by Henry Louis Gates, Jr., Anthony P. Griffin, Donald E. Lively,
Robert C. Post, William B. Rubenstein, and Nadine Strossen.
New York University Press.
Reviewed by Patrick Harrington
Instinctively, most decent people don’t like to see anyone singled out and denigrated unfairly. To most, it seems particularly distasteful if the denigration is on the basis of race, gender or (to many, at least) sexual orientation. Yet the authors of this book, all of whom are active in campaigns for equality as well as for civil liberties, see codes on US campuses which prohibit and punish such speech as a threat…. Why?
Their book examines the arguments for and against such codes and the issues that underlie them. Objections to these codes include that :
They are a threat to basic free speech principles. In particular the idea that speech should be protected regardless of its content or viewpoint — a principle intended to prevent the law from favouring one interest over another.
They have a chilling effect on wider discourse. Nadine Strossen points out that : Regardless of how carefully these rules are drafted, they inevitably are vague and unavoidably invest officials with substantial discretion in the enforcement process; thus, such regulations exert a chilling effect on speech beyond their literal bands. (1)
They put us on a “slippery slope”. Ideas not originally intended to be the subject of the codes will be penalised. Throughout the book examples are given of this happening. Strossen points out that in Britain the “No Platform for racists and fascists” was extended to cover Zionism (whereby its victims included the Israeli ambassador to the UK). (2) In Canada the victims of restrictions of free expression have included the black feminist scholar Bell Hooks, and a gay & lesbian bookshop in Toronto. (3)
Much the same issue was raised from the floor of an LM sponsored conference at which one of the authors (Nadine Strossen) spoke; it was pointed out that the Public Order Act of 1936, which was ostensibly introduced to control the followers of British Fascist leader Oswald Mosley, had been invoked time and time again to ban demonstrations by leftists and trade unionists. Similarly, police tactics used against the National Front in the 1980s to prevent their coaches from reaching demonstrations were later employed against striking miners. The book’s authors note that the codes give power to institutions and government. Can we trust them with these new powers? As David Coles, a law professor at Georgetown University, wrote :
…in a democratic society the only speech government is likely to succeed in regulating will be that of the politically marginalised. If an idea is sufficiently popular, a representative government will lack the political wherewithal to supress it, irrespective of the First Amendment. But if an idea is unpopular, the only thing that may protect it from the majority is a strong constitutional norm of content neutrality. (4)
Donald E. Lively questions how new powers will be exercised :
Reliance upon a community to enact and enforce protective regulation when the dominant culture itself has evidenced insensitivity toward the harm for which sanction is sought does not seem well placed. A mentality that trivialises incidents such as those Lawrence relates is likely to house the attitudes that historically have inspired the turning of racially significant legislation against minorities. (5)
But perhaps Ira Glasser puts it best in her introduction to the book :
First, the attempt by minorities of any kind — racial, political, religious, sexual — to pass legal restrictions on speech creates a self-constructed trap. It is a trap because politically once you have such restrictions in place the most important questions to ask are: Who is going to enforce them? Who is going to interpret what they mean? Who is going to decide whom to target?
The answer is : those in power. (6)
Another condemnation is that the codes are an exercise in self-indulgency, a trivialisation of real racial imperatives by the pursuit of relatively marginal and debatable concerns….
Donald E. Lively states : As a method for progress, however, protocolism (1) seriously misreads history and disregards evolving social and economic conditions, (2) is an exercise in manipulating and avoiding racial reality; and (3) represents a serious misallocation of scarce reformist resources. (7)
Speaking of Race, Speaking of Sex doesn’t just put the arguments against speech codes — it also deconstructs the arguments put in their favour. The three most interesting arguments in favour of such codes are, in my view, (1) that racist expression is not about truth or an attempt to persuade and so is not worthy of protection; (2) that racist declarations are in fact group libels; and (3) that racist expression is akin to an assault.
All three arguments are dismissed by the authors. In the first case, Justice Douglas is approvingly quoted :
(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have unsettling effects as it presses for acceptance of an idea. This is why freedom of speech, though not absolute is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardisation of ideas either by legislatures, courts, or dominant political or community groups. (8)
The second argument — that racist, sexist or homophobic statements are group libels — is likewise dismissed. The authors point out that libel involves the publication of information about someone that is both damaging and false. Apart from the obvious fact that group libel doesn’t refer to an individual does it fit the definition? Henry Louis Gates Jr. states that it does not. He points out that racist statements may be right or wrong but cannot in many forms be judged true or false. they are often statements of what the individual thinks should be or an expression of feeling. As Gates points out : You cannot libel someone by saying ‘I despise you’, which seems to be the essential message of most racial epithets. (9)
The last argument — that such speech represents an assault or words that wound — is examined, and also dismissed. The authors accept that words can cause harm. Their concern, however, is that no code can be drawn in such a way as to punish only words which stigmatise and dehumanise. They point out that the most harmful forms of racist language are precisely those that combine insult with advocacy — those that are in short the most political. (10) Attempts to deny that racist speech has a political content also deny that they are part of a larger mechanism of political subordination.
So, can we combat hatred on grounds of race, gender or sexual preference whilst cherishing and nurturing civil liberties? Can we encourage a diversity of thought as well as of population and lifestyle? The answer given by the authors of this book is an emphatic ‘yes’. They don’t see equality of opportunity and freedom of expression as being at odds. As such, their ideas are refreshing in contrast to the many who seem to have quite unthinkingly accepted that we must sacrifice our freedom on an altar of (faked) equality.
(1) Speaking of Race, Speaking of Sex page 207.
(2) ibid. page 226.
(3) ibid. page 43.
(4) ibid. quoted page 42.
(5) ibid. page 74.
(6) ibid. page 7.
(7) ibid. page 65.
(8) Terminiello v. Chicago, 337 US.I(1949) at 4.5
(9) quoted in Speaking of Race, Speaking of Sex page 219.
(10) Speaking of Race, Speaking of Sex page 30. ibid. page 26.