"War of Words" - Henry Louis Gates, Jr. from _Speaking of Race, Speaking of Sex_ (New York U Press, 1994).
Here's a summary of Gates article (all errors are my own):
Today, Gates notes, we are caught between two poles - a dramatic tension between civil liberties and civil rights - between free speech (freedom of expression) and hate speech (freedom from expression). Gates examines arguments on both sides of this debate.
He notes that the strongest argument for regulating hate speech is the unreflective stupidity of most of the arguments you hear on the other side - arguments which tote around the First Amendment like a six shooter in a cowboy flick - as if the justification behind it is self-evident. The idea that freedom is a good thing without any kind of qualification about what that might mean. Gates is going behind the rhetoric here, by taking the arguments for and against the regulation of hate speech seriously - focusing on the analysis by Matsuda, Lawrence and Delgado - the principle architects of "critical race theory." Critical race theory, Gates notes, is largely an intersection or convergence between the feminist theory of MacKinnon (in support of hate speech regulation) and "critical legal studies" (taking on more traditional and perhaps libertarian legal distinctions between public and private).
Gates notes that the first line of defence for free speech absolutism is the "self-evident" authority of the First Amendment, folded together with a vague historical argument and the comment that our happiness depends on it. Gates remarks that the "only flaw" is that this argument happens to be entirely false and "nobody ever believed it anyway." He notes that the First Amendment, conceived as protecting the free speech of citizens, did not exist until 1931. The notable exceptions to "free speech" include libel, invasion of privacy and obscenity.
After this argument has been laid to rest, Gates cites two fallback arguments used to defend free speech absolutism: on the one hand, "sticks and stones may break my bones but names will never hurt me" and on the other, "if you limit one form of speech, you'll have to ban them all" - the slippery slop argument. You can see that Gates doesn't take much stock in either of these arguments either.
He then goes on to outline the reasons for the regulation of hate speech based on court decisions in 1942 and 1952: fighting words and group defamation.
Fighting Words- Fighting words are words by which in their very utterance inflict injury or tend to incite an immediate breach of the peace - having "no essential part of any exposition of ideas." Evidence supporting this includes the trauma experienced by victims of hate speech and propaganda, including both psychical and physical injuries. The idea here is that racist speech is contentless, it is "more like a blunt instrument than a vehicle of thought." It is a physical blow, not an exchange of ideas.
Gates notes that this argument has its problems too - since the prohibition of "fighting words" has tended to have discriminatory effects - since it has been more often applied against political and racial minorities. Furthermore, the idea that "fighting words" are devoid of content is itself problematic - since it is precisely the coding inscribed within these words that presents the meaningfulness of the expression - Gates gives the example of the defaced poster of Beethoven, "a picture worth a thousand words."
A further distinction was made by Degado - between offensive racist speech and offensive political speech --> offensive political speech is protected while racist speech only intents to injure the victim, and should therefore be protected against. Gates notes that this creates another paradox - since the most harmful forms of racist speech are those that combine injury with political advocacy - in other words - racist speech that is political. In short, Gates shows that "fighting words" are political, and therefore not devoid of content, and not merely blunt instruments used to cause injury.
Group Defamation- Designed to prohibit public expression that slanders a group of people. Matsuda writes, "When the legal mind understands that reputational interests... must be balanced against first amendment interests, it recognizes the concrete reality of what happens to people who are defamed. Their lives are changed. Their standing in the community, their opportunities, their self-worth, their free enjoyment of life are limited. Their political capital - their ability to speak and be heard - is diminished. To see this, and yet to fail to see that the very same things happens to the victims of racist speech, is selective vision." The same kind of balancing act can be seen in MacKinnon's argument that pornography is group defamation. The problem, that Gates points to, is that this law ends up reinforcing precisely those who it is intended to protect. In effect, citing Delgado here, Gates argues that it is not desirable that the law view membership in a racial minority as damaging to a person's reputation, even if some members of society consider it so.
Where Gates sees critical race theory at its strongest, is 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. Gates cites Anatole France, "The law, in its infinite majesty, forbids rich and poor alike from sleeping under brides." In other words, if neutrality is, in the end, a masquerade, why bother with it? - an idea that Matsuda calls "expanded relevance" - the idea of an "end to unknowing." This idea here challenges the popular notion that justice is blind - -> and Gates notes that we avoid the unsettling problem of having to defend undesirable views in the name of freedom - ie. As it could turn out, sometimes defending neo-Nazis is just... defending neo-Nazis.
Matsuda offers three elements to distinguish racist hate speech from other forms of racist and nonracist speech:
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 is related to the "fighting words" idea, the first the primary identifier of racist speech, but the second element that attempts to further define racism by recognizing the connection of racism to power and subordination. The second element then, moves away from the "value-neutrality" of the legal system.
Gates points out that the first element is a problem, since as Laurence Thomas observes, traditionally anti-Semitic messages imputes to its target not inferiority but iniquity which leaves us hanging on the question of "historically oppressed" or "dominant group." This would permit one person to claim some sort of "historical oppression" and pit it against another "historical oppression."
The question of the neutrality of rules is an important one. We've seen it in Rawls, and we've seen something like it in Habermas. The problem that keeps arising with the idea of the neutrality of rules is that they detach themselves from their context and sometimes acquire a destructive measure of autonomy. We can see some of this in the "Skokie school" of jurisprudence. . The Skokie school refers to the decision of the American Civil Liberties Union to defend the right of neo-Nazis to march in Skokie, a predominantly Jewish suburb of Chicago. Again, the Skokie school relied on a number of problematic presuppositions, most importantly, the "neutral operation of principle in judicial decision-making."
However, the problem with abandoning this approach, the defence of value-neutrality, is dogged its alternative: the case-by-case balancing of interests: the practice of casuistry. This is where one finds a similar case, determine if the decision was the right one, and then "fit" the current case into its paradigm for guidance. There is a long and powerful tradition of casuistry in English case law as well as in the Roman Catholic tradition - something like the wisdom of ages. The problem, as Robert Post argues, is "the fallacy of immaculate isolation" - in that the case becomes separated from history and is political estranged. Another problem is that one gets the impression that decision making is limited to historical precedents.
As a alternative, which shouldn't be confused with middle ground, Gates notes that some people have maintained that the regulation of racist speech is, in part or whole, a symbolic act - symbolizing a commitment to tolerance and to the creation of an educational environment where living together in relative peace is preserved. Gates suggests that in many instances the decision to protect racist speech is also to justify or endorse it.
The final paradox Gates notes, is that the substantial restriction on racist speech must make the case that racist speech is sui generis among offensive or injurious utterances. What must be distinguishing about racist speech, in other words, is its connection to systemic patterns of domination. Scholars like Matsuda, Lawrence, and Delgado argue that racist speech is peculiarly deserving of curtailment precisely because it participants in and is constitutive of the larger structures of racism hegemonic in our society. In other words, racist speech is a manifestation of a ubiquitous and deeply ingrained cultural belief system, "an American way of life."
The problem here is that the regulation of hate speech, if the statement that racism is ingrained in "a way of life" is that such regulation will, more than naught, be used against the marginalized group. As David Cole notes, "in a democratic society the only speech government is likely to succeed in regulating will be that of the politically marginalized." So only if racist speech is unpopular and stigmatized will a strong constitutional norm of content neutrality be any hope for protection... and for critical race theory, that's a damning argument *against* content neutrality.
On page 43 Gates notes that Matsuda draws our attention to Canada and the UK and models of hate speech regulation. Gates then goes on to note that the first implementation of the anti-obscenity rule was to raid a gay and lesbian bookshop in Toronto. More recently, there was Little Sister in Vancouver. In 1993, copies of bell hooks was also confiscated by Canadian authorities as possible "hate literature." Ironically, and Gates doesn't mention this, the works of Andrea Dworkin, whose worked with MacKinnon to create the anti-obscenity laws applied in Canada, also had her books confiscated because of their graphic depictions of violent pornography. Gates lists similar incidents in the UK. Notably, Gates also cites the case of the University of Michigan - in their efforts to provide a safe harbour for its black, latino and asian students, twenty blacks were charged, by whites, with racist speech. Not a single instance of racist speech by whites was punished.
For Gates, these are good examples of how speech codes kill critique.
To further continue into the paradox of free speech, Gates quotes from the critical race theory manifesto: "Too often victims of hate speech find themselves without the words to articulate what they see, feel, and know. In the absence of theory and 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 origin."
Here, the recovery/survivor paradigm leads to a 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. Elsewhere we are told that what makes racist speech peculiarly wounding is that it conveys precisely that content, that you are a member of a subordinated group. How, then, can the message of the group subordination be both poison and antidote?
The strongest argument, in Gates mind, is the argument in support of the preservation of a broadly democratic polity - and that the regulation of hate speech will really enhance the diversity and range of public discourse. At their boldest, these arguments pit free speech and hate speech as antagonists, such that public discourse is robbed and weakened by the silencing and exclusionary effects of racist speech. Restricting hate speech then actually increases the circulation of speech in general. Gates then notes that despite this, the question of the safety and effectivity of this is an open one. As Post notes, the question of wether public discourse is irretrievably damaged by racist speech must itself ultimately be addressed through the medium of public discourse.
In closing, Gates notes that the arguments have swung from the absurd position that words don't matter to the equally absurd position that only words matter. The key question for Gates is whether First Amendment liberties are so costly that they significantly impede our chance of securing the equal protection guarantees of the Fourteenth Amendment. Gates argues that abolishing racist speech does little to abolish racism. And simply because the words aren't present doesn't mean that the economic conditions of racialized groups will improve. He notes, in the absence of a material and economic gap, no one would much care about racist speech.
The critical race theorists, Gates notes, must be credited with helping to reinvigorate the debate about freedom of expression however he ends with, "Another such victory and I am undone."