When racist propaganda appears on campus, target-group students experience debilitated access to the full university experience. This is so even when hate propaganda is directed at groups rather than at individuals.
Students are analogous to the captive audience that is afforded special first amendment consideration in other contexts. Similarly, students who support universities through tuition and who are encouraged to think of the university as their home are involuntarily forced into a position of complicity with racism when their campus is offered to hate groups as a forum.
A related and literally captive group deserves mention here. The majority of prison inmates in many communities are people of color. Prisons are also fertile grounds for spreading racist hate speech. Courts have protected the rights of hate groups in prisons. The physical vulnerability and inability to escape that characterize prison life make restriction of hate speech in prisons more important than in the population at large.
Terse epithets come down to our generation weighted with hatreds accumulated through centuries of bloodshed.
—Justice Robert H. Jackson61
If we want to be whole, we must recall the past, those parts which we want to remember, those parts which we want to forget.
—Barbara Christian62
The cases discussed above are an effort to construct the conversation we might have if we take on the task of delineating and penalizing the most harmful class of racist speech. It is not an impossible conversation. It is a different one, in that it suggests a highly contextualized analysis and a range of relevant evidence quite at odds with that found in typical legal inquiry. This evidence encompasses the particularity of a victim’s time and place as well as the experience of a victim’s group over the course of time and space. It recognizes that the experience of racism, of persecution for membership in a group, makes the group’s consciousness the victim’s consciousness, all of which is relevant in assessing the harm of racist speech. It makes relevant, then, knowledge as old as the Torah and as new as the back page of this morning’s newspaper. It makes relevant, too, what has happened to you, to me, to an acquaintance, to a friend of a friend, to a person whom we have never met but who is tied to us as a survivor of the same hate.
This deep historical consciousness lifts us out of the neutrality trap, that trap under which many states have passed antimask statutes in a barely disguised effort to limit Ku Klux Klan activities.63 These statutes purportedly cover the wearing of masks in general, with no specific mention of the intent to control the Klan. Neutral reasons, such as the need to prevent pickpockets from moving unidentified through crowds or the need to unmask burglars and bank robbers are proffered for such statutes. The result of forgetting—or pretending to forget—the real reason for antimask legislation is farcical. Masks are used in protest against terrorist regimes for reasons of both symbolism and personal safety. Iranian students wearing masks and opposing human rights violations by the Shah of Iran, for example, were prosecuted under a California antimask statute.
I call here for an end of such unknowing. We know why state legislatures—those quirkily populist institutions—have passed antimask statutes. It is more honest, and less cynically manipulative of legal doctrine, to legislate openly against the worst forms of racist speech, allowing ourselves to know what we know.
The legal response to racist propaganda provides an interesting context for examination of the relation between law and racism. Legal protection of racism is seen in these doctrinal elements:
The limits of the lawmaking imagination of judges, legislators, and other legal insiders who have considered proposals to outlaw hate propaganda are symptomatic of the position of privilege from which legal doctrine develops. Legal insiders cannot imagine a life disabled in a significant way by hate propaganda.
This limited imagination has not affected lawmakers faced with other forms of offensive speech. The law of defamation and privacy recognizes that certain forms of expression are qualitatively different from the kind of speech deserving absolute protection. The legal imagination is able to contemplate what it feels like to hear lies spread about one’s professional competency or to have one’s likeness used for commercial gain without consent. American law has even, at times, provided a tort remedy for white plaintiffs who are “insulted” by “imputation of association with persons of a race against which there is prejudice.”64 When the legal mind understands that reputational interests, which are analogized to the preferred interest in property, must be balanced against first amendment interests, it recognizes the concrete reality of what happens to people who are defamed. Their lives are changed. Their standing in the community, their opportunities, their self-worth, their free enjoyment of life are limited. Their political capital—their ability to speak and be heard—is diminished. To see this, and yet to fail to see that the very same things happen to the victims of racist speech, is selective vision.
The selective consideration of one victim’s story and not another’s results in unequal application of the law. Unlike the victims of defamation and other torts, the victims of racist speech are not representative of the population at large. In making typical legal concessions to the first amendment, we burden a range of victims. In the case of flag burning, we force flag lovers of all races and class positions to tolerate flag desecration as part of the price of freedom. In contrast, when victims of racist speech are left to assuage their own wounds, we burden a limited class: the traditional victims of discrimination. This class already experiences diminished access to private remedies such as effective counterspeech, and this diminished access is exacerbated by hate messages. As the feminist scholar Catharine MacKinnon notes, debasing speech discredits targets, further reducing their ability to have their speech taken seriously.65 The application of absolutist free speech principles to hate speech, then, is a choice to burden one group with a disproportionate share of the costs of speech promotion. Tolerance of hate speech thus creates superregressivity—those least able to pay are the only ones taxed for this tolerance. The principle of equality is violated by such allocation. The more progressive principle of rectification or reparation—the obligation to repair effects of historical wrongs—is even more grossly violated.
The failure to hear the victim’s story results in an inability to give weight to competing values of constitutional dimension. The competing values recognized under international law are equality, liberty, and personality. Each person under that scheme is entitled to basic dignity, to nondiscrimination, and to the freedom to participate fully in society. If there is any central principle to the Bill of Rights, surely that is it. When white supremacist organizations with histories of violence have an active, protected presence in a community, that principle is sacrificed. All of our democratic institutions are tainted as a consequence. As Delgado notes in Chapter 4, the underlying first amendment values of self-fulfillment, knowledge, participation, and stable community recognized by first amendment theorists are sacrificed when hate speech is protected. The constitutional commitment to equality and the promise to abolish the badges and incidents of slavery are emptied of meaning when target-group members must alter their behavior, change their choice of neighborhood, leave their jobs, and warn their children off the streets because of hate group activity. When the presence of the Klan deters employers from hiring target-group members, prevents citizens from socializing freely, and keeps parents from sending their children to integrated schools, the goal of nondiscrimination is moved farther away from present realities. When hate propaganda spreads attitudes of racism and desensitizes potential abusers to the wrongness of violence, other more obvious goals of safety and order are sacrificed.
The third doctrinal pillar supporting racist speech is the refusal to recognize that tolerance and protection of hate group activity by the government is a form of state action. Hate groups have operated openly in prisons, in the military, in law enforcement, and in other government institutions. To allow an organization known for violence, persecution, race hatred, and commitment to racial supremacy to exist openly and to provide police protection and access to public facilities, streets, and college campuses for such a group means that the state is promoting racist speech. But for such support, hate groups would decline in efficacy The chilling sight of avowed racists in threatening regalia marching through our neighborhoods with full police protection is a statement of state authorization. The Klan marches because marching promotes the Klan and because of the terrorizing and inciting effect of its public displays. Open display conveys legitimacy. The government advances this effect when it protects these marches. In addition, the failure to provide a legal response limiting hate propaganda elevates the liberty interests of racists over the liberty interests of their targets. A member of the Georgia Bureau of Investigation, for example, once suggested to whites targeted for hate speech because of their association with African Americans that they should avoid being seen in cars with African Americans and cease inviting African Americans to their homes.66
The effect of racist propaganda is to devalue the individual and to treat masses of people in a degraded way with no measure of individual merit. This is precisely what civil libertarians oppose when the state acts. Because racist speech is seen as private, the connection to loss of liberty is not made. State silence, however, is public action where the strength of the new racist groups derives from their offering legitimation and justification for otherwise socially unacceptable emotions of hate, fear, and aggression. The need for a formal group, for a patriotic cause, and for an elevation of the doubting self are part of the traditional attraction of groups like the Klan. Government protection of the right of the Klan to exist publicly and to spread a racist message promotes the role of the Klan as a legitimizer of racism.
Further, the law’s failure to provide recourse to persons who are demeaned by the hate messages is an effective second injury to that person. The second injury is the pain of knowing that the government provides no remedy and offers no recognition of the dehumanizing experience that victims of hate propaganda are subjected to. The government’s denial of personhood through its denial of legal recourse may be even more painful than the initial act of hatred. One can dismiss the hate group as an organization of marginal people, but the state is the official embodiment of the society we live in.
The legal realists and their progeny recognize that law formation is largely a matter of value.67 There are no inevitable results; there is no controlling logic or doctrine that can make the hard choices for us. Reversion to discredited doctrinal absolutism carries a strong implication that racist activities are supported, albeit unintentionally, by the law. In a society that expresses its moral judgments through the law, and in which the rule of law and the use of law are characteristic responses to many social phenomena, this absence of laws against racist speech is telling.
We can defy the proposition that racism is part of law by opening our eyes to the reality of racism and making the decision to outlaw hate groups. We can draw from the international standard and acknowledge the competing interests at stake, adapting existing law and creating new law to limit hate group activities. It is not necessary to abandon first amendment values in order to do this. The analytical dexterity of legal thinkers offers many options for reconciling the U.S. position with the international goal of elimination of all forms of racial discrimination.
This chapter suggests that the stories of those who have experienced racism are of special value in defeating racism. It further suggests that we can, and have, chosen as a primary value freedom from racial oppression. Finally, in doing the awkward work of constructing doctrine, this chapter suggests a belief in the possibility and the necessity of creating a legal response to racist speech—not because it isn’t really speech, not because it falls within a hoped-for neutral exception, but because it is wrong.
There is in every constitutional doctrine we devise the danger of misuse. For fear of falling, we are warned against taking a first step. Frozen at the first amendment bulkhead, we watch the rising tide of racial hatred wash over our schools and workplaces. Students victimized by racist speech turn to university administrators for redress and are told that the first amendment forecloses institutional action. We owe those students a more thoughtful analysis than absolutism. At the least, before we abandon the task of devising a legal response to racist speech, we should consider concretely the options available to us. The legal imagination is a fruitful one. That is the one hopeful message of the postmodern critique of law. Nothing inherent in law ties our hands, and lawyers through the ages have displayed abundant skills of invention.
Critical race theory uses the experience of subordination to offer a phenomenology of race and law. The victims’ experience reminds us that the harm of racist hate messages is a real harm to real people. When the legal system offers no redress for that real harm, it perpetuates racism.
This chapter attempts to begin a conversation about the first amendment that acknowledges both the civil libertarian’s fear of tyranny and the victims’ experience of loss of liberty in a society that tolerates racist speech. It suggests criminalization of a narrow, explicitly defined class of racist hate speech to provide public redress for the most serious harm, leaving many forms of racist speech to private remedies. Some may feel that this proposal does not go far enough, leaving much hurtful speech to the uneven control of the marketplace of ideas. Others will cringe at what they perceive as a call for censorship. This is not an easy legal or moral puzzle, but it is precisely in these places where we feel conflicting tugs at heart and mind that we have the most work to do and the most knowledge to gain.
Ours is a law-bound culture. If law is where racism is, then law is where we must confront it. The doctrinal reconstruction presented here is tentative and subject to change as our struggle around this issue continues. However we choose to respond to racist speech, let us present a competing ideology, one that has existed in tension with racism since the birth of our nation: There is inherent worth in each human being, and each is entitled to a life of dignity.