After Charlottesville, Should Racism and Hate Be Illegal?

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Anti-racism protesters in front of Trump Tower in New York City, New York, August 14, 2017. Due to the President's late response to the Charlottesville, Virginia attack as well as other controversial speech he has delivered, protesters assembled outside Trump Tower. REUTERS/Shannon Stapleton TPX IMAGES OF THE DAY

Newsweek published this story under the headline of “Time to Outlaw Racial Slurs?” on June 6, 1988. In light of escalating racial tensions in the United States, Newsweek is republishing the story.

It was only a make-believe trial in a moot court, but the case could hardly have been more disturbing. The fictitious defendant, Jesse Stump, has been the main speaker at an imaginary rally held by the American Aryan Revolutionary Front. In a public hall bedecked with swastikas, Stump gave a speech laced with racial epithets that called for the lynching of blacks and the burning of synagogues, "preferably with the [Jews] inside." According to a fictitious policeman present in the hall, the mood of the crowd was ugly, though no violence seemed imminent. Stump was arrested in the middle of his screed and charged under a law prohibiting "group defamation" -- malicious, degrading, hurtful speech aimed at a racial or ethnic group. A trial court found him guilty and sentenced him to 60 days in prison. The question posed in the moot court, the centerpiece of a legal symposium held recently at Long Island's Hofstra University, was whether such group-defamation statutes are constitutional. Is the outlawing of racist speech consistent with First Amendment guarantees of free expression? 

Most mainstream legal scholars are convinced the answer is no. But changing attitudes -- in society at large and among young legal academics -- have created a wave of interest in group-defamation bans. The scholarly ferment began in the late '70s, part of a larger national debate over whether a neo-Nazi group should be allowed to march in Skokie, Ill. The feminist movement played its part, raising concerns about the defamatory aspects of pornography. But by far the greatest impetus has come in recent years with the rise of racial violence, including incidents like the deadly 1986 assault in Howard Beach, N.Y., in which a gang of white youths attacked three black men. Proponents of group-defamation laws are convinced there is a link between racial slurs and violence. According to Hofstra law professor Monroe Freedman, continuing tensions can only fuel wider interest in banning hate speech. "It's still a minority view," he says, "but it is germinating."

There are as many specific legislative proposals as there are interested scholars. Many would require the prosecutor to prove that the accused defamer intended to cause harm. Almost all would protect racist speech that possessed redeeming literary, political or scientific value. But there agreement ends. Should such laws cover only incitement to violence, or also the psychological pain caused by racial slurs? And who should bring charges? Should the state prosecute such speech as a criminal offense? Or should injured parties sue for damages, as in an individual libel case? Feminist legal scholar Catherine MacKinnon and Kenneth Lasson of Baltimore University prefer the civil option; the power to suppress speech should not belong to public officials, the argue. Those who advocate a criminal statute see that as a better way for the state -- and by extension, society -- to register its distaste for racism.

All these scholars recognize that prohibiting hate speech goes against the American grain. The Constitution is rooted in Enlightenment notions of pluralism and tolerance. The American consensus, expressed in decades of U.S. Supreme Court rulings, is that even the most hateful opinions should be allowed to compete in the "marketplace" of ideas. And as a nation made up of minorities, we are loath to let the majority silence any faction, no matter how divisive or offensive. Local legislatures have occasionally passed group-libel laws, and in 1952 the Supreme Court upheld one from Illinois. But later rulings on individual libel are generally thought to override that decision.

Most of those who advocate a ban insist it need not interfere with American democracy. As Jack Greenberg of Columbia University points out, incitement to racial violence is outlawed in most liberal democracies, including Britain, Israel and most of Western Europe. "I would feel as free living in Sweden, Canada or France," he says. "Such laws contribute to civility. They make society more stable and decent and need not imperil any fundamental freedoms." Kenneth Lasson notes that the U.S. Supreme Court has exempted several other kinds of speech (including obscenity, libel, "fighting words" likely to incite violence, the spilling of state secrets) from constitutional protection -- with little "chilling effect." "So perhaps," he says, "we can draw the line in a different place on the spectrum and still have a very healthy First Amendment."

Most lawyers (and other people) who oppose such laws are worried about the slippery slope: might not a ban eventually be extended to include genuine forms of political expression? Others do not trust the courts to make rulings about subjective pain and injury. They worry that the state will inevitably abuse this power; short of that, they argue that even the most carefully worded law will discourage other speech. As First Amendment lawyer Floyd Abrams argued at the Hofstra conference, "Americans have made a brave and sophisticated choice," deciding to endure some hateful speech in the interest of a greater good: robust political rebate. In truth, it may be less a choice than a part of the American character, a consequence of our origins and our most ingrained political impulses. And for all the pain caused by racial slurs, that predisposition is not likely to change easily.