>>> Gordon Fitch <gcf at panix.com> 03/15/00 09:14PM >>>
But speech is an action. In (some) liberal theory, it's a kind of action which is (somewhat) protected from government interference. But it is not protected when it transgresses certain other rights boundaries, as in libel or copyright violation. I believe this is the basis for Catherine MacKinnon's project to get pornography outlawed, because it's a form of speech which, according to her, _in_itself_ damages with well-being and good repute of women, regardless of whether it leads to other bad actions.
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CB: With respect to racist speech, law professor Mari Matsuda has essayed on the hurting and materially harmful nature of racist speech as an act in itself.
My approach includes that as part of the injury of racist speech, but I am more concerned about the incitement to fascistic racist action that fascistic racist speech is. Fascistic racist action is such an egregious act, that we are justified in making a special exception to the general principle of freedom of speech and denying First Amendment protection for fascistic racist speech and organization, as with Nazis and KKK organizations and speakers.
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So one might construct a similar argument for laws against racist speech. However, as with pornography, one runs into the problem of definition: the democratic government will probably be required to define not only racism but race and to assign individuals to races and prescribe rules for behaviors across racial boundaries. This would negate the possibility of nonracism, perhaps permanently. At the same time, there does not seem to be any guarantee that such a policy would actually reduce or inhibit racist ideas and practices, which can easily be concealed in codes or performed out of sight. Nor would it touch "objective racism", for instance the difference in net worth of families per racial category recently noted here. In fact, it could be used to obstruct public consciousness of such facts, as in "There ain't no racism here, we outlawed it."
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CB: Definitions for tough cases is what lawyers do all the time. We cannot make the defintional problems the reason for not fighting for the substantive power to the people, as a whole and as individuals. That the law won't be perfect cannot be an excuse. All laws are imperfect, like mathematics.
Outlawing fascistic racist speech is not the only anti-racist proposal of the Left. It also, supports affirmative action, and all of the civil rights laws as interpreted pre- the Rehnquist and Reagan court. We are for returning to those anti-racist measures and advancing them further. So there should not be a problem with the obstruction you mention when the entire anti-racist program is broadcast.
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I suppose one should also notice that we are leaving the realm of liberal rights theory where I think we started, in which rights are supposed to be impervious to the whims of the demos as well as those of other powers.
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CB: Rights in the Constitution were established by the demos. We , the People , are the source of all rights under a democracy. We are more concerned about the whims of the tyrants-Presidents, and judges, Madisons and intellectuals.
All Power to the People,
CB