Now it is time to consider neoconservatives and what we term the politics of denial.
As we noted earlier, the structure of the hate-speech debate has been undergoing a slow but inexorable shift. As First Amendment formalism, with its mechanistic doctrines, models, and tests, has begun giving way to First Amendment realism, both the moderate left and the moderate right, who much preferred things the old way, have changed their ground. Realizing, perhaps, that mechanical jurisprudence and case law laid down in an earlier era will not hold up much longer, they have been urging that even if First Amendment doctrine were to permit regulating hate speech, wisdom and good policy counsel against it.
A number of arguments characterize what we call the “toughlove” or neoconservative position:
We call these arguments the “deflection,” “quixotic,” “bellwether,” “victimization,” “classist,” and “two wrongs” arguments. What unites them are two themes. The first is that struggling against hate speech is a digression (“the real problem is . . .”), and the second is that the effort reinforces the idea of oneself as a victim, rather than an active agent in charge of one’s destiny.
Let us consider the arguments in turn. As we shall see, neoconservatives take the positions they do on the hate-speech controversy because vituperative speech aimed at minorities forces them to confront the intuition that slurs directed against people of color are simply more serious than ones directed against whites. This intuition, in turn, threatens a prime conservative tenet, the level playing field. We explain why the First Amendment version of that field—namely, the marketplace of ideas—is not at all level but slanted against people of color and other minorities, and why talking back to the aggressor is rarely a satisfactory option for the victim.
Many neoconservative writers argue that mobilizing against hate speech is a waste of precious time and resources. One, a law school dean, writes that civil rights activists ought to have better things to do, and that concentrating on hate-speech reform is calculated to benefit only a small number of privileged, upper-class minorities. Instead of “picking relatively small fights of their own convenience,” racial reformers should be examining the obstacles that truly impede racial progress, namely bad laws and too little money.
Others echo these remarks. Dinesh D’Souza, for example writes that campus radicals espouse hate-speech regulation because it is easier than studying hard and getting a first-rate education. Henry Louis Gates, in a cover story in the New Republic, writes that addressing racist speech does lip service to civil rights without dealing with the material reality of economic subordination.
But is it so clear that efforts to control hate speech are a waste of time and resources, at least compared to other problems that the activists could be addressing? What neoconservative writers ignore is that eliminating hate speech goes hand in hand with reducing what they consider “real racism.” Certainly, being the victim of hate speech is a less serious affront than being thrown out of one’s house or job. It is, however, equally true that a society that speaks and thinks of minorities derisively is fostering an environment in which such discrimination will occur frequently. Hate speech, in combination with a panoply of media imagery, constructs a picture of minorities in the public mind. This picture or stereotype varies from era to era but is rarely positive, including traits such as happy and carefree, lascivious, criminal, devious, treacherous, untrustworthy, immoral, and of lower intelligence.
This stereotype guides action, including motorists who fail to stop to aid a stranded black driver, police officers who hassle African American youths innocently walking on the streets, or landlords who act on hunches or unarticulated feelings in renting an apartment to a white over an equally or more qualified black or Mexican.
Even when they do not lead to consequences like these, racial barbs are painful. A white motorist who suffers an epithet (“goddam college kid!”) may be momentarily stunned. But the epithet does not call upon an entire cultural legacy the way a racial epithet does, nor deny the victim’s standing and personhood.
A further reason why neoconservatives ought to pause before throwing their weight against hate-speech regulation has to do with the nature of contemporary racism. Most neoconservatives, like many white people today, think that acts of out-and-out discrimination are rare. The racism that remains, they believe, is subtle or institutional. It lies in the arena of unarticulated feelings, practices, and patterns of behavior (like promotions policy at work) on the part of institutions. A forthright focus on speech and language may be one of the few means of addressing and curing this kind of racism. Thought and language are inextricably connected. A speaker asked to reconsider his or her use of language may begin to reflect on the way he or she thinks about a subject.
Words offer a window into our unconscious. Our choice of word, metaphor, or image gives signs of the attitudes we have about a person or subject. No readier or more effective tool offers itself than a focus on language to deal with subtle or latter-day racism. Since some neoconservatives are among the prime proponents of the notion that this form of racism is the only or the main one that remains, they should think carefully before taking a stand in opposition to measures that might make inroads into it. Of course, speech codes would not reach every form of demeaning speech or depiction. But a tool’s unsuitability to redress every aspect of a problem is surely no reason for refusing to employ it where it is effective.
Neoconservatives also argue against hate-speech regulation on the ground that the effort is doomed or quixotic. White people will never accede to such rules. Proponents of hate-speech regulation surely must know this, hence their objectives are probably symbolic, tactical, or at any rate something other than what they say. Donald Lively, for example, writes that the U.S. Supreme Court has consistently rejected laws regulating speech, finding them vague and overbroad. He also writes that the anti-hate-speech campaign lacks vision and a sense of marketability—it simply cannot be sold to the American public. Henry Louis Gates demands to know how hate-speech activists can possibly believe that campus regulations will do much good even if enacted. If campuses are the seething arenas of racism that activists believe, how will campus administrators and hearing officials provide nondiscriminatory hearings on charges brought under the codes?
But is the effort to curb hate speech doomed or misguided? It might be seen this way if the gains to be reaped were potentially only slight. But, as we argued earlier, they are large; indeed our entire panoply of civil rights laws and rules depends for its efficacy on controlling the background of harmful depiction against which the rules and practices operate. In a society where minorities are thought and spoken of respectfully, few acts of out-and-out discrimination would take place. In one that harries and demeans them at every turn, even a determined judiciary will not be able to enforce equality and racial justice.
Moreover, success is more possible than toughlove adherents would like to acknowledge. A host of Western industrialized democracies have instituted laws against hate speech and hate crime, often in the face of initial resistance (see chapter 6). Some, like Canada, Great Britain, and Sweden, have traditions of respect for free speech and inquiry rivaling ours. Determined advocacy might well accomplish the same here. In recent years, several hundred college campuses have seen fit to institute student conduct codes penalizing face-to-face insults of an ethnic or similar nature, in order to advance interests that they considered central to their function, such as protecting diversity or providing an environment conducive to education.
In addition, powerful actors like government agencies, the writers’ lobby, industries, and so on have generally been quite successful at coining free-speech exceptions to suit their interest—exceptions like libel laws, defamation, false advertising, copyright, plagiarism, words of threat, and words of monopoly, just to name a few. Each of these seems natural and justified—because time-honored—and perhaps each is. But the magnitude of the interest underlying these exceptions seems no less than that of a young black undergraduate subject to hateful abuse while walking late at night on campus. New regulation is of course subject to searching scrutiny in our laissez-faire age. But the history of free-speech doctrine, especially the landscape of exceptions, shows that need and policy have a way of being translated into law. The same may happen with hate speech.
A further argument one hears from the anti-rule camp is that hate speech should not be driven underground, but allowed to remain out in the open. The racist whom one does not know, they say, is far more dangerous than the racist whom one does. Moreover, on a college campus, incidents of overt racism or sexism can serve as useful spurs for discussion and institutional self-examination. Yale Law Professor Stephen Carter, for example, writes that regulating racist speech will leave minorities no better off than they are now, while screening out “hard truths about the way many white people look at . . . us.” D’Souza echoes this argument, but with a reverse twist, when he points out that hate-speech crusaders are missing a valuable opportunity. When racist graffiti or hateful fraternity parties proliferate, minorities should reflect on the possibility that this may signal something basically wrong with affirmative action. Instead of tinkering futilely with the outward signs of malaise, we ought to deal directly with the problem itself. A law review editor argues that anti-racism rules are tantamount to “[s]weeping the problem under the rug,” whereas “[k]eeping the problem in the public spotlight . . . enables members [of the university community] to attack it when it surfaces.”
How should we see this argument? In one respect, it does make a valid point. All other things being equal, the racist who is known is less dangerous than the one who is not. But the argument ignores a third alternative, namely the racist who is cured, or at least deterred by firm rules, policies, and expectations so as no longer to behave as he or she once did. Since most conservatives believe that rules and penalties change conduct (and are indeed among the strongest proponents of heavy penalties for crime), they should take seriously the possibility that campus guidelines against hate speech and assault would decrease those behaviors.
A fourth argument many neoconservative critics of hate-speech regulations make is that prohibitions against verbal abuse are unwise because they encourage minorities to see themselves as victims. Instead of rushing to the authorities every time they hear something that wounds their feelings, minorities ought to learn to speak back or ignore the offending behavior. A system of rules and complaints reinforces in their minds that they are weak and in need of protection, that their lot in life is to be victimized rather than to make use of those opportunities that are available to them. Carter, for example, writes that anti-hate-speech rules cater to “those whose backgrounds of oppression make them especially sensitive to the threatening nuances that lurk behind racist sentiment.” Lively warns that the rules reinforce a system of “supplication and self-abasement”; D’Souza, that they distort and prevent interracial friendships and encourage a crybaby attitude; Gates, that they reinforce a therapeutic mentality and an unhealthy preoccupation with feelings.
Would putting into place hate-speech rules encourage passivity and a victim mentality among minority populations? In most cases, no, for other alternatives will remain available as before. No African American or lesbian student is required to make a complaint when targeted by verbal abuse or invective. He or she can talk back or ignore it if he or she sees fit. Hate-speech rules simply provide an additional avenue of recourse to those who wish to take advantage of them. Indeed, one could argue that filing a complaint constitutes one way of taking charge of one’s destiny—one is active, instead of passively “lumping it” when verbal abuse strikes.
It is worth noting that we do not make the victimization charge in connection with other offenses that we suffer, such as having a car stolen or a house burglarized, nor do we encourage those victimized in this manner to “rise above it” or talk back to their victimizers. If we see recourse differently in the two sets of situations, it may be because we privately believe that a black who is called “nigger” by a group of whites is in reality not a victim. If so, it would make sense to encourage him not to dwell on or sulk over the event. But this is different from saying that filing a complaint deepens victimization; moreover, many studies have shown it simply is untrue. Racist speech is the harm. Filing a complaint is not. No empirical evidence suggests that filing a civil rights complaint causes one to feel worse about oneself.
Others in the neoconservative camp dismiss the effort to limit hate speech through enactment of campus rules as classist. The rules will end up punishing only what naïve or blue-collar students do and say. The more refined, indirect, but more devastating expressions of contempt of the more highly educated classes will pass unpunished. Henry Louis Gates offers the following comparison:
(A) LeVon, if you find yourself struggling in your classes here, you should realize it isn’t your fault. It’s simply that you’re the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one. The policy’s egalitarian aims may be well-intentioned, but given . . . that aptitude tests place African Americans almost a full standard deviation below the mean, even controlling for socioeconomic disparities, they are also profoundly misguided. The truth is, you probably don’t belong here, and your college experience will be a long downhill slide.
(B) Out of my face, jungle bunny.
Lively and D’Souza make versions of the same argument.
In one respect, the classism argument is plainly off target. If, in fact, the prep school product is less likely to utter harsh words of this kind, or to utter only intellectualized versions like the one in Gates’s case A, this may be because he is less racist in a raw sense. If, as many social scientists believe, prejudice tends to be inversely correlated with educational level, the wealthy and well educated may well violate hate-speech rules less often than others. And in any event, “Out of my face, jungle bunny” (Gates’s case B) is a more serious example of hate speech because it is not open to argument or a more-speech response, and has overtones of a direct physical threat. The other version, while deplorable, is unlikely to be coupled with a physical threat, and is answerable by more speech. (“That’s wrong. Not all of us are on a downward slide. My friend Jamila made the dean’s list last semester.”)
The “two wrongs” argument, which holds that hate speech may be wrong but prohibition is not the way to deal with it, is one of the relatively few arguments that both the moderate right and the moderate left put forward, although they do so in slightly different forms and for different reasons. The moderate left opposes hate-speech restrictions in part because although it detests racism, it loves free speech even more. For their part, neoconservatives oppose regulation because it is government, in most cases, that would be doing the regulating, and especially because in the area of speech, governing to them is synonymous with censorship.
Gates, for example, writes that “there is also a practical reason to worry about the impoverishment of the national discourse on free speech. If we keep losing the arguments, then we may slowly lose the liberties that they were meant to defend.” He also warns that two wrongs don’t make a right and laments that our society and legal system have fallen away from the classical ideal of civil rights and civil liberties as perfectly compatible goods for all. Lively writes that history teaches that campaigns to limit speech always end up backfiring against minorities because free speech is a vital civic good and even more essential for them than others. Virtually all the authors of the moderate right persuasion (and some of the moderate left as well) cite the fear of censorship or governmental aggrandizement. If we allow an arm of the state to decide what is harmful speech, soon little of the right of speech will survive.
By way of response, we note that the term “censorship” is appropriately attached to measures allowing the heavy hand of government to fall on weaker, unpopular private speakers, or else on political dissidents who are attempting to criticize or change government itself. With hate-speech regulation, however, few of the concerns that underlie our aversion to censorship are present. Hate speakers are criticizing not government, but someone weaker than themselves. In prohibiting it, universities are not attempting to insulate themselves from criticism; concerns over governmental self-perpetuation are absent. Similarly, the speech being punished is far from the core of political expression—it carries few ideas at all except “I hate and reject your personhood.” Hate speech, in fact, silences the victim and drives him away from places where conversation is occurring. Thus, when the government regulates hate speech, it enhances and adds to potential social dialogue, rather than subtracts from it.
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Why do toughlove proponents embrace arguments like these? We believe the reason has to do with the way hate speech casts doubt on a principal tenet of the conservative faith: the level playing field. In First Amendment theory, the name of that playing field is the marketplace of ideas, in which messages and communications of all sorts supposedly vie on equal terms to establish themselves. Out of that engagement, at least in theory, truth—the best idea of all—will emerge.
The core difficulty that hate speech poses for the conservative mind is, simply, that there is no correlate—no analog—for hate speech directed toward whites. Nor is there any countering message that could cancel out the harm of “Nigger, you don’t belong on this campus—go back to Africa.”
Vituperation aimed at underdogs wounds; there is nothing comparably damaging that whites have to undergo. The word “honky” is more a badge of respect than a put-down. “Cracker,” although disrespectful, still implies power, as does “redneck.” The fact is that terms like “nigger,” “spic,” “faggot,” and “kike” evoke and reinforce entire cultural histories of oppression and subordination. They remind the target that his or her group has always been and remains unequal in status to the majority group. Even the most highly educated, professional-class African American or Latino knows that he or she is vulnerable to the slur, the muttered expression, the fishy glance on boarding the bus, knows that his graduate degree, his accomplishments, his well-tailored suit are no armor against mistreatment at the hands of the least-educated bigot.
Hate speech, then, wounds in a way that finds no analog with respect to whites; nor is there any effective way for a victim to speak back or counter it, even when it is physically safe to do so. Even worse, the most frequently targeted groups evoke little sympathy from society or the legal system when they ask for protection. Society instead asks, why don’t you just talk back? In other settings, the combination of the three features just named would cause us to conclude that the playing field is not level, but sharply slanted. Imagine, for example, an athletic competition in which one side is denied a powerful weapon (say, the forward pass) and the other side is permitted to deploy this weapon freely, because the rules prevent the first from doing anything to counter it when it is used (such as knocking down the ball); and changes in the rules are not permitted because this is said to violate the charter that established the game in the first place.
Surely, we would say that such a competition is rigged. Yet, something like that characterizes the predicament of minority victims of hate speech. Conservatives cannot allow themselves to see this, however, since it goes against some of their most basic assumptions, including free competition and merit.
The problem of hate speech will not go away by merely insisting on ideologically based truths that “must be so,” nor by suggesting responses that ought to work, much less by blaming the victim or telling him that the problem is all in his head. Hate speech renders campuses uncomfortable and threatening to substantial numbers of students at vulnerable points in their lives. It helps construct and maintain a social reality in which some are constantly one-down. And it tolerates and creates a culture at odds with our deepest national values and commitments.
Coming to grips with hate speech does pose serious problems for a society committed both to equality and to individual freedom and autonomy. But resorting to facile arguments like those discussed in this chapter does little to advance the discussion. Neoconservatives should allow themselves to see what everyone else does—that hateful remarks and invective are a virulent form of inequality reinforcement—and join the serious search now gaining force for cures for this national disease.