I.
“As a thumbnail summary of the last two or three decades of speech issues in the Supreme Court,” the great First Amendment scholar Harry Kalven Jr. wrote in 1965 in The Negro and the First Amendment, “we may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us.” Surveying the legal scene in the heyday of the civil rights era, Kalven was confident that civil rights and civil liberties were marching in unison; that their mutual expansion represented, for a nation in a time of tumult, an intertwined destiny. He might have been surprised had he lived to witness the shifting nature of their relations. Today the partnership named in the rifle of his classic book seems hopelessly in disrepair. Civil liberties are regarded by many as a chief obstacle to civil rights. To be sure, blacks are still on the front lines of First Amendment jurisprudence—but this time we soldier on the other side. The byword among many black activists and black intellectuals is no longer the political imperative to protect free speech; it is the moral imperative to suppress “hate speech.”
Like such phrases as “pro-choice” and “pro-life,” the phrase “hate speech” is ideology in spansule form, It is the term-of-art of a movement, most active on college campuses and in liberal municipalities, that has caused many civil rights activists to rethink their allegiance to the First Amendment, the very amendment that licensed the protests, the rallies, the organization and the agitation that galvanized the nation in a recent, bygone era. Addressing the concerns of a very different time, the hate speech movement has enlisted the energies of some of our most engaged and interesting legal scholars. The result has been the proliferation of campus speech codes as well as municipal statutes enhancing penalties for bias crimes.
No less important, however, is the opportunity that this movement has provided, for those outside it, to clarify and to rethink the meaning of their commitment to the freedom of expression. It is an opportunity, I must say, that we have miserably bungled. Content with soundbites and one-liners, our deliberations on the subject have had all the heft of a talk-show monologue. Free speech? You get what you pay for.
The irony that lurks behind this debate, of course, is that the First Amendment may be the central article of faith in the civil religion of America, if America has a civic religion. “It’s a free country,” we say, and shrug; and what we usually mean is that you can say what you please. “Sticks and stones can break my bones,” we are taught to chant as children, “but words can never hurt me.” As Catharine MacKinnon writes with some asperity in Only Words, her new hook, Americans
are taught this view by about the fourth grade, and continue to absorb it through osmosis from everything around them for the rest of their lives… to the point that those who embrace it think it is their own personal faith, their own original view, and trot it out like something learned from their own personal lives every time a problem is denominated one of “speech,” whether it really fits or not.
The strongest argument for regulating hate speech is the unreflective stupidity of most of the arguments for the other side. I do not refer to the debate as it has proceeded in the law reviews, where you find a quality of caution, clarity and tentativeness that has made few inroads into the larger public discourse; the law professors who offer the best analysis of public discourse exert very little influence on it. And this leaves us with a familiar stalemate. On the one side are those who speak of “hate speech,” a phrase that alludes to an argument instead of making it; and to insist on probing further is to admit that you “just don’t get it.” On the other side are those who invoke the First Amendment like a mantra and seem immediately to fall into a trance, so oblivious are they to further discussion and evidence. A small number of anecdotes, about racism on campus or about P.C. inquisitions on campus, are endlessly recycled, and a University of Pennsylvania undergraduate named Eden Jacobowitz, of “water buffalo” fame, becomes a Dreyfus de nos jours.
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. We may come to think that the bad arguments are the only arguments, and when someone finally disabuses us of them, we may switch sides without ever considering the better arguments for staying put. That is why, for all the pleasures of demonology, the burgeoning literature urging the regulation of racist speech has a serious claim on our attention.
Now Westview Press has conveniently collected the three most widely cited and influential papers making the case for the regulation of racist speech. (The collection also includes a provocative essay by Kimberlè Williams Crenshaw about the conflicting allegiances posed by race and gender.) Gathered together for the first time, these essays—which originally appeared in law reviews over the past several years, and were circulated more widely through the samízdat of the photocopier—complement each other surprisingly well. Their proximity to each other casts light on their strengths and their weaknesses.
The authors of these proposals are “minority” law professors who teach at mainstream institutions—Mari J. Matsuda and Charles R. Lawrence III at Georgetown and Richard Delgado at the University of Colorado, They write vigorous and accessible prose. They are, one can fairly say, the legal eagles of the crusade against racist hate speech. But they are also, as the subtitle of their collection suggests, the principal architects of critical race theory, which is one of the most widely discussed trends in the contemporary legal academy; and their jointly written introduction to the volume serves as the clearest manifesto that the movement has yet received.
Critical race theory, we learn, owes its “social origins” to a student boycott of a Harvard Law School course in 1981. The course was called “Race, Racism and American Law,” and the university” failed to accede to student demands that it be taught by a person of color. Organizing an informal alternative course, students invited lawyers and law professors of color to lecture weekly on the topic. Crenshaw was one of the student organizers of the alternative course, Matsuda was one of its participants and Delgado and Lawrence were among its guest lecturers. And thus was formed the nucleus of “a small but growing group of scholars committed to finding new ways to think about and act in pursuit of racial justice.”
The intellectual ancestry of the movement is more complicated, but its two main progenitors are the brand of feminist theory associated with MacKinnon and the radical skepticism toward traditional black-letter pieties associated with critical legal studies. Almost invariably, the literature arguing for hate speech regulation cites MacKinnon as an authority and a model, and takes on one or more of the traditional legal distinctions (such as the distinction between “private” and “public”) whose dismantling is a staple of critical legal studies. So it is no surprise that conservative pundits denounce these theorists of hate speech as faddish foes of freedom. In fact, one could more accurately describe their approach as neotraditional. And those conservatives who dream of turning the cultural clock back to the ‘50s should realize that the First Amendment law of those years is precisely what these supposedly faddish scholars wish to revive.
For the conventional lay defense of free speech absolutism, and its concomitant attack on those who would curtail free speech, suffers from a bad case of historical amnesia. Just as Samuel Johnson thought he could refute Bishop Berkeley just by kicking a stone, the armchair absolutists often think that they can win the debate just by adducing the authority of the First Amendment itself. The invocation is generally folded together with a vague sort of historical argument. The First Amendment, we are told, has stood us in good stead through more than two centuries; and our greatness as a society may depend on it. The framers of the Constitution knew what they were doing, and (this is directed to those inclined to bog down in interpretative quibbles) in the end the First Amendment means what it says.
The only flaw of this uplifting and well-rehearsed argument is that it is false. Indeed, the notion that the First Amendment has been a historical mainstay of American liberty is an exemplary instance of invented tradition. To begin with, the First Amendment was not conceived as a protection of the free speech of citizens until 1931. Before then, the Court took the amendment at its word: “Congress shall make no law.…” Congress could not; but states and municipalities could do what they liked. And so it is no surprise that once the Supreme Court recognized freedom of expression as a right held by citizens, the interpretation of its scope still remained quite narrow. This changed after World War II, when the Warren Court gradually ushered in a more generous vision of civil liberties. So the expansive ethic that we call the First Amendment, the eternal verity that people either celebrate or bemoan, is really only a few decades old.
But the hate speech movement is not content with rehearsing the weaknesses in the absolutist position. It has also aligned itself with earlier traditions of jurisprudence—here the movement’s atavism is most obvious—by showing that the sort of speech it wishes to restrict falls into two expressive categories that the Supreme Court has previously held (and, the advocates of restrictions argue, correctly held) to be undeserving of First Amendment protection. The categories are those of “fighting words” and group defamation, as exemplified by cases decided in 1942 and 1952.
The doctrine of “fighting words” was promulgated by the Supreme Court in Chaplinsky v. New Hampshire (1942), in which the Court held that the Constitution did not protect “insulting or ‘fighting’ words—those that by their very utterance inflict injury or tend to incite an immediate breach of the peace.” “Such utterances are no essential part of any exposition of ideas,” Justice Murphy wrote for the majority, “and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Those who would regulate hate speech argue that racist abuse is a variety of, or “functionally equivalent to,” the sort of language that the Chaplinsky decision declared to be unprotected; indeed, the carefully drafted speech code adopted by Stanford University in 1990 explicitly extends only to “fighting words” or symbols, thus wearing its claim to constitutionality on its face. If Chaplinsky can shoulder the legal and ethical burdens placed upon it, the regulationists have a powerful weapon on their side.
Can it? Probably not. To begin with, it is an open question whether Chaplinsky remains, as they say, “good law.” For the Supreme Court, in the fifty years since Chaplinsky, has never once affirmed a conviction for uttering either “fighting words” or words that “by their very utterance inflict injury.” Indeed, in part because of this functional desuetude, in part because of the supposed male bias of the “breach of the peace” prong (men being more likely than women to throw a punch), the editors of the Harvard Law Renew recently issued a call for the doctrine’s explicit interment. So much for the doctrine’s judicial value.
The young scholars at the Harvard Law Review also note, with others, that statutes prohibiting “fighting words” have had discriminatory effects. An apparently not atypical conviction, upheld by the Louisiana state court, was occasioned by the following exchange between a white police officer and the black mother of a young suspect. He: “Get your black ass in the goddamned car.” She: “You goddamn motherfucking police—I am going to [the superintendent of police] about this.” No prize for guessing who was convicted for “fighting words.” As the legal scholar Kenneth Karst reports, “Statutes proscribing abusive words are applied to members of racial and political minorities more frequently than can be wholly explained by any special proclivity of those people to speak abusively.” So much for the doctrine’s political value.
Even if we finally reject the appeal to Chaplinsky, the hate speech movement can still link itself to constitutional precedent through the alternative model of group defamation. Indeed, the defamation model is more central, more weighty, in these arguments. And note that these are alternatives, not just different ways of describing the same thing, The “fighting words” or “assaultive speech” paradigm compares racist expression to physical assault: at its simplest, it characterizes an act of aggression between two individuals, victim and victimizer. The defamation paradigm, by contrast, compares racist speech to libel, which is an assault on dignity or reputation. The harm is essentially social; to be defamed is to be defamed in the eyes of other people.
Here the guiding precedent is justice Frankfurter’s majority opinion in the case of Beauharnais v. Illinois (1952), in which the Court upheld a conviction under an Illinois group libel ordinance. The ordinance was clumsily written, but it essentially prohibited public expression that “portrays depravity, criminality, unchastity or lack of virtue in a class of citizens of any race, color, creed or religion,” thereby exposing them to “contempt, derision or obloquy.” In Frankfurter’s opinion: “If an utterance directed at an individual may be the object of criminal sanctions we cannot deny to a state power to punish the same utterance directed at a defined group,” at least as long as the restriction related to the peace and well-being of the state.
Beauharnais v. Illinois has since fallen into judicial disrepute, having been reversed in its particulars by subsequent cases like the celebrated Sullivan v. New York Times. Indeed, more widely cited than Justice Frankfurter’s opinion is Justice Black’s dissent: “If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark: ‘Another such victory and I am undone.’” And yet Frankfurter’s claim for the congruence of individual libel and group libel is not implausible, and many critical race theorists argue for its resurrection. Thus MacKinnon urges “the rather obvious reality that groups are made up of individuals.” That is why “libel of groups multiplies rather than avoids the very same damage through reputation which the law of individual libel recognizes when done one at a time, as well as inflicting some of its own.”
What is wrong with the basic claim, endorsed by judges and scholars across the ideological spectrum, that group libel is just individual libel multiplied? Begin with the assumption that individual libel involves the publication of information about someone that is both damaging and false. Charles Lawrence III inadvertently directs us to the source of the problem. The racial epithet, he writes, “is invoked as an assault, not as a statement of fact that may be proven true or false.” But that suggests that the evaluative judgments characteristic of racial invective do not lend themselves to factual verification--and this is where the comparison with individual libel breaks down. The same problem emerges when MacKinnon identifies pornography as an instance of group defamation whose message is (roughly) that it would be nice if women were available for sexual exploitation. A proposition of that form may be right or wrong, but it cannot be true or false. You cannot libel someone by saying, “I despise you”; but that is precisely the message common to most racial epithets. “Nigger,” used in the vocative, is not usefully treated as group libel for the same reason that it is not usefully treated as individual libel.
II.
Critical race theory is strongest not when it seeks to establish a bridgehead with constitutional precedent, but when it frontally contests what has recently emerged as a central aspect of Supreme Court First Amendment doctrine: the principle of content and viewpoint neutrality. That principle is meant to serve as a guide to how speech can permissibly be regulated, ensuring basic fairness by preventing the law from favoring one partisan interest over another. So, for example, a law forbidding the discussion of race would violate the principle of content-neutrality, which is held to be a bad thing; a law forbidding the advocacy of black supremacy would violate the principle of viewpoint-neutrality, which is held to be a worse thing. When the Minnesota Supreme Court affirmed the content-sensitive hate speech ordinance at issue in RAV v. St. Paul, it cited Marl J. Matsuda’s work in reaching its conclusions. When Justice Scalia reversed and invalidated the ordinance on the grounds of viewpoint discrimination, he was implicitly writing against Matsuda’s argument. These are not mere conflicts of academic vision; these are arguments with judicial consequences.
Matsuda’s rejection of what she calls the “neutrality trap” is, to my mind, the most powerful element of her argument. Rather than trying to fashion neutral laws to further our social objectives, why not put our cards on the table and acknowledge what we know? As an example of where the neutrality trap leads, Matsuda cites the anti-mask statutes that many states passed “in a barely disguised effort to limit Ku Klux Klan activities”:
These statutes purportedly curer 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 or bank robbers are proffered for such statutes. The result of forgetting—or pretending to forget—the real reason for anti-mask legislation is farcical. Masks are used in protest against terrorist regimes for reasons both of 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 anti-mask statute.
I call here for an end of such unknowing. We know why state legislatures—those quirkily populist institutions—have passed anti-mask statutes. It in 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.
What makes Matsuda’s position particularly attractive is that she offers a pragmatic, pro-civil liberties argument for content-specificity:
The alternative to recognizing racist speech as qualitatively different because of its content in 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.
At the very least, this approach would promise a quick solution to the abuse of “fighting words” ordinances. Consider Matsuda’s own approach to legal sanctions lot racist speech. By way of distinguishing “the worst, paradigm example of racist hate messages from other forms of racist and non-racist speech,” she offers three identifying characteristics:
(1) The message is of racial inferiority.
(2) The message is directed against a historically oppressed group.
(3) The message is persecutory, hateful and degrading.
The third element, she says, is “related to the ‘fighting words’ idea”; and the first “is the primary identifier of racist speech”; but it is the second element that “attempts to further define racism by recognizing the connection of racism to power and subordination.”
The second element is the one that most radically departs from the current requirement that law be neutral as to content and viewpoint. But it would seem to forestall some of the abuses to which earlier speech ordinances have been put, simply by requiring the victim of the penalized speech to be a member of a “historically oppressed group.” Surely there is something refreshingly straightforward about the call for “an end to unknowing.”
Is Matsuda on to something? Not quite. Ironically enough, what trips up the content-specific approach is that it can never be content-specific enough. Take a second look at Matsuda’s three identifying characteristics of paradigm hate speech. First, recall, that the message is of racial inferiority. Now, Matsuda is clear that she wants her definition to encompass, inter alia, anti-Semitic and anti-Asian prejudice; but anti-Semitism (as the philosopher Laurence Thomas, who is black and Jewish, observes) traditionally imputes to its object not inferiority, but iniquity. Moreover, anti-Asian prejudice often more closely resembles anti-Semitic prejudice than it does anti-black prejudice. Surely anti-Asian prejudice that depicts Asians as menacingly superior, and therefore as a threat to “us,” is just as likely to arouse the sort of violence that notoriously claimed the life of Vincent Chin ten years ago in Detroit.
More obviously, the test of membership in a “historically oppressed” group is either too narrow (just blacks) or too broad (just about everybody). Are poor Appalachians, a group I knew well from growing up in a West Virginia mill town, “historically oppressed” or “dominant group members”? Once we adopt the “historically’ oppressed” proviso, I suspect, it is a matter of time before, a group of black women in Chicago are arraigned for calling a policeman a “dumb Polak.” Evidence that Poles are a historically oppressed group in Chicago will be in plentiful supply: the policeman’s grandmother will offer poignant firsthand testimony to that.
III.
The critique of neutrality would affect not simply how we draft our ordinances, but also how we conduct our litigation. One quickly moves from asking whether our statutes can or should be neutral to asking whether the adjudication of these statutes can or should be neutral. Indeed, many legal pragmatists, mainstream scholars and critical race theorists converge in their affirmation of the balancing approach toward the First Amendment and their corresponding skepticism toward what could he called the “Skokie school” of jurisprudence. When the American Civil Liberties Union defended the right of neo-Nazis to march in Skokie, a predominantly Jewish suburb of Chicago where a number of Holocaust survivors lived, they wished to protect and to fortify the constitutional right at issue. Indeed, they may have reasoned, if a civil liberty can be tested and upheld in so odious an exercise of it, then the precedent will strengthen it for all the less obnoxious cases where it may be disputed in the future. Hard cases harden laws.
The strategy of the Skokie school relies on a number of presuppositions that critical legal theorists and others regard as doubtful. Most importantly, it is premised on the neutral operation of principle in judicial decisionmaking. But what if judges really decided matters in an unprincipled and political way, and invoked principles only by way of window dressing? In cases close-run enough to require the Supreme Court to decide them, precedent and principle are elastic enough, or complex enough, that justices can often decide either way without brazenly contradicting themselves. And even if the justices want to make principled decisions, it may turn out that the facts of the case--in the real-world cases that come before them--are too various and complicated ever to be overdetermined by the rule of precedent, stare decisis. In either event, it could turn out that defending neo-Nazis was just defending neo-Nazis.
Moreover, it may be that the sort of formal liberties vouchsafed by this process are not the sort of liberties that we need most. Perhaps we have been overly impressed by the frisson of defending bad people for good causes, when the good consequences are at best conjectural and the bad ones real and immediate. Perhaps, these critics conclude, it is time to give up the pursuit of abstract principles and instead defend victims against victimizers, achieving your results in the here-and-now, not in the sweet hereafter.
There is something to this position, but it is, like the position it is meant to rebuff, overstated, Nadine Strossen of the ACLU can show, for example, that the organization’s winning First Amendment defense of the racist Father Terminiello in 1949 bore Fourteenth Amendment fruit when the ACLU was able to use the landmark Terminiello decision to defend the free speech rights of civil rights protesters in the ‘60s and ‘70s. Granted, this may not constitute proof, which is an elusive thing in historical argument, but such cases do provide good prima facie reason to drink that the Skokie school has pragmatic justification, not just blind faith, on its side.
Another problem with the abandonment of principled adjudication is what it leaves in its wake: the case-by-case balancing of interests. My point is not that “normal” First Amendment jurisprudence can completely eschew balancing, but there is a difference between employing it in background or in extremis and employing it as the first and only approach. An unfettered regime of balancing admits too much to judicial inspection. What we miss when we dwell on the rarefied workings of high court decisionmaking is the way in which laws exert their effects lower down the legal food chain. It’s been pointed out that when police arrest somebody for loitering or disorderly conduct, the experience of arrest--being hauled off to the station and fingerprinted before being released--often is the punishment. And “fighting words” ordinances have lent themselves to similar abuse. Anthony D’Amato, a law professor at Northwestern, makes a crucial and often overlooked point when he argues: “In some areas of law we do not want judges to decide cases at all--not justly or any other way. In these areas, the mere possibility of judicial decisionmaking exerts a chilling effect that can undermine what we want the law to achieve.”
But what if that chilling effect is precisely what the law is designed for? After all, one person’s chill is another person’s civility. It is clear, in any event, that all manner of punitive speech regulations are meant to have effects far beyond the classic triad of deterrence, reform and retribution.
IV.
The main appeal of speech codes usually turns out to be expressive or symbolic rather than consequential. That is, their advocates do not depend on the claim that a speech-code statute will spare certain groups some foreseeable amount of psychic trauma. They say, rather, that such a statute expresses a university’s opposition to hate speech and bigotry: and more positively, that it symbolizes a commitment to tolerance, to the creation of an educational environment in which mutual colloquy and comity are preserved.
In this spirit Matsuda writes that “a legal response to racist speech is a statement that victims of racism are valued members of our polity,” and that “in a society that expresses its moral judgments through the law,” the “absence of laws against racist speech is telling,” In this same spirit Delgado suggests that a tort action for racist speech would have the effect of “communicating to the perpetrator and to society that such abuse will not be tolerated either by its victims or by the courts” (italics mine). And also in this spirit Thomas Grey, the Stanford law professor who helped draft the campus speech regulations there, counsels that “authorities make the most effective statement when they are honestly concerned to do something beyond making a statement,” thus “putting their money where their mouth is.” The punitive function of speech codes is thus enlisted to expressive means, as a means of bolstering the credibility of the anti-racist statement.
Still, once we have admitted that the regulation of racist speech is partly or wholly a symbolic act, we must register the force of the other symbolic considerations that may come into play. Thus, even if you think that the notion of free speech contains logical inconsistencies, you need to register the symbolic force of its further abridgement. And it is this level of scrutiny that may tip the balance in the other direction. The controversy over flag-burning is a good illustration of the two-edged nature of symbolic arguments. Safeguarding the flag may symbolize something nice for some of us, but safeguarding our freedom to burn the flag symbolizes something nicer for others of us.
Note, too, that the expressivist position suffers from an uncomfortable contradiction. A university administration that merely condemns hate speech, without mobilizing punitive sanctions, is held to have done little, to have offered “mere words.” And yet this skepticism about the power of “mere words” comports oddly with the attempt to regulate “mere words” that, since they are spoken by those not in a position of authority, would seem to have even less symbolic force. Why is it “mere words” when a university only condemns racist speech, but not “mere words” that the student utters in the first place? Whose words are “only words”? Why are racist words deeds, but anti-racist words just lip service?
And is the verbal situation really as asymmetrical as it first appears? Surely the rebuke “racist” also has the power to wound. One of the cases that arose under the University of Michigan speech code involved a group discussion at the beginning of a dentistry class, in which the teacher, a black woman, sought to “identify concerns of students,” A student reported that he had heard, from his roommate, who was a minority, that minority students had a hard time in the class and were not treated fairly. In response, the outraged teacher lodged a complaint against the student for having accused her (as she perceived it) of racism. For this black woman, at least, even an indirect accusation of racism apparently had the brunt of racial stigmatization.
One other paradox fissures the hate speech movement. Because these scholars wish to show that substantial restrictions on racist speech are consistent with the Constitution, they must make the case that racist speech is sui generis among offensive or injurious utterances; otherwise the domain of unprotected speech would mushroom beyond the point of constitutional and political plausibility. “Words That Wound,” the title of Delgado’s pioneering essay, designates a category that includes racist speech but is scarcely exhausted by it. Nor could we maintain that racist insults, which tend to be generic, are necessarily more wounding than an insult tailor-made to hurt someone: being jeered at for your acne or your obesity may be far more hurtful than being jeered at for your race or your religion.
Alert to this consideration, scholars like Matsuda, Lawrence and Delgado argue that racist speech is peculiarly deserving of curtailment precisely because it participates in (and is at least partly constitutive of) the larger structures of racism that are “hegemonic” in our society. “Black folks know that no racial incident is ‘isolated’ in the United States,” writes Lawrence:
That is what makes the incidents so horrible, so scary, it is the knowledge that they are not the isolated unpopular speech of a dissident few that makes them so frightening. These incidents are manifestations of a ubiquitous and deeply ingrained cultural belief system, an American way of life.
To this consideration Matsuda annexes the further argument that what distinguishes racist speech from other forms of unpopular speech is “the universal acceptance of the wrongness of the doctrine of racial supremacy.” Unlike Marxist speech, say, racist speech is “universally condemned.”
At first blush, this is a surprising claim. After all, if racist speech really were universally rejected, ordinances against it would be an exercise in antiquarianism. And yet there is something in what Matsuda says: a shared assumption about the weight of the anti-racist consensus, a conviction that at least overt racists are an unpopular minority, that authority is likely to side with us against them. This hopeful conviction about the magnitude of racist expression in America provides the hidden and rather unexpected foundation for the hate speech movement. Why would you entrust authority with enlarged powers of regulating the speech of unpopular minorities, unless you were confident that the unpopular minorities would be racists, not blacks? Lawrence may know that racial incidents are never “isolated,” but he must also believe them to be less than wholly systemic. You don’t go to the teacher to complain about the school bully unless you know that the teacher is on your side.
The tacit confidence of critical race theory in the antiracist consensus also enables its criticism of neutral principles. This becomes clear when one considers the best arguments in favor of such principles. Thus David Coles, a law professor at Georgetown University, suggests that
in a democratic society the only speech government is likely to succeed in regulating will be that of the politically marginalized. If an idea is sufficiently popular, a representative government will lack the political wherewithal to suppress it, irrespective of the First Amendment. But if an idea is unpopular, the only thing that may protect it from the majority, is a strong constitutional norm of content-neutrality.
Reverse his assumptions about whose speech is marginalized and you stand the argument on its head. If blatantly racist speech is unpopular and stigmatized, a strong constitutional norm of content-neutrality may be its best hope for protection. For these critics, however, that is a damning argument against content-neutrality. This, then, is the political ambiguity that haunts the new academic activism. “Our colleagues of color, struggling to carry the multiple burdens of token representative, role model and change agent in increasingly hostile environments, needed to know that the institutíons ín whích they worked stood behind them,” declare our critical race theorists in their joint manifesto. Needed to know that the institutions in which they worked stood behind them: I have difficulty imagining this sentiment expressed by activists in the ‘60s, who defined themselves in a proudly adversarial relation to authority and its institutions. Here is the crucial difference this time around. The contemporary aim is not to resist power, but to enlist power.
V.
“Critical race theory challenges ahistoricism and insists on a contextual / historical analysis of the law.” So states the manifesto, and it is not necessarily a bad principle. What it suggests to me, however, is that we get down to cases, and consider, as these theorists do not, the actual results of various regimes of hate speech regulation.
Surveying United Nations conventions urging the criminalization of racist speech, Matsuda bemoans the fact that the United States, out of First Amendment scruple, has declined fully to endorse such resolutions. By contrast, she commends to our attention nations such as Canada and the United Kingdom. Canada’s appeal to the hate speech movement is obvious; after all, the new Canadian Bill of Rights has not been allowed (as Matsuda observes) to interfere with its national statutes governing hate propaganda. And Canada’s Supreme Court has recently promulgated MacKinnon’s statutory definition of pornography as the law of the land. What you don’t hear from the hate speech theorists is that the first casualty of the MacKinnonite anti-obscenity ruling was a gay and lesbian bookshop in Toronto, which was raided by the police because of a lesbian magazine it carried. (Homosexual literature is a frequent target of Canada’s restrictions on free expression.) Nor are they likely to mention that in June copies of Black Looks: Race and Representation by the well-known black feminist scholar Bell Hooks, a book widely assigned in women’s studies courses, was confiscated by Canadian authorities as possible “hate literature.” Is the Canadian system really a beacon of hope?
Even more perplexing, especially in the context of an insistence on challenging ahistoricism and attending to context, is the nomination of Britain as an exemplar of a more enlightened free speech jurisprudence. Does anyone believe that racism has subsided in Britain since the adoption of the 1965 Race Relations Act forbidding racial defamation? Or that the legal climate in that country is more conducive to searching political debate? Ask any British newspaperman about that. When Harry Evans, then editor of the London Times, famously proclaimed that the British press was, by comparison to ours, only “half-free,” he was not exaggerating much. The result of Britain’s judicial climate is to make the country a net importer of libel suits launched by tycoons who are displeased with their biographers. Everyone knows that a British libel suit is like a Rent divorce. It is rather a mordant irony that American progressives should propose Britain, and its underdeveloped protection of expression, as a model to emulate at a time when many progressives in Britain are agitating for a bill of rights and broad First Amendment-style protections.
And what of speech codes on American campuses? The record may surprise some advocates of regulations. “When the ACLU enters the debate by challenging the University of Michigan’s efforts to provide a safe harbor for its Black, Latino and Asian students,” Lawrence writes, “we should not be surprised that nonwhite students feel abandoned.” In light of the actual record of enforcement, however, the situation might be viewed differently. During the year in which Michigan’s speech code was enforced, more than twenty blacks were charged--by whites--with racist speech. As Strossen notes, not a single instance of white racist speech was punished, a fact that makes Lawrence’s talk of a “safe harbor” seem more wishful than informed.
At Michigan, a full disciplinary hearing was conducted only in the case of a black social work student who was charged with saying, in a class discussion of research projects, that he believed homosexuality was an illness, and that he was developing a social work approach to move homosexuals toward heterosexuality. (“These charges will haunt me for the rest of my life,” the student claimed in a court affidavit.) By my lights, this is a good example of how speech codes kill critique. I think that the student’s views about homosexuality (which may or may not have been well-intentioned) are both widespread and unlikely to survive intellectual scrutiny. Regrettably, we have not yet achieved a public consensus in this country on the moral legitimacy (or, more precisely, the moral indifference) of homosexuality. Yet it may well be that a class on social work is not an inappropriate forum for a rational discussion of why the “disease” model of sexual difference has lost credibility among social scientists. (In a class on social work, this isn’t P.C:. brainwashing, this is education.) The trouble is, you cannot begin to conduct this conversation when you outlaw the expression of the view that you would criticize.
Critical race theorists are fond of the ideal of conversation. “This chapter attempts to begin a conversation about the First Amendment,” Matsuda writes toward the end of her contribution. “Most important, we must continue this discussion,” Lawrence writes toward the end of his. It is too easy to lose sight of the fact that the conversation to which they are devoted is aimed at limiting conversation. If there are costs to speech, then there are costs also to curtailing speech, often unpredictable ones.
Speech codes, to be sure, may be more narrowly and responsibly tailored, and the Stanford rules—carefully drafted by scholars, like Thomas Grey, with civil libertarian sympathies—have rightly been taken as a model of such careful delimitation. For rather than following the arguments against racist speech to their natural conclusion, the Stanford rules prohibit only insulting expression that conveys “direct and visceral hatred or contempt” for people on the basis of their sex, race, color, handicap, religion, sexual orientation or national and ethnic origin, and that is “addressed directly to the individual or individuals whom it insults or stigmatizes.”
Chances are, the Stanford rule won’t do much harm. Chances are, too, it won’t do much good. As tong as the eminently reasonable Grey is drafting and enforcing the restrictions, I won’t lose much sleep over it. Yet we must be clear how inadequate the code is as a response to the powerful arguments that were marshaled to support it. Contrast the following two statements addressed to a black freshman at Stanford:
(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 the fact 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 tong downhill slide.
(B) Out of my lace, jungle bunny.
Surely there is no doubt which is likely to be more “wounding” and alienating to its intended audience. Under the Stanford speech regulations, however, the first is protected speech, and the second may well not be: a result that makes a mockery of the word-that-would rationale.
If you really want to penalize such wounding words, it makes no sense to single out gutter epithets--which, on many college campuses, are more likely to stigmatize the speaker than their intended victim--and leave the far more painful disquisition alone. In American society today, the real power commanded by racism is likely to vary inversely with the vulgarity with which it is expressed. Black professionals soon learn that it is the socially disfranchised--the lower class, the homeless-who are most likely to hail them as “niggers.” The circles of power have long since switched to a vocabulary of indirection. Unfortunately, those who pit the First Amendment against the Fourteenth Amendment invite us to worry more about speech codes than coded speech.
I suspect that many of those liberals who supported Stanford’s restrictions on abusive language did so because they thought it was the civil thing to do. Few imagined that, say, the graduation rates or GPAs of Stanford’s blacks (or Asians, gays, and so on) are likely to rise significantly as a result. Few imagined, that is, that the restrictions would lead to substantive rights or minority empowerment. They just believed that gutter epithets violate the sort of civility that ought to prevail on campus. In spirit, then, the new regulations were little different from the rules about curfews, drinking or the after-hours presence of women in male dormitories that once governed America’s campuses and preoccupied their disciplinary committees.
Not that rules about civility are without value. Lawrence charges that civil libertarians who disagree with him about speech regulations may be “unconscious racists.” I don’t doubt this is so; I don’t doubt that some of those who support speech codes are unconscious racists. What I doubt is whether the imputation of racism is the most effective way to advance the debate between civil rights and civil liberties.
VI.
“What is ultimately at stake in this debate is our vision for this society,” write the authors of Words That Wound, and they are right. In parsing the reasoning of the movement against hate speech, it is essential that we not miss the civic forest for the legal trees. Far beyond the wrangling over particular statutes and codes lies an encompassing vision of state and civil society. And its wellsprings are to be found not in legal scholarship or critical theory, but in the more powerful cultural currents identified with the “recovery movement.”
At the vital center of the hate speech movement is the seductive vision of the therapeutic state. This vision is presaged in the manifesto itself:
Too often victims of hate speech find themselves without the words to articulate what they see, feel and know. In the absence of theory mid analysis that give them a diagnosis and a name for the injury they have suffered, they internalize the injury done them and are rendered silent in the fact of continuing injury. Critical race theory names the injury and identifies its origins.
This sounds, of course, like a popular primer on how psychotherapy is supposed to work; with a few changes, the passage might be addressed to survivors of toxic parenting. Indeed, “alexa-thymia”—the inability to name and articulate one’s feelings--is a faddish diagnosis in psychiatry these days. Nor is critical race theory’s affinity with the booming recovery industry a matter of chance. These days the recovery movement is perhaps the principal source of resistance to the older and much-beleaguered American tradition of individualism.
“When the ideology is deconstructed and injury is named, subordinated victims find their voices,” the manifesto asserts. “They discover they are not alone in their subordination. They are empowered.” Here the recovery/ survivor-group paradigm leads to a puzzling contradiction, We are told that victims of racist speech are cured—that is, empowered—when they learn they are “not alone” in their subordination, but subordinated as a group. But elsewhere we are told that what makes racist speech peculiarly wounding is that it conveys precisely the message that you are a member of a subordinated group. How can the suggestion of group subordination be the poison and the antidote?
The therapeutic claims made for critical race theory cut against the hate speech offensive in more important ways. For if we took these claims at face value, critical race theory would not buttress speech regulations, it would obviate the need for them. The problem about which Lawrence worries, that racist speech “silenc[es] members of those groups who are its targets,” would naturally be addressed not through bureaucratic regulations, but through the sort of deconstruction and critique that will enable victims, according to critical race theory, to “find their voices.” And here lies another painful irony. All this sounds very much like Justice Brandeis’s hoary and much-scorned prescription for redressing harmful speech: “more speech.”
Scholars such as Delgado and Matsuda understandably emphasize the adverse psychological effects of racial abuse. “Because they constantly hear racist messages, minority children, not surprisingly, come to question their competence, intelligence and worth,” Delgado writes. And he further notes that the psychic injuries incurred by racist speech have additional costs down the road: “The person who is timid, withdrawn, bitter, hypertense or psychotic will almost certainly fare poorly in employment settings.” (As a member of the Harvard faculty, I would venture that there are exceptions to this rule.) But the proposed therapeutic regime is no mere talking cure. Indeed, in the Republic of Self-Esteem, we are invited to conceive of the lawsuit as therapy. “When victimized by racist language,” Delgado explains, “victims must be able to threaten and institute legal action, thereby relieving the sense of helplessness that leads to psychological harm.”
A similar therapeutic function could be played by criminal proceedings, in Matsuda’s view. When the government does nothing about racist speech, she argues, it actually causes a second injury. “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.” In fact, “The government’s denial of personhood through its denial of legal recourse may even be more painful than the initial act of hatred.” Of course, what this grievance presupposes is that the state is there, in loco parentis, to confer personhood in the first place. Finally Matsuda must repair not to an instrumental conception of the state, but to a conception of it as the “official embodiment of the society we live in,” which is rather remote and abstracted from the realities of our heterogeneous populace, with its conflicting norms and jostling values.
Psychotherapy cannot do the hard work of politics. Yet a similar therapeutic vision animates the more broad-gauged campus regulations such as those adopted in the late 1980s at the University of Connecticut. These rules sought to proscribe such behavior as, inter alia:
Treating people differently solely because they are in some way different from the majority.…
Imitating stereotypes in speech or mannerisms.…
Attributing objections to any of the above actions to “hypersensitivity” of the targeted individual or group.
That last provision was especially cunning. It meant that even if you believed that a complainant was overreacting to an innocuous remark, the attempt to defend yourself in this way would serve only as proof of your guilt.
The rationale of the university’s rules was made explicit in its general prohibition on actions that undermined the “security or self-esteem” of persons or groups. (Would awarding low grades count?) Not surprisingly, the university’s expressed objective was to provide “a positive environment in which everyone feels comfortable working or living.” It was unclear whether any provisions were to be made for those who did not feel “comfortable” working or living under such restrictive regulations. In any event, they were later dropped under threat of legal action.
It may be that widespread skepticism about the distinction between the public and the private made it inevitable that the recovery movement would translate into a politics; and that this politics would center on a vocabulary of trauma and abuse, in which the verbal forms and the physical forms are seen as equivalent. Perhaps it was inevitable that the citizen at the center of the political theory of the Enlightenment would be replaced by the infant at the center of modern depth psychology, and its popular therapeutic variants. The inner child may hurt and grieve, as we have been advised. But may the inner child also vote?
VII.
What cannot be side-stepped, finally, is the larger question, the political question, of how we came to decide that our energies were best directed not at strengthening our position in the field of public discourse, but at trying to move its boundary posts. I detect two motivations.
In the academy, there has been increased attention to the formative power of language in the construction of our social reality, to language as “performative,” as itself counting as action and constituting a “speech act.” These are phrases and ideas that are owed to ordinary language philosophy, of the kind that the Oxford philosopher J.L. Austin developed in the middle of the century, but now MacKinnon adds them to her argumentative arsenal in her latest book. The notion of the speech act certainly acquires new force when the act in question is rape.
MacKinnon’s emphasis on the realness, the act-like nature, of expression receives an interesting twist in the attempt by some hate speech theorists to “textualize” the Fourteenth Amendment. If expression is act, then act must be expression. If the First Amendment is about speech, then so, too, is the Fourteenth Amendment. Following this reasoning, Lawrence has proposed in an influential reinterpretation of legal history that Brown v. Board, and, by analogy, all subsequent civil rights decisions and legislation, are in fact prohibitions on expressive behavior. In Lawrence’s reading, they forbid not racism, but the expression of racism. In line with this argument, he tells us that “discriminatory conduct is not racist unless it also conveys the message of white supremacy,” thus contributing to the social construction of racism.
This is a bold and unsettling claim, which commits Lawrence to the view that in the case of discriminatory conduct, the only crime is to get caught. By this logic, racial redlining by bankers is not racist unless people find out about it. And the crusading district attorney who uncovers hidden evidence of those bankers’ discrimination is not to be hailed as a friend of justice, after all: by bringing it to light, he was only activating the racist potential of those misdeeds. Should anti-discrimination policy be founded, then, on the principle of “don’t ask, don’t tell”?
Lawrence’s analysis of segregation reaches the same surprising conclusion: “The nonspeech elements are byproducts of the main message rather than the message being simply a byproduct of unlawful conduct.” By this logic, poverty is not really about material deprivation: it is really about the message of class inequality. We might conclude, then, that the problem of economic inequality would most naturally be redressed by promulgating a self-affirmative lower-class identity along the lines of Poverty Is Beautiful. Words may not be cheap, but they are much less costly than AFDC and job training programs.
Something, let us agree, has gone very wrong. The pendulum has swung from the absurd position that words don’t matter to the equally absurd position that only words matter. Critical race theory, it appears, has fallen under the sway of a species of academic nominalism. Yes, speech is a species of action. Yes, there are some acts that only speech can perform. But there are some acts that speech alone cannot accomplish. You cannot heal the sick by pronouncing them well. You cannot lift up the poor by declaring them rich.
In their manifesto, the authors of Words That Wound identify their fight as “a fight for a constitutional community where ‘freedom’ does not implicate a right to degrade and humiliate another human being.” These are heady words. Like much sweepingly utopian rhetoric, however, they invite a regime so heavily policed as to be incompatible with democracy. Once we are forbidden verbally to degrade and to humiliate, will we retain the moral autonomy to elevate and to affirm?
In the end, the preference for the substantive liberties supposedly vouchsafed by the Fourteenth Amendment over the formal ones enshrined in the First Amendment rehearses the classic disjunction that Isaiah Berlin analyzed a generation ago in “Two Conceptions of Liberty,” but without having learned from him. Berlin’s words have aged little. “Negative” liberty, the simple freedom from external coercion, seemed to him
a truer and more humane ideal than the goals of those who seek in the great, disciplined, authoritarian structures the ideal of “positive” self-mastery by classes, or peoples or the whole of mankind. It is truer, because it recognizes the fact that human goals are many not all of them commesurable, and in perpetual rivalry with one another.
To suggest, as the critical race theorists do, that equality must precede liberty is simply to jettison the latter without securing the former. The First Amendment may not secure us substantive liberties, but neither will its abrogation.
It is not hard to explain the disenchantment among minority critics with such liberal mainstays as the “marketplace of ideas” and the ideal of public discourse. I take their disenchantment to be a part of a larger crisis of faith. The civil rights era witnessed the development of a national consensus--hammered out noisily, and against significant resistance--that racism, at least overt racism, was wrong. Amazingly enough, things like reason, argument and moral suasion did play a significant role in changing attitudes toward “race relations.” But what have they done for us lately?
For all his good sense, Harry Kalven Jr. was spectacularly wrong when he wrote: “One is tempted to say that it will be a sign that the Negro problem has basically been solved when the Negro begins to worry about group libel protection.” Quite the contrary. The disillusionment with liberal ideology that is now rampant among many minority scholars and activists stems from the lack of progress in the struggle for racial equality over the past fifteen years. Liberalism’s principle of formal equality seems to have led us so far, but no further. As Patricia J. Williams observes, it “put the vampire back in its coffin but it was no silver stake.”
The problem may be that the continuing economic and material inequality between black America and white America, and the continuing immiseration of large segments of black America, cannot be erased simply through better racial attitudes. Poverty, white and black, can take on a life of its own, to the point that removing the conditions that caused it can do little to alleviate it. The ‘80s may have been the “Cosby Decade,” but you wouldn’t know it from the South Bronx. It has become clear, in other words, that the political economy of race and poverty can no longer be reduced to a mirror of what whites think of blacks.
In some ways the intellectuals have not caught up to this changing reality. Generals are not the only ones who are prone to fight the last war. Rather than responding to the grim new situation with new and subtler modes of socioeconomic analysis, we have finessed the gap between rhetoric and reality by forging new and subtler definitions of the word “racism.” Hence a new model of institutional racism is one that can operate in the absence of actual racists. By redefining our terms, we can always say of the economic gap between black arid white America: the problem is still racism … and, by stipulation, it would be true. But the grip of this vocabulary has tended to foreclose the more sophisticated models of political economy that we so desperately need. I cannot otherwise explain why some of our brightest legal minds believe that substantive liberties can be vouchsafed and substantive inequities redressed by punishing rude remarks; or why their analysis of racism owes more to the totalizing theory of Catharine MacKinnon than to the work of scholar-investigators like Douglas Massey or William Julius Wilton or Gary Orfield—people who, whatever their differences, are attempting to discover how things work in the real world, never confusing the empirical with the merely anecdotal.
Critical race theory has served, then, as a labor-saving device. For if racism can be fully textualized, if its real existence is in its articulation, then racial inequity can be prized free from the moss and soil of political economy. “Gender is sexual,” MacKinnon wrote in Toward a Feminist Theory of the State. “Pornography constitutes the meaning of that sexuality.” By extension, racist speech must prove to be the real content of racial subordination: banish it, and you banish subordination. The perverse result is a see-no-evil, hear-no-evil approach toward racial inequality. Unfortunately, even if hate did disappear, aggregative patterns of segregation and segmentation in housing and employment would not disappear. And conversely, in the absence of this material and economic gap, not many people would care about racist speech.
Beliefs that go untested and unchallenged cannot prosper. The critical race theorists must be credited with helping to reinvigorate the debate about freedom of expression; the intelligence, the innovation and tile thoughtfulness of their best work deserve a reasoned response, and not, as so often happens, demonization and dismissal. And yet, for all the passion and all the scholarship that the critical race theorists have expended upon the problem of hate speech, I cannot believe that it will capture their attention for very much longer “It is strange how rapidly things change,” wrote Kalven in 1965. “Just a little more than a decade ago we were all concerned with devising legal controls for the libeling of groups.… Ironically, once the victory was won, the momentum for such legal measures seemed to dissipate, and the problem has all but disappeared from view.” It is strange how rapidly things change—and change back. But the results, I suspect, will be similar this time around. The advocates of speech restrictions will grow disenchanted not with their failures, but with their victories, and the movement wilt come to seem yet another curios byway in the long history of our racial desperation.
And yet the movement will not have been without its political costs, I cannot put it better than Charles Lawrence himself, who writes: “I fear that by framing the debate as we have—as one in which the liberty of free speech is in conflict with the elimination of racism—we have advanced the cause of racial oppression and placed the bigot on the moral high ground, tanning the rising flames of racism.” He does not intend it as such, but I read this passage as a harsh rebuke to the movement itself. As the critical race theory manifesto acknowledges, “This debate has deeply divided the liberal civil rights/civil liberties community.” And so it has. It has created hostility, between old allies and fractured longtime coalitions. Was it worth it? Justice Black’s words may return, like the sound of an unheeded tocsin, to haunt us: “Another such victory and I am undone.”