Matsuda, M.J. (1989). Public response to racist speech: Considering the victim’s story. Michigan Law Review, 87(8), 2320-2381.
In making this suggestion, this Article moves between two stories. The first is the victim’s story of the effects of racist hate messages. The second is the first amendment’s story of free speech. The intent is to respect and value both stories. This bipolar discourse uses as method what many
outsider intellectuals do in silence: it mediates between different ways of knowing in order to determine what is true and what is just.
It goes against an American tradition of tolerance that is precious in the sense of being both valuable and fragile.
Dean Lee Bollinger has concluded that a primary reason for the legal protection of hate speech is to reinforce our commitment to tolerance is a value.
nihilist: is a philosophical position which argues that existence is without objective meaning, purpose, or intrinsic value. p. 2324
This description ties law to racism, showing that law is both a product and a promoter of racism.
Using the descriptive and prescriptive messages of the emerging outsider jurisprudence to confront the problem of racist hate messages provides new insights into the longstanding neutral-principle dilemma of liberal jurisprudence. (p. 2326)
IDENTITY: 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, while I have encountered incredulity, skepticism, and even hostility from others.
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. “KKK” references were directed at him, as well as other unfortunately typical racist slurs and death threats. His employer discouraged him from calling the police, attributing the incidents to “horseplay. “
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 ‘yoke” gift to the battalion chief, and that it was unclear why or how it ended up at the work stations of the minority employees.” S.F. Fire Department Declared “Out of Control”, Asian L. Caucus Rep., July-Dec. 1987, at 1, col 1. Edwin Lee of Chinese for Affirmative Action called the swastika incident “an act of racial violence, not to be taken lightly, but to be severely disciplined.” (p. 2328).
In Jackson, Mississippi, African-American employees of Frito-Lay found their cars sprayed with “KKK” inscriptions, and were the targets of racist notes and threats. Local African Americans and Jews were concerned, but officials said the problem was attributable to children. Poverty Law Report, Mar.-Apr. 1982, at 11, col. 2. (p. 2328).
An African-American FBI agent was subject to a campaign of racist taunts by white co-workers. A picture of an ape was pasted over his child’s photograph, and racial slurs were used. Such incidents were called “healthy” by his supervisor. Black F.B.I. Agent’s Ordeal: Meanness That Never Let Up, N.Y. Times, Jan. 25, 1988, at 1, col. 1. (p. 2328).
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. Complaint at 3, EEOC v. Hyster Co., Civ. No. 88-930-DA (D. Ore. filed Aug. 15, 1988) (alleging a hostile work environment created by racially objectionable advertisement campaign and use of racial slurs by management in work place). (p. 2328)
In Contra Costa, 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. ” Racial Violence Belies Good Life in Contra Costa County, L.A. Times, Dec. 7, 1980, at 3, col. 5. (p. 2328)
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. “- ASIAN AND PACIFIC ISLANDER ADVISORY COMM., OFFICE OF ATTORNEY GEN., CAL. DEPT. OF JUSTICE, FINAL REPORT (1988) [hereinafter ATTORNEY GENERAL’S REPORT pp. 2328-2329
As a young child I was told never to let anyone call me a J-p.49 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 Boston5l to San Francisco, from Galveston53 to Detroit. (p. 2329)
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. (p. 2330)
all-too-common phenomenon of “move-in” violence (p. 2330)
ABOUT THE ARTICLE: While this Article focuses on the phenomenology of racism, it includes 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 anti-gay and anti-lesbian hate speech are not discussed in this Article. (p. 2331)
Racism and racial speech is the main focus of this article — although sexual orientation/gender identity have equal need to be discussed — but require separate analysis (p.2331-2332)
WHAT IS RACIST SPEECH?
The claim that a legal response to racist speech is required stems from a recognition of the structural reality of racism in America. 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:
1. Violence and genocide;
2. Racial hate messages, disparagement, and threats;
3. Overt disparate treatment; and
4. Covert disparate treatment and sanitized racist comments. In addition to physical violence, there is the viol
ence of the word. 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 schoolyards, in popular culture and in the propaganda of hate widely distributed in this country. (p. 2332).
UNIVERSITIES: Our college campuses have seen an epidemic of racist incidents in the 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. (pp. 2332-2333).
College campus examples: THEY DON’T ALL WEAR SHEETS (p. 2333)
HIDDEN CURRICULUM: 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, while 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. (p. 2334)
EVIDENCE: I have heard many anti-African-American, anti-Latino, and anti-Semitic comments by people who assume that Asian Americans are not offended by such speech. I have heard these comments in law firms, at universities, and at fancy dinner parties, as well as in working-class settings. In my efforts of private reprimand for racist speech, I have found upper-class speakers more likely to defend their racism. When I objected to the statement that members of an ethnic group are welfare cheaters, the wealthy woman who made the statement proceeded to provide “evidence” that she was correct. When I objected to an L.A. cabdriver’s similar statement, he responded, “Lady, I grew up among garbage and garbage comes out of my mouth,” and he apologized for offending me (p. 2334)
Vincent Chin: 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.78 Nor was the murder of the Davis, California, high school student Thong Hy Huynh, after months of anti-Asian racial slurs. (p. 2335)
VIOLENCE: Violence is a necessary and inevitable part of the structure of racism.80 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. (p. 2335)
VICTIMS: Victims of vicious hate propaganda have experienced physiological symptoms and emotional distress ranging from fear in the gut, rapid pulse rate and
difficulty in breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis, and suicide. (p. 2336).
VICTIMS: Victims are restricted in their personal freedom. In order to avoid receiving hate messages, victims have had 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. (p. 2337)
DISASSOCIATION: As writers portraying the African-American experience have noted, the price of disassociating from one’s own race is often sanity itself.
VICTIM: 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 can either identify with a community that promotes racist speech, or they can admit that the community does not include them. (p. 2338)
DOMINANT GROUP: 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. (p. 2338)
DOMINANT: It forces well-meaning dominant-group members to use kid-glove care in dealing with outsiders.93 This is one reason why social relations across racial lines are so rare in America. (p. 2339)
CULTURAL RACISM: Research in psychosocial and psycholinguistic analysis 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. (p. 2339)
VICTIM: We reject the idea, but the next time we sit next to one of “those people” the dirt message, the sex message, is triggered.98 We stifle it, reject it as wrong, but it is there, interfering with our perception and interaction with the person next to us. (p. 2340)
VICTIM: 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 (p. 2340)
International Convention on the Elimination of All Forms of Racial Discrimination (p. 2341)
In addressing incitement, the American draft would have outlawed direct incitement to acts of racist violence.’ It would have disallowed government involvement in chartering or supporting racist hate groups.
U.S. DOES NOT VOTE: 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. The problem of freedom of association and the banning of hate organizations was also discussed. The final decision, by a vote of 16 in favor and 5 abstentions, was to adopt paragraph (b) as it is now written, banning propaganda activity that promoted discrimination, and criminalizing participation in organizations promoting discrimination. The weaker American position was thus rejected by the Commission. (p. 2343).
FREE SPEECH: The General Assembly debates on article focused on free speech. While 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. The article declares that states parties “condemn all propaganda . . . based on ideas or theories of superiority . . . or which attempt[s] to justify or promote racial hatred and discrimination in any form.”‘ 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.”‘(p. 2344)
The Convention, including article 4, was unanimously adopted by the General Assembly on December 21, 1965.126 Under U.N. treaty procedure, it entered into force on January 4, 1969, and gathered an increasing number of state signatures over the years. (p. 2345)
The United Kingdom, for example, under the Race Relations Act, has criminalized incitement to discrimination and incitement to racial hatred. (p. 2346)
The Act recognized the inevitable connection between the general spread of r
ace hatred and the spread of violence. While commentators have suggested that the Act is ineffective and capable of misuse, the existence of the Act supports the growing international movement toward
outlawing racist hate propaganda. (p. 2347)
CANADA, AUSTRALIA, NEW ZEALAND: Canada has similarly adopted a national statute governing hate propaganda. Australia and New Zealand also have laws restricting racist speech,146 leaving the United States alone among the major common-law jurisdictions in its complete tolerance of such speech. (pp. 2347-2348)
THE UNIQUELY AMERICAN APPROACH OF PROTECTION OF RACIST HATE PROPAGANDA: THE CIVIL LIBERTARIAN’S STORY
Many foreign lawyers, including those from countries close to the United States in ideology, are perplexed by the uniquely American approach of protection of 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. (p. 2348)
This is a starting point for exploring the dominant story of racism in American social life, and for showing that the American position is neither inevitable nor sound as a matter of democratic theory, constitutional doctrine, or value. (pp. 2348-2349)
First amendment thinking:
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.” All ideas deserve a public forum, and the way to combat anti-democratic ideas is through counter-expression. When all ideas are voiced freely, we have the greatest chance that the right results will obtain. (p. 23)
IDEAS: 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 re- course. It can use education and counter-speech to combat those ideas. It can
control conduct or action arising from those ideas. Thus while 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 in admittedly less effective than direct and preventive repression, but we have made the commitment to a free society, and we will not become un-free 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. (p. 2350)
BEYOND EXPRESSION: 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, sexual description broadcast to an audience of children, and threats of physical harm. The American doctrine recognizes a few limited categories of speech that take on qualities beyond expression. These areas are doctrinally distinct,161 and our commitment to the first amendment value requires the most vigilant scrutiny to avoid suppression of ideas under the guise of controlling conduct. (p. 2350)
What the American 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 loath- some this idea may be, it is still political speech. (p. 2350)
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. (p. 2351)
ORGANIZATIONS: 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. (p. 2352)
A corollary to the American 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. It must provide police protection to preserve order and protect speakers who are threatened by counter-demonstrators. Since groups like the Klan typically draw angry opposition when they parade in public streets, this has meant that the Klan is 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 (pp. 2352-2353).
PROTECTIONS/DEFENDING: 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. (p. 2355)
RACIST SPEECH: Speech infringing on public order is another classic unprotected area. Bomb threats, incitements to riot, “fighting words,”186 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.188 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 (p. 2355)
ABSOLUTISTS: While it is sometimes suggested that the first amendment is absolute, even strong civil libertarians are likely to admit that the absolutist view is unworkable. As Professor Frederick Schauer has pointed out, absolute protection of expression would render unconstitutional “all of contract law, most of antitrust law, and much of criminal law.”‘ The need to distinguish protected from unprotected speech is inevitable. (p. 2356)
sui generis: 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. (p. 2357)
MESSAGE: In order to distinguish the worst, paradigm example of racist hate messages from other forms of racist and nonracist speech, three identifying characteristics are suggested here: 1. The message is of racial inferiority;
2. The message is directed against a historically oppressed group; and
3. The message is persecutorial, hateful, and degrading. (p. 2357)
MESSAGE: 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, persecutorial, hateful, and degrading. (p. 2358)
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 the unspeakable horror of the holocaust was wrong. We know white minority rule in South Africa is wrong. This knowledge is reflected in the universal acceptance of the wrong- ness of the doctrine of racial supremacy. (p. 2358)
MARXIST: Marxist speech, on the other hand, 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. (p. 2359)
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 again to the emerging outsider jurisprudence, 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.206 A range of legal interventions, including the use of tort law and criminal law principles, is appropriate to combat racist hate propaganda. While 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 dis-acquired,208 and law is the means by which the state typically provides incentives for changes in behavior. (pp. 2360-2361)
VII. HARD CASES I
n order to get beyond racism, we must first take account of race. There is no other way. Of course I emphasize different things, Doctor, because history has treated my people differently from yours. (p. 2361)
ANGRY NATIONALIST: Expressions of hatred, revulsion, and anger directed against historically dominant-group members 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. The harm and hurt is there, 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. (p. 2361)
While white-hating nationalist expressions are troublesome 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 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. (pp. 2361-2362)
B. First Variation: Anti-Semitism and Racism by Non-Whites What of hateful racist and anti-Semitic speech by non-whites? The phenomena 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. While I have argued here for tolerance of hateful speech that comes from an experience of oppression, 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 word play. Where this is the case, community members tend to have a clear sense of what is raciallydegrading and what is not. (pp. 2363-2364)
Second Variation: Zionism I reject the sweeping charge that Zionism is racism and argue in- stead for a highly contextualized consideration of Zionist speech. To the extent any racial hostility expressed within a Zionist context is a reaction to historical persecution, it is protected under the doctrinal scheme suggested in this Article. Should white Zionists ever lose the victim’s privilege? If Zionist speakers are white, do hateful, racebound 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 victim’s 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.
D. The Case of the Dead- Wrong Social Scientist == 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 predisposi- tion to violence, cultural lag, and race/ intelligence correlation fall into this category. (p. 2346)
QUE
STIONS: 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 credible evidence, 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. (p. 2365)
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 – like all signs – that have no meaning on their own, but that 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, then the sign is properly treated as action- able racist speech. (pp. 2365-2366)
F. The Cold Version of the Classic Forms of Anti-Semitism
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 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. (pp. 2366-2367)
ANTI-SEMITIC LITERATURE EXAMPLE: One recent summer, after giving a talk advocating restriction of hate speech, I was dutifully catching up on reading of academic junk mail – newsletters, book announcements, requests for contributions. I picked up a leaflet, professionally printed an 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 California 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.
G. Collections, Museums, Neutral Reportage, Humor, and Literary Realism
There are instances in which hate propaganda is deliberately spread by persons who are not themselves hatemongers. There are groups that preserve and disseminate hate propaganda for the purpose of educating the public of the evils of racism and anti-Semitism. There are groups and individuals who collect racist memorabilia for reasons of collectability, sometimes also claiming an educative function, and other times for reasons of fondness for ephemeras of evil. There are news reporters who repeat racist speech in order to report 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. (p. 2367)
EXAMPLE: 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 heartracing 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 comforting on the intellectual level. (p. 2368)
EXAMPLE: 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. Writer-Director Spike Lee’s recent film Do the Right Thing contains a rapid-fire sequence of racial epithets spoken by
characters from different racial groups in a Brooklyn neighbor- hood. The hyper-realism of the sequence offers an incisive anti-racist critique of racist speech. Similarly, Mark Twain, known as a great American writer and anti-racist, 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. There is a danger of some of the students missing entirely, as one commentator noted, the ironic message and simply enjoying a racist dialogue on its face.
SAFE HARBORS BEFORE ROCKING THE BOAT: The failure of school integration and the under-representation of African Americans in positions of authority in the schools increases the danger that Mark Twain’s realism, in some schools, will cause the kind of harm Twain himself would have abhorred. We need safe harbors before we begin rocking boats. (p. 2369)
EXAMPLE: A white teacher in Gould, Arkansas, resigned in tears after parental protests over her statement to boisterous school children that, “I 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 sixty 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 (p. 2369-2370)
H. The Special Case of Universities
A marked rise of racial harassment, hate speech, and racially motivated violence marks our entry into 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 next round of judicial opinions tangling with hate speech and the first amendment may well come from the universities. University administrators at public institutions are bound by the first amendment under state action doctrine. At private institutions, the principle of free speech is often evoked as a matter of ethics, regardless of whether the Constitution applies directly.
DEPENDENCE ON THE UNIVERSITY COMMUNITY: The university case raises unique concerns. Universities a
re 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. 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. (pp. 2369-2370)
TARGETS ON CAMPUS: Racist speech on campus occurs in a vastly different power context. Campus racism targets minority students and faculty. Minority students often come to the university at risk academically, socially, and psychologically.253 Minority faculty are typically untenured, overburdened, isolated, or even nonexistent, as is the case at several law schools.254 The marginalized position of minority faculty further marginalizes minority students.
(pp. 2371-2372)
DEPENDENCE ON THE UNIVERSITY COMMUNITY: 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 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 characterizes prison life make restriction of hate speech in prisons more important than in the population at large. (pp. 2371-2372)
VIII. THE UNINTENDED STORY: THE MEANING OF LEGAL PROTECTION OF RACIST HATE MESSAGES
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: (1) the limits of doctrinal imagination in creating first amendment exceptions for racist hate speech;
(2) the refusal to recognize the competing values of liberty and equality at stake in the case of hate speech; and
(3) the refusal to view the protection of racist speech as a form of state action.
INTEREST CONVERGENCE: The limits of lawmaking imagination of judges, legislators, and other legal insiders who have considered proposals to outlaw hate propaganda is symptomatic of Derrick Bell’s interest convergence theory. This limitation of imagination is a disability, a blindness, that prevents lawmakers from seeing that racist speech is a serious threat. Legal insiders cannot imagine a life disabled in a significant way by hate propaganda. (pp. 2374-2375)
SELECTIVE VISION & VICTIMIZATION: 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 is limited. 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. (p. 2376-2377)
ABSOLUTIST: 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.275 The principle of equality is violated by such allocation.276 The more progressive principle of rectification or reparation – the obligation to repair effects of historical wrongs – is even more grossly violated. (p. 2376)
ARTICLE SUMMARIZING: This Article 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 Article suggests a belief in the possibility and the necessity of creating a legal response to racist speech that transcends first amendment absolutism. We can attack racist speech – not because it isn’t really speech, not because it falls within a hoped-for neutral exception, but because it is wrong. (p. 2380)
LEGALIZED CULTURE: We are a legalized 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.