Monday, October 31, 2005

The First Amendment & Racist/Hate Speech

The First Amendment & Hateful Speech: A response to Mari Matsuda’s Public Response to Racist Speech: Considering the Victim’s Story

In Mari Matsuda’s Public Response to Racist Speech: Considering the Victim’s Story (Michigan Law Review, Vol. 87:2320, August 1989), Dr. Matsuda offers that “[her] [a]rticle attempts to begin a conversation about the first amendment that acknowledges both the civil libertarian’s fear of tyranny and the victim’s experience of loss of liberty in a society that tolerates racist speech. It suggests criminalization of a narrow, explicitly defined class of racist hate speech, to provide public redress for the most serious harm, while leaving many forms of racist speech private remedies.” Acknowledging that the article in question is more than 15 yrs old and that some of the research, on which it is based, may not reflect the current climate of racism and hate speech in the U.S., her arguments and conclusions seem to reflect an activist approach to law that negates the long-held beliefs and applied principles in Western and, particularly, American jurisprudence as applied to free speech.

Dr. Matsuda approaches her subject from the perspective an aggrieved party; noting that “[a]s a young child I was told never to let anyone call me a J-p. My parents, normally peaceable and indulgent folk, told me this in the tone reserved for dead-serious warnings… Don’t let anyone call you that name. In their tone they transmitted a message of danger, that the word was a dangerous one, tied to violence.” At its root, her assessment of the effect of racist and hate speech on persons of historically persecuted groups is that of continued violence.

She draws no distinction btwn actions of violence, be those actions discrimination in hiring, housing, or association, physical violence, or the misappropriation of law, and the speech that she sees as underlying and supporting it. Her article is chocked full of individual incidents of discriminatory actions and words. She uses these stories to support the contention that racist words are, in and of themselves, a form of violence. She notes that “[i]n addition to physical violence, there is the violence of the word. Racist hate messages, threats, slurs, epithets, and disparagement all hit the gut of those in the target group. The spoken message of hatred and inferiority is conveyed on the street, in schoolyards, in popular culture and in the propaganda of hate widely distributed in this country.”

Further, while acknowledging that the “elite” have officially renounced violence and hate propaganda, she charges that they tolerate “other forms of racism.” She states that “Jim Crow, which persists today in the form of private clubs and de facto segregated schools and neighborhoods, is seen as less offensive than cross burnings. Covert disparate treatment and sanitized racist comments are commonplace and socially acceptable in many settings… Lower- and middle-class white men might use violence against people of color, while upper-class whites might resort to private clubs or righteous indignation against ‘diversity’ and ‘reverse discrimination.’ Institutions- government bodies, schools, corporations- also perpetuate racism through a variety of overt and covert means.”

Dr. Matsuda sees the common-thread to this disparate treatment, discrimination, and violence as the tolerance of racist and hate speech under the pretext of 1st Amendment protection. She alleges that “[l]ess egregious forms of racism degenerate easily into more serious forms;” that “[violence is a necessary and inevitable part of the structure of racism;” and that “[t]he historical connection of all the tools of racism is a record against which to consider a legal response to racist speech.”

Critical to her argument is the separation of persons into two groups: Dominant Group members and Target Group members. Although neither group is explicitly defined by Dr. Matsuda, the Dominant Group seems to be comprised of white, main-stream Americans (particularly males), occasionally including the discrimination of individuals by groups of minorities (e.g. the oft-cited interaction between African and Asian Americans). The Target Group is comprised of all persons who may suffer violence (physical, psychological, emotional, or verbal) on the basis of their historically persecuted class. Thus, every group not fully integrated, and indistinguishable from, white, main-stream America may fit into the Target Group.

On its surface, lumping all persons, not subject to racial and hate targeting into a broad category under the rubric of “Dominant Group” would seem unjust. She tacitly acknowledges that there are white persons in America who are not inclined towards outward displays of racism or hate. However, citing such phenomena as “whites treat[ing] African Americans with ‘verbal over-friendliness, coupled with vocal and behavioral cues of affective retreat,’” she, startlingly asserts that “Dominant-group members who rightfully, and often angrily, object to hate propaganda share a guilty secret: their relief that they are not themselves the target of the racist attack. While they reject the Ku Klux Klan, they may feel ambivalent relief that they are not African-American, Asian, or Jewish. Thus they are drawn into unwilling complacency with the Klan, spared from being the feared and degraded thing.”

Accepting, for the moment, that Dr. Matsuda’s characterization of Americans as falling into one of two groups: the Dominant Group (hereinafter “DG”) or the Target Group (hereinafter “TG”), is an accurate representation of race relations in the United States in 2005, the genius and breadth of her argument and proposal can be appreciated. She is arguing for the complete obliteration of constitutional protection for speech that is directed at groups and individuals on the basis of their membership in the TG. Her approach is to treat as sui generis all such speech and accomplish a universal condemnation “on the basis of its content and the harmful effect of its content. This can only be accomplished by “legal intervention, including the use of tort law and criminal law principles” to “combat racist hate propaganda.”

While Dr. Matsuda gives a nod to classical arguments in favor of limited restrictions on free speech: the “marketplace” of ideas, fundamental rights to self-expression, the hesitancy to apply subjective determinations of legal action to normative behavior, and the value in bringing false ideas into the light of public conscious, she makes good use of our traditional exceptions to these principles. She notes that the state provides for the curtailing of “[c]onspiratorial speech, inciting speech, fraudulent speech, obscene speech, and defamatory speech. However, she pointedly asks “whether the values of the first amendment are in irresolvable conflict with the international movement toward elimination of racist hate propaganda, and whether any attempt to move United States law toward the international standard is worthwhile.”

In essence, Dr. Matsuda is arguing that free speech jurisprudence has ceased evolving because it continues to afford constitutional protection to that which is out of step with modern norms as exemplified by international law. She is arguing that, by viewing free speech, as it relates to racist and hate messages, from the victim’s perspective, we can affording individuals, who regularly suffer indignities, the constitutional protections that they are entitled to; that, by making actionable the use of racist and hate speech, we can fulfill the promise of equal protection under the law. She eloquently asserts that “[t]he competing values recognized under international law are equality, liberty, and personality. Each person under that scheme is entitled to basic dignity, to nondiscrimination, and to the freedom to participate fully in society. If there is any central principle to the Bill of Rights, surely that is it.”

Finally, of the approaches, currently in use by the courts, she asserts that “[t]he alternative to recognizing racist speech as qualitatively different because of its content is to continue to stretch existing first amendment exceptions, such as the ‘fighting-words’ doctrine and the ‘content/conduct’ distinction. This stretching ultimately weakens the first amendment fabric, creating neutral holes that remove protection fro many forms of speech. Setting aside the worst forms of racist speech for special treatment is a non-neutral, value-laden approach that will better preserve free speech.”

She offers a three-part test to determine which speech should be barred from constitutional protection: 1) the message is of racial inferiority; 2) the message is directed against a historically oppressed group; and the message is persecutorial, hateful, and degrading. Her examples of the application of this test are illuminating. “Using these elements narrows the field of interference with speech. Under these narrowing elements, arguing that particular groups are genetically superior in a context free of hatefulness and without the endorsement of persecution is permissible. Satire and stereotyping that avoids persecutorial language remains protected. Hateful verbal attacks upon dominant-group members by victims is permissible. These kinds of speech are offensive, but they are, in respect of first amendment principles, best subjected to the marketplace of ideas. This is not to suggest that we remain silent in the face of offensive speech of this type. Rather, the range of private remedies- including counter-speech, social approbation, boycott, and persuasion- should apply.”

Her reasoning for including “[h]ateful verbal attacks upon dominant-group members by victims” in her examples of non-actionable, objectionable speech, fleshes out her argument. She notes that “[e]xpressions of hatred, revulsion, and anger directed against historically dominant-group members by subordinated- group members are not criminalized by the definition of racist hate messages use here.” However, such speech must be permitted because “[t]he dominant-group member hurt by conflict with the angry nationalist [TG member] is more likely to have access to a safe harbor of exclusive dominant-group interactions.” In her view, “an angry, hateful poem by a person from a historically subjugated group [is] a victim’s struggle for self-identity in response to racism.”

In applying the Matsuda Test, she would have the court “determine when subordination exists by looking at social indicators; wealth, mobility, comfort, health, and survival trend”. And, further, “[i]n the same way that lawyers martial evidence in an adversarial wetting to find facts in other areas of law, we can learn to do the same to know the facts about subordination, and to determine when hate speech is used as an instrument of that subordination.” To help the court apply this test, she suggests that “[t]he appropriate standard in determining whether language is persecutorial, hateful, and degrading is the recipient’s community standard” because “the various subordinated communities are best equipped to analyze and condemn hate speech arising within their midst.”

Dr. Matsuda’s piece is far too lengthy to give a full rendering here. Furthermore, her work includes numerous subtle arguments that are worthy of posts on their own. Therefore, I will take issue with only two of her arguments: 1) that racist and hate speech can only be addressed from the perspective of the Target-Group member, and 2) that the eradication of racism and hate propaganda can be accomplished only through a specific prohibition and legal action.

“Group identity” has its root in the notion that there is a common experience to which every member can relate. Race, religion, stature, economic position, education, disability, skill, membership, and a host of other notions of “personal traits” exist solely in the human mind. The terms and their specific meanings are only “real” inasmuch as an individual identifies them and accepts their “reality.” Thus, a person may consider themselves to be “fat” or “weak” or others to be “obnoxious” or “ugly.” None of these characteristics have any actual meaning and, thus, none of them can create a truly natural grouping. (Compare this with concepts of species or other physical properties that are not subject to viewpoint. A dog or a human or a horse are all distinct groups of creatures. A metal is not organic and a stone is not “animate.” )

How then can we trust a particular person to identify that which should be subject to legal action?

Matsuda seems to be saying that there is a common experience to all TG members’ that puts them in a unique position to determine what is or is not offensive. But, is not such a determination inherently particular?

Most legal and enforcement authorities acknowledge that there is no “truth” with regards to human experience. This is to say that there is the particular viewpoint of each individual, whatever Platonic truth there may be to the incident in question. There are disputes about what was said, what was done, what was intended, about body language, circumstances, timing, order, and an host of other factors, all of which speak to the meaning of an encounter between the parties involved. Therefore, making actionable the words of a party on the basis of the other party’s perception is inherently unjust.

More importantly, such a test falls decidedly outside of our legal tradition. Not since pre-colonial days have we permitted the plaintiff to submit the problem and evidence while denying the defendant the right to dispute those contentions. By establishing such a standard to racist and hate messages, to which a court will not permit any answer that is not grounded in the plaintiff’s perception, we would be extending a strict-liability system to another area of free-speech.

This would be to equate free speech as it relates to child pornography to free speech as it relates to subjects of far more nebulous areas such as race-relations and religious disputation. Without actual facts (and the perception of individuals should not be considered “facts” under our system of laws), penalties that arise out of such cases would be inherently unjust.

This is not so say that racist speech and hate propaganda cannot be addressed in a court of law. We already have the necessary legal tools at our disposal.

We have outlawed illegal trespass, vandalism, assault, arson, and terroristic threats. It is illegal to burn something on someone else’s property, to vandalize their home, to terrorize them, and to assault them. These are individually actionable offenses well understood and proved in court. Why should we create a further burden on the Federal system or restrict free speech to accomplish what is already addressed through state action?

This brings us to the second question: can the eradication of racism and hate propaganda can be accomplished only through a specific prohibition and legal action?

Dr. Matsuda wrote her article in 1989. Therein she asserted that there was a “rising tide of racial hatred wash[ing] over our schools and work places.” Accepting that her research bore out this conclusion, it is fair to ask whether that analysis holds up today. I would suggest that it does not.

Jim Crow laws have been eradicated and discrimination has been driven underground. In essence, institutionalized racism has disappeared from the American scene. If Matsuda’s goal is to attack the insidious racism that lives within society but is not engrained in the institutions, making those inclinations actionable will have the opposite effect. Furthermore, exempting one group or individual from action because of their, virtually, arbitrary designation will breed contempt for law.

I suggest that it is normal for human beings to feel a pull towards that which is familiar and common and to be repulsed by that which is foreign to their experience or notably different in appearance. These inclinations are controlled and subordinated by experience and engagement. Thus it is not, as Matsuda suggests, necessarily a misrepresentation of true emotions and thoughts to treat persons different from themselves with courtesy and, even, affection. It is possible, even common, for Dominant Group members to subordinate, over many years, their acknowledgement of difference until they become, largely, “colorblind.” It is also possible, even common, for Target Group members to accentuate, over many years, the differences between themselves and others until they become, largely, blind to the common traits of humanity.

Therefore, forcing the extreme forms of racial and hate speech underground will have a chilling effect on the necessary engaging of persons of different backgrounds. Afraid to discuss their conceptions of one another, developing an awareness and affinity for the views of one group or another would undermine the progress of the last fifty years. It is only through dialog that continued progress can be made. Therefore, racial speech, however detestable, must be protected under the 1st Amendment. Where it steps over the line into action which caused real or perceived discrimination, we have civil remedies. Where it steps over the line into action which causes real or perceived threats to safety of person and property, we have criminal remedies. But, stifling such speech is not an effective answer to the social consequences of racism or hate speech.


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