Racist hate speech on campus has become the de facto litmus test for free speech protections today. But racist hate speech may not be doing what progressive free speech defenders think it is doing.
Last week in Wisconsin, Republican legislators sought support for "The Campus Free Speech Act," a bill that would punish University of Wisconsin System students and employees who disrupt or otherwise inhibit the free expression of invited speakers. The bill was introduced in response to a series of student protests across the country that interrupted scheduled talks by conservative speakers, including one given by ex-Breitbart editor Ben Shapiro at the University of Wisconsin-Madison last November. The bill requires the UW System to discipline those who engage in "violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct" deemed to violate a speaker's right to free speech. Students could face suspension or even expulsion for repeat offenses, penalties Larry Dupuis, legal director for ACLU-Wisconsin, calls "unnecessarily draconian."
Although this bill takes objection to disruptive student protesters to the extreme, public support for students who would shout down the speech of others has been noticeably thin. This is true even if the speech is overtly racist, like that of white supremacist Richard Spencer, who visited Auburn University last month. Ulrich Baer, a vice provost at New York University, came out forcefully in support of student protesters, but his opinion occupies a distinctly minority position. Even voices expressly opposed to the messages of those like Spencer have advocated locating racist hate speech at the outer bounds of free speech protections — a necessary but repugnant fact of democratic life.
In a recent blog entitled "We All Need to Defend Speech We Hate," ACLU attorney Lee Rowland argues that preempting or shouting over racist hate speech amounts to nothing less than censorship:
Our Constitution protects hateful speech, yes — but on the theory that truly free speech means the best ideas will win out. We need students trained to really listen to ideas they hate — and respond with better ones. ... When you choose censorship as your substantive argument, you lose the debate. Because none of us are the wiser about the better world those protesting students want to see — instead of telling us, they silenced others. In curricular terms: They didn't do the assignment.
Rowland's rhetoric borrows from a familiar metaphor used to frame free speech debates — the so-called "marketplace of ideas." Censorship is not the answer, the story goes, but more speech — better speech — is the proper response to racist hate speech. Bernie Sanders and Keith Ellison have both cosigned this approach as have prominent national opinion writers. The logic of this metaphor is that the public, as objective consumers, will reliably reject a shoddy product — here, the snake oil of racist expression.
Critiques of the metaphor as it applies to free speech debates are almost as old as the metaphor itself, and a recent one contextualizes it in light of recent campus speech clashes. To these, I add the question of whether we are so sure that the rhetoric of common humanity and rights for all races will prevail. What if it doesn't, at least not anytime soon? It might mean that racist hate speech is not a "necessary evil" that jumpstarts racial justice within a liberal marketplace but is — for the foreseeable future — nothing more than state-sanctioned injury of people of color.
Critical race theorists Richard Delgado and Jean Stefancic addressed this possibility in a 1992 Cornell Law Review article entitled "Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills." They coin a term for the erroneous belief that "good" antiracist speech is the best remedy for "bad" racist speech: the "empathic fallacy." The empathic fallacy is the conviction "that we can somehow control our consciousness despite limitations of time and positionality ... and that we can enlarge our sympathies through linguistic means alone."
In other words, the empathic fallacy leads us to believe that "good" speech begets racial justice and that we will be able to tell the difference between it and racist hate speech because we are distanced, objective arbiters.
The romantic aura of transformative antiracist speech captivates us. It is comforting to think that the message of love in Martin Luther King's 1963 "I Have a Dream" speech vanquished the hate behind Alabama governor George Wallace's "Segregation Now, Segregation Forever" address delivered earlier that year. In hindsight, it was a total mismatch. It is almost as if King's words disappeared firehoses and attack dogs by their very utterance. Yet last week in Alabama, a US district judge granted the request of a predominantly-white suburb to secede from a predominantly-black county — despite acknowledging that the community's rationale is racist. "Bad" speech prevailed in the judge's marketplace.
The "marketplace of ideas" fails when we cannot make objective choices about racism.
"Racism is woven into the warp and woof of the way we see and organize the world — it is one of the many preconceptions we bring to experience and use to construct and make sense of our social world," write Delgado and Stefancic. "Racism forms part of the dominant narrative, the group of received understandings and basic principles that form the baseline from which we reason." They argue that this lack of objectivity explains how overtly racist caricatures from the 19thcentury were not received as negatively as they are now: "Uncle Tom" and "mammy" figures, for instance, connoted family loyalty more than racial oppression. Today, school segregation is never about racism but about "local control" and wanting the best for your child.
Once symbolic depictions depart from the obviously grotesque, the question of whether they are racist is up for debate and not likely to be settled anytime soon. It can take centuries for a society to reach consensus that an image or narrative is demonstrably racist.
The on-again off-again affair between Southern states and the Confederate battle flag reveals just how slowly racial justice moves in this regard. Despite evidence that its revival as a symbol of white supremacy coincided with the Civil Rights Movement, the flag means only "tradition" and "heritage" to its supporters. In 2016, discussion of a problematic poll revealed that attitudes toward the Washington professional football team's mascot are wildly inconsistent. Until we critically examine how our opinion of the mascot is a function of our own social conditioning — like celebrating Columbus Day, being a lifelong sports fan, having no American Indian friends — we can never be objective consumers of ideas about it.
In the meantime, racist hate speech flows unabated because of our faith in a flawed metaphor.
The marketplace is further gamed by "dog whistles" — code word replacements for overtly racist speech that still aim to stoke white resentment over the social mobility of people of color. When the sitting attorney general dismisses the ruling of a court because it resides on "an island in the Pacific," he invents yet another way to signal which groups count in America and which ones don't. And if a racist idea like this one ever flops in the marketplace, its author simply recalls it by saying he was joking.
Beyond the fact that there is little agreement over what is racist, the potential of speech to ennoble is undermined by the marketplace as postmodern spectacle. In a recent article, author Rich Benjamin recounts his experiences as the quasi-resident "left-wing pundit" on Fox's now-cancelled O'Reilly Factor. Benjamin explains that he took this role for the chance of convincing just a fraction of O'Reilly's immense audience of the worthiness of his ideas. However, he reveals just how strategic he needed to be to avoid being bullied and misrepresented by O'Reilly. "In the thin-skinned ethos of O'Reilly's right-wing universe," Benjamin writes, "the more you battered its poster boy with dead-on punches, the more ferocious the vitriol directed at you." In the marketplace of cable news and social media, torrents of racist emails and tweets reward you for your bright ideas.
A quarter-century ago when Delgado and Stefancic published their theory of the empathic fallacy, they speculated that the infamous Willie Horton ad tipped a presidential election because voters could not view the ad objectively. We now know that racism was the primary motivation for voters who put Donald Trump in the White House. We know that the best ideas of Gold Star father Khizr Khan at the Democratic National Convention were no match for fearmongering rumors about refugees from Syria and immigrants from Mexico. We know that after almost 100 days of Trump's presidency, only two percent of those who voted for him regret it. This might mean they don't see his speech as racist or don't care if it is.
If we argue that racist hate speech must be protected, we have to account for the empathic fallacy.
We can start by admitting that this position is based on the troubling belief that it is one's right to be hateful — and not on the comforting belief that hate is a catalyst for racial justice in a "marketplace of ideas." Better than ever, we know how specious that logic is. We can understand that student protesters may not, in fact, long for their First Amendment rights should the tables turn on them. Law professor Charles Lawrence has argued that civil rights activists in the sixties achieved substantive gains only when they exceeded the acceptable bounds of the First Amendment, only when they disrupted "business as usual."
Racist hate speech has come to emblemize free speech protections because the parties it injures lack social power. Students of color are expected to endure insults to their identities at the same time that celebrities win multi-million dollar defamation settlements and media companies scrupulously guard their intellectual property against plagiarism.
The belief that more speech is the remedy for "bad" speech can be a principled stance. But for the stance to be principled, it must account for why the target of racist hate speech is less deserving of exemption than, say, the millionaire with a reputation to protect from libel, or the community flooded with sexually-explicit material, or the deep state with a dark secret. Some exemptions make good sense. But does an obscene photograph of an adult that "lacks serious literary, artistic, political, or scientific value" (as defined in Miller v. California, the current law of the land regarding obscenity) really do more harm than a lecture promoting white supremacy?
American society fixates on antiracist protest when debating the First Amendment for the same reason it fixates on race when debating affirmative action: because of the perception that people of color are somehow undeserving of special privileges.
Yet it was supporting the rights of people of color that got Desiree Fairooz arrested in January for laughing during the Senate confirmation hearing of then-attorney general nominee Jeff Sessions. This week, the Department of Justice moved forward with her prosecution, along with those of two men who had mocked Sessions with fake Ku Klux Klan robes. In March, the Human Rights Council of the UN published a letter expressing alarm at the number of legislative efforts criminalizing peaceful assembly and expression in the US.
Powerful interests will find their way around the First Amendment to protect the status quo against antiracist protest. Asking student protesters to tolerate racist hate speech is to ask them to trust in free speech laws that have historically exempted the powerful and punished the vulnerable. When it comes to racism, the "marketplace of ideas" is not laissez-faire and never was.