The Remedy is More Speech

The recent spate of incidents on college campuses involving the verbal expression of racist, sexist, anti-Semitic, and homophobic hatred has reignited a long-running debate in the history of free speech. Like flag burning, obscenity, and defamation of character, the derogation of people on the basis of their race, religion, or ethnicity -- known to the legal community as "group libel" -- has often been singled out as a candidate for exclusion from the protections of the First Amendment. Those who have urged curbs on group libel point out that the United States stands alone among the democracies of the world in tolerating such speech.

The controversy over "hate" speech stirs some of our deepest emotions. How can a society that claims to be civilized, and sensitive to the feelings and interests of all its people, permit a group of neo-Nazis to march in Skokie, Illinois -- home to a large cluster of Holocaust survivors -- or allow programs by the Ku Klux Klan to be broadcast over a Kansas City public access television channel? How can universities, committed to equality of educational opportunity and reasoned discourse, permit a University of Connecticut student to post a sign on her dormitory room door announcing that "homos," among others, are unwelcome to her room and will be "shot on sight," or a drunken group of University of Illinois students to taunt Jewish fraternity members with the chant that "Hitler had the right idea"?

Nearly half a century ago David Riesman, who later turned from law to sociology, wrote a classic series of articles in the Columbia Law Review arguing that group libel should not be considered legally protected speech (though he subsequently departed from that view with respect to the Skokie incident). A decade after the Ries-man articles, the U.S. Supreme Court, in a case involving the distribution of racist leaflets in Chicago (Beauharnais v. Illinois) upheld the constitutionality of an Illinois group libel law. That statute, however, was later removed from the books by the state legislature. By the time of Skokie in 1978, most courts, including the ones that decided the Skokie case, viewed restrictions on racially and religiously derogatory communication as violations of the First Amendment. Those decisions provoked a new round of writings in the early 1980s, such as a book by Donald Downs entitled Nazis in Skokie, and an essay by Richard Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," published in the Harvard Civil Rights and Civil Liberties Law Review, advocating that such speech be restricted. These were followed, at the end of the decade, by passionate appeals for regulation of racist speech from minority group law professors like Charles Lawrence at Stanford University and Maria Matsuda, writing in the Michigan Law Review.

Acting on such appeals, universities across the country -- from the University of Connecticut to the Universities of Michigan and Wisconsin to Stanford and the University of California system -- adopted group libel rules of various sorts. Some of these have been challenged and struck down by federal courts. Others remain the source of continuing controversy.

Whenever our society and our legal system have accepted limitations on the seemingly unqualified mandate of the First Amendment that there shall be no laws abridging freedom of speech and press, it has been because of some perceived competing interest that overcomes our concern for freedom of expression, usually combined with the perception that the speech in question is of little or no social value. As the U.S. Supreme Court said in Chaplinsky v. New Hampshire in 1942: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting words' -- those which by their very utterance inflict injury or tend to incite a breach of the peace.... such utterances are no essential part of any exposition of ideas, 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 call for curbs on racist speech maintain that it is both without social value and seriously harmful to the people who are its targets as well as to society at large. It has no social value, they say, because it is patently false and not really a "part of any exposition of ideas." It is merely an act of harassment which, though clothed in words, functions more like a physical blow than an invitation to dialogue.

The competing interests that outweigh the free expression of racism are said to be overwhelming. Racist speech may sometimes provoke violence, either against or from those subjected to it, leading to breaches of the peace that society has a right and responsibility to prevent. It may intimidate its targets into fearing for their physical safety, or it may create so much emotional distress for them that they are unable to function effectively as students, workers, or participants in whatever other environment they find themselves. Even short of such severe impairment, racist speech is still a psychological assault on self-esteem and personal identity, which no member of a community should have to endure.

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The answers to these seemingly compelling arguments are many, and even more compelling. The view of racist slurs as equivalent to physical blows ignores some crucial differences. A physical blow will hurt, no matter what the victim's state of mind; a verbal attack will hurt only if comprehended. If uttered in a foreign language, or in euphemisms equally unfamiliar, it will do no damage, for its meaning will not have been understood. It is the meaning that hurts, which is another way of saying that not only has an idea been communicated, but a very powerful and hateful one at that. If no meaningful idea were involved, there would be no injury.

It is internally contradictory to say that racist speech contains no ideas and has no value because it is false. A statement with no ideas cannot be false. Hitler's claims that the Aryans were a superior race and that an international Jewish conspiracy was controlling the world were harmful because they were false ideas, not because they lacked ideational content. When students pass out leaflets saying "Niggers go home," or chant that "Hitler had the right idea" they are uttering opinions that are hateful precisely because of the ideas they express.

We are dealing here with bad ideas, not physical blows or the absence of ideas. For that problem John Stuart Mill had the right answer long ago in his famous essay "On Liberty." He said that we must allow for the expression of bad ideas -- whether opinions or alleged statements of fact -- because they may contain some grain of truth that corrects the conventional wisdom or, lacking that, provide a challenge to accepted beliefs, without which those beliefs in the long run become mere prejudices. As Supreme Court Justice Louis Brandeis advised, in his famous Whitney v. California opinion in 1927, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

A proponent of restricting racist speech might concede that it does contain ideas and that there might even be some slight value in the expression of those ideas, but that on balance the harm they do still warrants their suppression. Yet a closer look at those harms and the competing interests they involve shows why this is not so.

It is clear that racist speech in some volatile situations may incite violence against its targets or provoke its targets to react violently. But that is not unique to racist speech. We have more generic, constitutionally permissible, prohibitions against direct incitement or provocation to immediate violence in contexts where violence is likely to occur. These restrictions, covering incitements of any sort, are adequate to deal with the relatively infrequent incidents of violence resulting from racist speech.

If anything, some of these prohibitions, such as the so-called "fighting words" doctrine that has been approved by the Supreme Court and adopted by the University of California system as its standard for restricting speech, may be too extensive, since they allow for the possibility of a "heckler's veto." Despised or unpopular speech that does not seek to start a fight may be suppressed because the audience threatens reactive violence. Under such a regime, any speech could be stopped by displeased listeners who threaten sufficient turmoil. What is more, the "fighting words" standard offers no protection to those targets of hate speech who are too weak or outnumbered to even consider beginning a fight.

A second harm that racist speech is alleged to cause, at least in some circumstances, is the physical intimidation of its targets. Again, this problem is not unique to racist speech, and generic, constitutionally permissible, remedies are available. The common law of assault punishes verbal attacks of any sort that place an individual in immediate apprehension of physical harm. It is illegal to send threats of physical injury through the U.S. mail. Federal civil rights law makes it a crime for two or more persons to "conspire to injure, oppress, threaten, or intimidate any citizens in the free exercise or enjoyment of any right or privilege secured to him by the Constitution."

There are also remedies specific to racial and sexual harassment in the workplace. Employees who have been subjected to patterns of verbal abuse by supervisors and fellow employees have won court judgments against the employer. One such case occurred in the State of Washington, where the Crown Zellerbach Company was found liable to a Mexican-American employee who, according to the state supreme court, had been "subjected to continuous humiliation and embarrassment by reason of racial jabs, slurs and comments ... by agents and employees of the defendant corporation." The same logic could well apply to a classroom situation in which a student is subjected to a similar pattern of verbal derogation by the teacher and other students.

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We must be cautious about such remedies, however, if and when they begin to spill over to circumstances where the instances of racist or sexist utterance are rare rather than part of a persistent pattern, and where there is no authority relationship present as between boss and employee or teacher and student. Key elements of the Washington Supreme Court decision in the Crown Zellerbach case, for example, were its finding that the victim was in a situation where he had to "remain in physical proximity" to people who were "continually" making racial slurs, and that the participation in this activity by a person in a position of authority over the target created the apprehension of discriminatory treatment that might well go beyond mere words.

We must also be wary of restrictions, such as those being adopted by some universities, that punish racist or sexist speech on the basis of vague criteria such as the creation of an "unpleasant" or "hostile" environment, rather than specific and demonstrable interference with a targeted individual's ability to function. Not that unpleasantness or discomfort resulting from the speech of others is benign. It is not a harm, however, from which people in a free, and often disputatious, society can be immunized. The supreme court of the State of New York recently made that point clear, in striking down as overbroad the state's harassment statute, which had been invoked against a nineteen-year old woman who had called a retarded neighbor woman a "bitch" and her retarded son a "dog" as they passed by her door. Absent a clear and present danger of material consequences, the court believed that such verbal abuse must be tolerated. That is a standard which universities, supposedly bastions of free inquiry, would do well to embrace.

To do otherwise would be to accept the proposition, offered as perhaps their most forceful argument by the advocates of restricting racist speech, that the emotional distress suffered by the victims of such communication is, in and of itself, a sufficient harm to justify an exception to First Amendment protections. That real emotional pain may be experienced by the targets of racially, religiously, or sexually abusive speech is undeniable, particularly when they feel their group to be vulnerable to oppression by those actually or potentially in power. But emotional pain is a highly subjective, individualized experience that can result from a wide range of stimuli, including not only explicit and deliberate verbal attacks but unintended slights and even vivid historical or fictional accounts of traumatic events.

Emotional pain can also be confounded and confused with other psychological states. Lawsuits for causing mental anguish were filed, for example, against the ABC network for its broadcast portrayal of the impact of a nuclear war, "The Day After," though what the plaintiffs had probably felt was less mental anguish than intense political disagreement. And in a suit for emotional distress arising out of the Skokie incident, a holocaust survivor and leader of the opposition to the Nazi march, who testified that the sight of marching Nazis would evoke intolerably painful memories of the execution of his parents, was found to have gone willingly to monitor other demonstrations by the neo-Nazis in the Chicago area. Apparently his opposition to their Skokie march was motivated more by anger than by pain.

This is not to denigrate the anger that he felt but to suggest that it is not the same as emotional hurt. Nor is emotional hurt the same for one black person in the face of verbal slurs and epithets as it is for another, nor of necessarily greater magnitude for a black than for a Jew, for a Jew than for a gay, or for a person with physical handicaps. It is for this reason that the U.S. Supreme Court rejected Jerry Falwell's claim against Hustler magazine for the intentional infliction of emotional distress, holding that in the area of political and social discourse any effort to determine the seriousness of alleged emotional harms has such "an inherent subjectiveness about it" that our courts should not engage in the process.

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Even if one were persuaded that banning racist speech is desirable to reduce harm, numerous practical consequences should give pause. Placing limitations on the verbal expression of group hatred does not make those attitudes disappear. More likely they will go underground to fester, and perhaps later erupt in more violent form. In the absence of their overt expression, society may grow complacent, thinking it has solved a problem that actually persists. The hidden enemy is more dangerous than one that is seen.

Those who are clever enough, instead of going underground, will express their hatred in more indirect and sophisticated ways, evading the prohibitions of the law while increasing the persuasiveness of their racist message by phrasing it in less repugnant terms. This is precisely what happened in Great Britain with a racist journal after passage of the Racial Relations Act of 1965. The law made it an offense to publish or distribute any matter that is "threatening, abusive, or insulting" aimed at fomenting "hatred against any section of the public in Great Britain distinguished by color, race, ethnic or national origins." The journal cleaned up its language and increased its circulation.

Prohibitions also turn censored material into "forbidden fruit" and the advocates of racism into martyrs. If speech or writing is banned, many will suppose there must be something important that those in power are afraid of. Curiosity, if nothing else, will lead some to find out for themselves what is being withheld or regulated. How many people who would not otherwise have done so went to see the movie 'The Last Temptation of Christ" or the Mapplethorpe art exhibit, because of the efforts made to suppress them? In France, National Front leader Jean-Marie Le Pen's success in garnering up to fifteen percent of the vote in recent elections may well have been due in part to the role of martyr he has played to the hilt as a result of the various legal actions brought against him for "inciting racial hatred."

Prohibitions on group libel may also perpetuate a sense of helplessness among the targets of racist speech. Instead of learning to defend themselves verbally, people who come to regard themselves as victims may depend upon authorities to protect them from verbal abuse. Children who respond to a schoolyard taunt by chanting, "Sticks and stones may hurt my bones, but names will never hurt me" may not be truthfully revealing all their inner feelings. But they are at least expressing a bravado that may be useful in deterring further abuse.

A final practical shortcoming of restrictions on racially, religiously, or sexually derogatory speech is that no matter how broadly they sweep in defining what is prohibited, they cannot, without entirely shredding the First Amendment, reach some of the insidious forms of racism and sexism that have been built into our very language. Are we going to outlaw such expressions as "black sheep," "blacklist," "blackball," "blackening someone's reputation," and "as different as black and white"? Are we going to decree that God may no longer be referred to as "He"? And make no mistake about it: it is an insidious influence on our ways of thinking for black to be so often associated with the bad and for "he" to serve as our generic pronoun.

To oppose restrictions on group libel is not to be insensitive to the problems of prejudicial attitudes and discriminatory conduct. On the contrary, it is to refocus our attention and energies away from superficial and counterproductive remedies to grapple with the underlying causes of group hatreds. Insofar as the verbal expression of those hatreds is concerned, our institutions of higher education, more than any other institutions in our society, have a responsibility and the resources to act on the advice of Justice Brandeis and answer evil speech with more and better speech. They should be sponsoring activities and setting examples, aimed at educating students for living harmoniously in a pluralistic society. If intergroup understanding is to be developed, our college and university administrators, faculty, and student leaders must play an active and vocal role in helping to make it happen.

But the roots of group hatreds stretch far beyond the reach of our educational institutions. They have entangled the world forever and plague us today, from Northern Ireland to the Middle East, from Ethiopia to South Africa. They are interwoven with problems of economic wealth and poverty, of political power and powerlessness, of psychological insecurity and fear. They will not be solved by writing laws and rules against racist speech.

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