Words That Wound: Critical Race Theory, Assaultive Speech, And The First Amendment by Matsuda Mari J & Charles R. Lawrence & Richard Delgado & Kimberlè Williams Crenshaw

Author:Matsuda, Mari J & Charles R. Lawrence & Richard Delgado & Kimberlè Williams Crenshaw
Language: eng
Format: epub
Publisher: Taylor & Francis (CAM)

Asking Victim Groups to Pay the Price

Whenever we decide that racist hate speech must be tolerated because of the importance of tolerating unpopular speech, we ask Blacks and other subordinated groups to bear a burden for the good of society—to pay the price for the societal benefit of creating more room for speech. And we assign this burden to them without seeking their advice or consent. This amounts to white domination, pure and simple. It is taxation without representation. We must be careful that the ease with which we strike the balance against the regulation of racist speech is in no way influenced by the fact the cost will be borne by others. We must be certain that the individuals who pay the price are fairly represented in our deliberation and that they are heard.

Even as our discussions concerning the efficacy of regulating racist speech on campuses continue, they evidence our lack of attention to the costs of constitutional injury borne by the victims. I have had scores of conversations about this topic over the past several months with students, colleagues, university administrators, ACLU board members, reporters, friends, relatives, and strangers. By now there is an experience of déjà vu each time I am asked to explain how a good civil libertarian like myself—a veteran of 1960s sit-ins and demonstrations, a progressive constitutional law professor, and a person who has made antiestablishment speech his vocation—could advocate censorship. I try to be patient, articulate, and good natured as I set forth the concerns and arguments explored in this chapter. I try to listen carefully, to remain open to others’ experiences and to my own strong instincts against governmental incursion on individual liberty.

Often when I am at my best, even the most steadfast defenders of the first amendment faith will concede that these are persuasive arguments. They say they agree with much of what I have said, they recognize I am proposing narrowly framed restrictions on only the most abusive, least substantive forms of racist speech, and they understand the importance of hearing the victims’ stories. Then they say, “But I’m afraid I still come out differently from you in the end. I still don’t see how we can allow even this limited regulation of racist speech without running some risk of endangering our first amendment liberties.”

One of these encounters occurred at a recent dinner with colleagues in New York. My good friend and former colleague john powell—john is national legal director of the ACLU and he is Black—was in attendance. He told the following story:

My family was having Thanksgiving dinner at the home of friends. We are vegetarians and my two kids were trying to figure out which of the two dressings on the table was the vegetarian dressing and which was the meat dressing. One of our hosts pointed to one of the dressings and said, “This is the regular dressing and the other is the vegetarian dressing.” I corrected him saying, “There is no such thing as ‘regular’ dressing.

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