African Americans and the First Amendment by Timothy C. Shiell;

Author:Timothy C. Shiell; [Shiell;, Timothy C.]
Language: eng
Format: epub
ISBN: 9781438475837
Publisher: SUNY Press
Published: 2019-07-15T05:00:00+00:00

HATE SPEECH IN THE UNITED STATES, 1980S–PRESENT

The milestone 1964 Civil Rights Act combined with other factors led to gradual increases in employment and education for African Americans and other historically disadvantaged groups. When cases of racial discrimination arose in the 1970s, courts began to uphold sanctions against discriminatory speech and conduct in specific circumstances based on existing legal categories.27 The problem of discrimination in higher education gained attention.

In an effort to protect minority students from discrimination and violence, many campuses adopted broad speech restrictions that became known as hate speech codes. These codes attracted extraordinary attention—thousands of books, articles, editorials, blogs, and so on—for two main reasons. First, the potential and actual threat to free speech they posed due to their overbreadth and undue vagueness drew criticism from across the scholarly and public spectrum. Second, the restrictions often arose after intense protests or lobbying by strident student groups and were intellectually spearheaded by controversial Marxists such as Herbert Marcuse28 and Saul Alinsky,29 as well as Charles Lawrence, Mari Matsuda, and Richard Delgado, who created the new field of critical race theory.30 The movement was not limited to campuses, but the campus debate became the focal point. To many people, it was political correctness and leftist extremism run amok. To supporters it was “progressive” censorship.

In contrast to the civil rights–era belief that free speech and racial equality were inseparable, advocates of the broad campus hate speech codes framed the issue as two conflicting narratives or worldviews in which defenders of robust free speech rights privileged their own assumptions and failed to engage the egalitarian argument for limiting speech to protect the historically oppressed.31 They perceived the individualistic basis of liberty law (particularly the Free Speech Clause in the First Amendment) to be incompatible with the immutable characteristic group basis of equality law (particularly the Equal Protection Clause in the Fourteenth Amendment) and thought so much the worse for free speech.32 Given the perceived harmful effects—psychological and physical—of hate speech and its connection to hate crimes, some claimed that hate speech itself is violence no different from physical violence.33 Thus, hate speech by members of the dominant group directed at the historically disadvantaged must be silenced, whereas hate speech directed at historically dominant persons by the historically subordinated was acceptable.34 An “outsider jurisprudence” was necessary to champion a new speech regime grounded in an equality-based theory of free speech35 in which racial respect and civility reigned.36

Campus speech codes initially invoked the fighting words and group libel doctrines to justify their restrictions, but these approaches were rejected by courts because those doctrines had been narrowed too much to sustain the overbroad and unduly vague codes. The pattern was set in the very first case, Doe v. University of Michigan, 721 F. Supp. 852 (E.D. MI 1989). Less than a year after the University of Michigan passed a hate speech code, a graduate student in biopsychology sued the university, fearing he would be prosecuted for discussing views about biologically based racial and sexual differences.

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