Are hate-speech rules constitutional heresy? A reply to Steven Gey.

• Author: Delgado, Richard
• Position: Response to Steven G. Gey, University of Pennsylvania Law Review, vol. 145, p. 193, 1996

In a recent article,(1) Steven Gey takes strenuous issue with proposals to regulate racist and misogynistic hate speech. Focusing on the work of Mari Matsuda, Charles Lawrence, and myself in the hate-speech area,(2) and Catharine MacKinnon and Andrea Dworkin in the area of pornography regulation,(3) Gey mounts the most sustained at tack yet on the view that interests of equality and dignity might sometimes justify limits on what may be said.

Gey writes impressively, with a complex argument and over 300 footnotes, yet in one respect his article is curiously incomplete. Much like an appellate brief, it is devoid of any serious consideration of countervailing interests. Most articles of this kind contain at least some token bow toward the interests of eighteen-year-old black and Latino undergraduates in not being reviled on account of who they are, or of a university in providing a welcoming environment in which everyone can learn without terror or abuse. One searches Gey's article in vain for the usual "we wish we could do something, but. . ."; or "let's try a different approach to controlling racism"; or even the slightly scolding "this is not the way" (which implies that another might be acceptable).(4) One finds, instead, a rather cold, technical exercise, coupled with sarcasm heaped on his adversaries for thinking the way they do.(5) One can almost imagine the author witnessing a group of fraternity members hurling epithets at a lone black undergraduate walking home late at night from the campus library, and rushing to intervene--but on the side of the harassers. ("Leave them alone. They have a right to do what they are doing.") All his instincts seem to lie on one side; the article trots in the other point of view only briefly, for purposes of refutation, and then ushers it out.

Gey's central argument is that my colleagues and I are no different from Senator Joe McCarthy, the Salem witch tribunals, and other historic controllers of speech.(6) And our reasons for wishing to exercise control, while perhaps less sinister, still emerge as unflattering elitism and fear of that which is politically radical.(7) In Gey's turned-around view, we are the ones guilty of intolerance-against Nazis, racists, Ku Klux Klan members, and purveyors of hard-core pornography, to be sure, but, in his view, still intolerance toward people who simply want to speak their minds.(8) Milton, Mill, Holmes, Brandeis, and other classic liberal theorists were right, says Gey(9)--we should hesitate to give government too much control over speech, for if we do, we could soon find it regulating our very thoughts and bedroom behavior.(10)

In this reply, I first address Gey's central premise about governmental control of speech. Then, I address some subordinate issues about hate-speech regulation: his contention that minorities have no business writing about hate speech because we are blinded by self-interest, for example. Finally, I offer a perspective for understanding social resistance, including articles like Gey's, to reform in this area.

1. THE ROLE OF GOVERNMENT

   Gey points out that anti-hate-speech activists have dishonorable predecessors in Supreme Court Justices who approved suppression of political speech.(11) But, of course, his heroes have their blind spots, too: Hobbes and Locke wrote approvingly of slavery,(12) and Holmes wrote Buck v. Bell(13) and was a camp follower of the American eugenics movement that advocated restrictions on the immigration of persons of color and controls on breeding of groups deemed inferior.(14) And, as everyone knows, the First Amendment coexisted with slavery for nearly one hundred years.(15) Is it a standoff, then--one side's favorite value and stock interpretation of history pitted against another's? I do not believe so, for Gey's characterization of the other side contains a glaring flaw: Controlling hate speech differs radically from controlling the speech of a political dissident.

   Consider an analogy from a related area, social and political satire. The classic writers in this genre, such as Swift, Voltaire, and Mark Twain, reserved their barbs for the wealthy and powerful kings and other governmental figures who abused power, the idle rich, or the complacent bourgeoisie.(16) They scrupulously avoided making fun at the expense of the poor or the crippled, but instead tweaked pomposity and self-importance among the ruling class.(17) "A root meaning of `humor' is humus--bringing low, down to earth ...."(18) Clearly, de flating a government bureaucrat or a puffed-up rich person stands on different footing from poking fun at someone who is poor or afflicted with a disease.

   A similar intuition applies to censorship. Suppression of speech is odious when it is government that is censoring the speech of a weak, voiceless dissident.(19) There, the dangers of silencing, governmental self-aggrandizement, and nest-feathering rise to their most acute level. A powerful actor like government should never be above criticism. But with hate-speech regulation, the opposite situation prevails--an arm of government, usually a university, is intervening to prevent private harm.(20) Far from trying to insulate itself from criticism, or intervening on the side of the powerful, the university is acting on behalf of persons who are disempowered vis-a-vis their tormentors. Because few, if any, of the dangers of censorship loom, it seems perverse to use the term in that way, just as it would sound strange to call a story ridiculing blind people satire.

   Gey is particularly concerned with the social-construction justification for anti-hate-speech measures.(21) I think it perfectly sensible--who would want to live in a society ten or twenty percent of whose members were regularly demeaned by face-to-face insults(22) and in popular culture? But even if not, this is by no means the only interest proregulation writers have advanced. Racist speech damages the dignity, pecuniary prospects, and psyches Of its victims(23) (particularly children),(24) while it impedes the ability of colleges to diversify their student bodies.(25) When severe or protracted, it can even cause physical sickness, including high blood pressure, tremors, sleep disturbance, and early death.(26) In focusing only on the most abstract and novel of the justifications, Gey has overlooked that hate-speech rules are necessary to promote a number of social and educational objectives of a quite ordinary nature. Moreover, Gey himself often blithely invokes the informed social consensus or "common understanding"(27) as though these were not social constructs, and ignores that the status quo (in which minorities suffer frequent slights and insults) has a bias, too.(28) Social constructionism, it turns out, is impermissible only when wielded by minorities seeking to change the prevailing situation.

   In addition, in his fixation on the supposed political dangers of hate-speech regulation, Gey overlooks the numerous other "exceptions" and special doctrines that riddle free-speech law-libel, defamation (even of vegetables and produce), words of threat and of monopoly, state secrets, copyright, plagiarism, disrespectful speech uttered to a judge or other authority figure, and many more.(29) With these, the state intervenes on behalf of actors who are quite empowered, such as the military, agribusiness, or the community of commercially successful authors, and where the risks of aggrandizement and increase of power are very real. Government, authors, consumers, and other powerful groups are able to suppress speech that offends them, but when a university proposes a speech code to protect some of the most defenseless members of society--black, brown, gay, or lesbian undergraduates at dominantly white institutions--Professor Gey charges us with constitutional heresy and warns that we will all end up thought-controlled zombies.(30) But racism is a classic case of democratic failure; to insist that minorities be at the mercy of private remonstrance against their tormentors--and that the alternative is censorship--is to turn things on their head.

2. OTHER PIECES OF THE PICTURE

   Gey levels other charges against the hate-speech camp. As minorities in most (but not all) cases,(31) we are apt to be partial--too close to the problem to write about it objectively.(32) But then why is Gey, a white male, not similarly disqualified from taking the contrary position? Readers are of course capable of evaluating for themselves an argument made by a minority, just as they are one by Gey, but his oversight of the way that his own argument cuts both ways is telling. An example of white transparency,(33) it shows how the white point of view masquerades as colorless, raceless, and systematically devoid of bias.(34) Gey's argument not only ignores much recent scholarship, but also would disqualify consumers from arguing for consumer protection laws, medical patients from urging changes in medical malpractice law, and anyone else with an interest in a controversy from writing about it--clearly not a position we take in general.

   Gey also argues that everyone has the right to be obnoxious and wrong.(35) But this certainly is not true--we regulate many forms of obnoxiousness, and should.(36) Nor do anti-hate-speech advocates argue for regulation of hate speech because it is wrong in any factual sense. The campus tough who snarls, "N--, go back to Africa. You don't belong on this campus," is not conveying information. The victim already knows that he is an African-American, that the speaker and many others do not like him or welcome his presence on campus, and that his ancestors came from Africa. Face-to-face hate speech conveys no information. It is more...