Must We Defend Nazis?: Why the First Amendment Should Not Protect Hate Speech and White Supremacy
181
Must We Defend Nazis?: Why the First Amendment Should Not Protect Hate Speech and White Supremacy
181eBook
Available on Compatible NOOK devices, the free NOOK App and in My Digital Library.
Related collections and offers
Overview
A controversial argument for reconsidering the limits of free speech
Swirling in the midst of the resurgence of neo-Nazi demonstrations, hate speech, and acts of domestic terrorism are uncomfortable questions about the limits of free speech. The United States stands apart from many other countries in that citizens have the power to say virtually anything without legal repercussions. But, in the case of white supremacy, does the First Amendment demand that we defend Nazis?
In Must We Defend Nazis?, legal experts Richard Delgado and Jean Stefancic argue that it should not. Updated to consider the white supremacy demonstrations and counter-protests in Charlottesville and debates about hate speech on campus and on the internet, the book offers a concise argument against total, unchecked freedom of speech.
Delgado and Stefancic instead call for a system of free speech that takes into account the harms that hate speech can inflict upon disempowered, marginalized people. They examine the prevailing arguments against regulating speech, and show that they all have answers. They also show how limiting free speech would work in a legal framework and offer suggestions for activist lawyers and judges interested in approaching the hate speech controversy intelligently.
As citizens are confronting free speech in contention with equal dignity, access, and respect, Must We Defend Nazis? puts aside clichés that clutter First Amendment thinking, and presents a nuanced position that recognizes the needs of our increasingly diverse society.
Product Details
| ISBN-13: | 9781479830749 |
|---|---|
| Publisher: | New York University Press |
| Publication date: | 11/21/2023 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 181 |
| File size: | 441 KB |
About the Author
Richard Delgado is John J. Sparkman Chair of Law at the University of Alabama and one of the founders of critical race theory. His books include The Latino/a Condition: A Critical Reader (coedited with Jean Stefancic) and The Rodrigo Chronicles.
Jean Stefancic (Author)
Jean Stefancic is Professor and Clement Research Affiliate at the University of Alabama School of Law. Her books include No Mercy: How Conservative Think Tanks and Foundations Changed America’s Social Agenda. She and Delgado edited Critical Race Theory: The Cutting Edge.
Read an Excerpt
CHAPTER 1
THE HARMS OF HATE SPEECH
A prime obstacle to reforming hate-speech law is the insistence by some that these forms of speech are harmless or that tolerating them is "the price we pay" for living in a free society. This chapter provides evidence that they are not at all harmless, and that free-speech ideology needs to change to recognize and deal with the harms they produce.
In Snyder v. Phelps (the Westboro Baptist Church case), a group of marchers from a fringe organization gathered on the street outside a funeral service being held to honor a war veteran in Maryland. Their protest had little to do with the war or the particular veteran who died in it. Instead, they picketed and marched to protest the American public's increasing acceptance of homosexuality, which they considered a sin. Deeply upset by what he considered the desecration of a solemn moment, the veteran's father sued for intentional infliction of emotional distress, defamation, and a few other counts. He described that he had become upset, tearful, angry, and physically nauseated to the point that he had to vomit. He stated that the defendants had rendered him unable to think of his son without thinking of the protesters' actions, adding, "I want so badly to remember all the good stuff ... but it always turns into the bad." Several expert witnesses testified that the defendants' behavior had worsened Phelps's diabetes and caused him to sink into depression.
A jury awarded him a considerable sum, but the Court of Appeals and Supreme Court reversed on the ground that the picketers' speech concerned a matter (treatment of homosexuals) of public interest and took place on public property — the street.
Earlier, in Contreras v. Crown Zellerbach, the Washington Supreme Court had held that a Mexican American's allegations that fellow employees had subjected him to a campaign of racial abuse stated a valid claim against his employer for the tort of outrage (an alternative name for the tort of infliction of emotional distress). The plaintiff alleged that he had suffered "humiliation and embarrassment by reason of racial jokes, slurs and comments" and that the defendant's agents and employees had wrongfully accused him of stealing the employer's property, thereby preventing him from gaining employment and holding him up to public ridicule. Focusing on the racial abuse, the court declared that "racial epithets which were once part of common usage may not now be looked upon as mere insulting language."
Only eleven months later, however, the U.S. Court of Appeals for the Seventh Circuit in Collins v. Smith affirmed a federal district court's decision declaring unconstitutional certain ordinances of the village of Skokie, Illinois, that had been drafted to block a demonstration by members of the National Socialist Party of America. The village argued that the demonstration, together with the display of Nazi uniforms and swastikas, would inflict psychological trauma on its large Jewish population, some of whom had lived through the Holocaust. The court of appeals acknowledged that "many people would find [the] demonstration extremely mentally and emotionally disturbing." Mentioning Contreras, the court also noted that Illinois recognizes the emerging tort of intentional infliction of severe emotional distress, which might well include racial slurs. Nevertheless, the threat of criminal penalties imposed by the ordinance impermissibly limited the plaintiffs' First Amendment rights.
Should our legal system offer redress for the harm of racist speech? The Washington case, from a liberal state court, implies that it should, at least if the remedy takes the form of a private action, a tort suit. Phelps and Collins (the Skokie case) imply that it should not, if the remedy takes the form of criminal punishment for behavior that took place in a public location.
A relatively recent cross-burning case, Virginia v. Black, suggests that punishment is constitutional if the hateful action takes place on private property and is targeted — aimed to intimidate a specific victim. Tort law, rooted in ancient Anglo-American tradition, has often served as a testing ground for new social sensibilities, which are later incorporated into our public law, for example campus conduct codes (see, e.g., chapter 2) or criminal statutes. Tort law thus serves as a kind of social laboratory for testing theories and assessing harms, which later can find their way into legislation and constitutional interpretation. Internet law may be the next such laboratory, as it is becoming increasingly clear that this is the site of some of the worst forms of social behavior (see chapter 3). As the reader will see, the cases in these two chapters span a long period and illustrate the slow development of the notion that society and its members require protection from hateful speech. Full citations to the main cases and principal texts can be found in an abbreviated list of references at the end of the book.
What, then, are some of the harms associated with racial insults? And how have courts viewed them over the years?
PSYCHOLOGICAL, SOCIOLOGICAL, AND POLITICAL EFFECTS OF RACISM
American society remains deeply afflicted by racism. Long before slavery became the mainstay of the plantation society of the antebellum South, Anglo-Saxon attitudes of racial superiority left their stamp on the developing culture of colonial America. Today, a century and a half after the abolition of slavery, many citizens suffer from discriminatory attitudes and practices infecting our economic system, cultural and political institutions, and the daily interactions of individuals. The idea that color is a badge of inferiority and a justification for the denial of opportunity and equal treatment is deeply ingrained.
Racial insults and remarks are among the most pervasive means by which discriminatory attitudes are imparted, communicating the message that distinctions of race are ones of merit, dignity, status, and personhood. Not only does the listener learn and internalize these messages, they color our institutions and are transmitted to succeeding generations.
The psychological harms of racial stigmatization are often much more severe than those created by other stereotyping actions, such as being left off a party list or being lined up, along with others like you, in the back row of the stage for a graduation exercise. Unlike many characteristics upon which stigmatization may be based, membership in a racial minority can be considered neither self-induced, like alcoholism or prostitution, nor alterable. Race-based stigmatization is therefore "one of the most fruitful causes of human misery. Poverty can be eliminated — but skin color cannot."
Minorities may come to believe frequent accusations that they are lazy, ignorant, dirty, and superstitious. It is neither unusual nor abnormal for stigmatized individuals to feel ambivalent about their self-worth and identity. This ambivalence arises from their awareness that others perceive them as falling short of societal standards, ones that even the individual may have internalized.
It is no surprise, then, that racial stigmatization injures its victims' relationships with others. Racial tags discourage interracial behavior and even that with members of one's own group.
The consequences of racism may also include mental illness and psychosomatic disease, including alcoholism, high blood pressure, and drug addiction. The rate of depression is considerably higher in minority communities than in society as a whole. Women who have fallen prey to Internet stalking, trolling, and "revenge porn" report similar distress, nightmares, and inability to function or work.
Achievement of high socioeconomic status does not reduce the risk of these harms. People of color who work and live in white-dominated settings, such as a law office or a bank, have more encounters with race and racism than ones living in a working-class black neighborhood, for example, and the effort to achieve success in business and managerial careers exacts a psychological toll even among exceptionally ambitious and upwardly mobile individuals. Those who succeed often do not enjoy the full benefits of their high status, resulting in stress and frustration.
Racial stigmatization may also affect parenting practices among minority group members. A study of minority mothers found that many denied the significance of color in their lives, yet were highly sensitive to it. Some overidentified with whites and white culture, including shopping habits, as though accepting whiteness as superior. It goes without saying that parents preoccupied with the ambiguity of their own social position are unlikely to raise confident, achievement-oriented, and emotionally stable children.
In addition to these psychological harms, racial abuse may have physical consequences, such as hypertension and strokes. The strong correlation between degree of darkness of skin and level of stress suggests that the greater discrimination experienced by darker-skinned minorities lies at the bottom of it. In addition to emotional and physical harms, racial stigmatization may damage a victim's wage-earning power. The person who is timid, withdrawn, bitter, hypertense, or psychotic is apt to fare poorly in job interviews. An experiment in which blacks and whites of similar aptitudes and capacities were put into a competitive situation found that blacks exhibited defeatism and made halfhearted efforts.
Racial labeling and racial insults harm the perpetrator as well by reinforcing rigid thinking and paranoia. Little evidence suggests that racial slurs serve as a "safety valve" for anxiety that would otherwise find expression in violence (see chapter 4).
Racism and racial stigmatization harm not only victims and perpetrators but society as a whole. They contravene the ideal of egalitarianism, that "all men are created equal" and each person is an equal moral agent, a value that is a cornerstone of the American moral and legal system. A society in which some members regularly are subjected to degradation because of their race hardly exemplifies this ideal. Moreover, unredressed breaches of this goal may demoralize onlookers who prefer to live in a truly equal society and don't like to see violations of this principle taking place regularly around them.
Of course, racism and racial labeling have an even greater impact on children than on adults. In a classic study, when presented with otherwise identical dolls, a black child preferred the light-skinned one as a friend; another said that the dark-skinned one looked dirty or "not nice." A third disliked her skin so intensely that she "vigorously lathered her arms and face with soap in an effort to wash away the dirt." When asked about making a little girl out of clay, a black child said that the group should use the white clay rather than the brown "because it will make a better girl." When asked to describe dolls that had the physical characteristics of black people, young children chose adjectives such as rough, funny, stupid, silly, smelly, stinky, or dirty. Three-fourths of a group of four-year-old black children favored white play companions; over half felt themselves inferior to whites. Some engaged in denial or falsification.
The Special Harms of Racial Insults
In addition to these harms associated with racism and racist treatment, certain specific harms result from racial insults and invective. Immediate mental or emotional distress is the most obvious direct harm. A racial insult is always a dignitary affront, a direct violation of the victim's right to be treated respectfully.
Most racial taunts are intentional, not inadvertent. There can be little doubt that the dignitary affront of racial put-downs, except perhaps ones that are merely overheard, is intentional and therefore most reprehensible. Most people today know that certain words or combinations of them are offensive and only calculated to wound.
In addition to immediate emotional distress, racial insults inflict long-term psychological damage upon the victim. Social scientists who have studied the effects of racism have found that speech that communicates low regard for an individual because of race inscribes disabling stereotypes and apathy in those constantly subjected to it.
This is especially so for children. If the majority defines them and their parents as inadequate, dirty, incompetent, and stupid, the child will find it difficult not to accept those judgments. Much of the blame for the formation of these attitudes lies squarely on value-laden words, epithets, and racial names.
The child who is the constant victim of belittlement can react with only two strategies, hostility or passivity. Aggressive reactions can lead to consequences that reinforce the harm caused by the insults: children who behave aggressively in school are marked by their teachers as troublemakers. Passive reactions, however, yield no better results: children who are passive toward their tormentors turn the aggressive response on themselves, leading to apathy and withdrawal into fantasy or fear.
The Need for a Legal Remedy
The various harms associated with racial treatment argue for some sort of social sanction. Indeed, courts are already affording relief, usually by smuggling in recovery under some conventional, already recognized legal theory such as defamation or the tort of intentional infliction of emotional distress.
The main question law reformers are asking is whether a new, freestanding remedy is in order. The case for one seems strong: we are already protecting the interest at stake, but calling it something else. Moreover, a direct remedy might do some good. As judge A. Leon Higginbotham, author of In the Matter of Color, put it: "For most people living in racist societies, racial prejudice is merely a special kind of convenient rationalization for rewarding behavior."
In other words, in racist societies most citizens will exhibit both prejudice and discrimination. When social pressures and rewards for racism are missing, bigotry is likely to be restricted to people for whom prejudice fills a psychological need. By contrast, in a tolerant setting, even prejudiced persons will often refrain from discriminating in order to escape social disapproval.
Because most citizens comply with legal rules, a tort action for racial insults would discourage harmful activity through the teaching function of the law. Establishing a legal norm against hate speech would certainly increase public consciousness of its harm. Then, the behavior of citizens toward each other would reflect the values of a mature society more consistently than it does now.
As mentioned, the law already does provide a degree of protection from racial insults under such legal theories as assault, battery, intentional infliction of emotional distress, defamation, and various statutory and constitutional causes of action. Following are a few examples:
Battery
In Fisher v. Carrousel Motor Hotel, Inc., the plaintiff, an African American mathematician attending a NASA convention in Texas, was accosted by a white restaurant employee while waiting in a cafeteria line. The employee snatched an empty plate from the plaintiff's hand and told him in a loud voice that he could not eat in that cafeteria. The plaintiff did not allege that he was actually touched or that he feared physical injury, but rather that he was "highly embarrassed and hurt" by the employee's actions in the presence of his associates. But he did assert a battery based on the touching of his plate. The Texas Supreme Court affirmed his award, despite the minimal touching and lack of any physical harm.
Intentional Infliction of Emotional Distress
Courts on several occasions have upheld causes of action or verdicts for minority plaintiffs in cases that stemmed in large part from racial insults. Often, these cases proceed on a theory of battery, but others go forward under a theory of intentional infliction of emotional distress, a relatively new tort. In one, Taylor v. Metzger (1998), a superior officer referred to a black sheriff as "jungle bunny" in the course of a training exercise. A New Jersey court upheld his cause of action because "in this day and age," all supervisors should know better. Many other cases follow suit.
(Continues…)
Excerpted from "Must We Defend Nazis?"
by .
Copyright © 2018 New York University.
Excerpted by permission of New York University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Preface, vii,
1 The Harms of Hate Speech, 1,
2 Hate Speech on Campus, 21,
3 Hate in Cyberspace, 41,
4 Neoliberal Arguments against Hate-Speech Regulation, 49,
5 Neoconservative Arguments against Hate-Speech Regulation, 77,
6 How Do Other Nations Handle This Problem?, 99,
7 A Guide for Activist Lawyers and Judges, 107,
8 "The Speech We Hate": The Romantic Appeal of First Amendment Absolutism, 135,
References, 163,
About the Authors, 165,