Southern Dreams and a New Theory of First Amendment Legal Realism
| Jurisdiction | United States,Federal |
| Publication year | 2015 |
| Citation | Vol. 65 No. 2 |
Southern Dreams and a New Theory of First Amendment Legal Realism
Richard Delgado
Jean Steancic
When legal realism swept through the law nearly a century ago, spelling the end to what Roscoe Pound called "mechanical jurisprudence," one enclave that emerged unscathed is the First Amendment, where shopworn rules, hidebound doctrinal boxes, and thought-ending cliches still hold sway. We show how this is so and give examples of a number of areas where change is in order. An examination of federal court cases having to do with hate speech and cross burning, as well as the wave of nativist sentiment that swept the South in the wake of increased Latino immigration, show how an application of legal realism would improve society's ability to respond more quickly and flexibly to change.
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When legal realism swept through the law over three-quarters of a century ago, scouring away what Roscoe Pound termed "mechanical jurisprudence,"1 most observers heralded the event as welcome—indeed, past due.2 Abandoning mechanistic formulas, rote rules, and thought-ending cliches, the new approach invited attention to the roles of power, social influence, countervailing values (balancing), the personal and class interest of judges, argument, rhetoric, culture, history, and politics in shaping legal doctrine. It paved the way for a host of legal movements, including critical legal studies, feminist legal theory, law and economics, and critical race theory, and rendered law more responsive to the needs of a changing society.3
Today, most agree that the realist revolution has improved legal process in practically every area. One enclave that has resisted it, however, is the First Amendment, where shopworn rules (no content discrimination), hidebound doctrinal boxes (speech versus action), and threadbare platitudes (the best response to bad speech is more speech) still hold sway.4 This Article offers examples of this resistance in two areas, explains how an infusion of realism would improve matters, and urges that we begin the process of reform.
An initial set of examples may be familiar to scholars of civil rights or the First Amendment—recent federal court decisions centering on hate speech and cross-burning. Coming down as they did within a short span of time, the cross-
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burning cases, R.A.V. v. City of St. Paul5 and Virginia v. Black,6 illustrate the evolution of First Amendment thought that this Article endorses. Two decisions having to do with campus hate speech and student conduct codes illustrate the opposite tendency.7 Decided by federal district courts in rural states with major universities, these decisions show how formalism can impede the development of rules that might otherwise enable institutions to cope with the needs of an increasingly multiracial society.8
A second example, discussed in Part II, may be less familiar but nevertheless of interest to those who follow developments in the South. This example concerns not case law but legislation and popular deliberations growing out of the wave of Latino immigration that this region has experienced in recent years.9 Featuring a host of oppressive laws10 and public
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outrage over an influx of Spanish-speaking newcomers looking for work, this rejection, which went far beyond that seen in other parts of the country, is counterintuitive. A conventional understanding of the marketplace of ideas implies that it should not have happened, yet it did.11
This negative reception is counterintuitive because a common theory of political speech holds that citizens and legislators deliberate in a variety of forums—legislative chambers, barbershops, town halls, letters to the editor—to determine where a region's self-interest lies.12 Yet, when Latinos began immigrating to this region in substantial numbers beginning in the early 1990s, discussion of their role in Southern life was short, angry, and simplistic.13 Stereotypes and preconceptions foreshortened discussion, taking precedence over the region's economic self-interest, humanitarian considerations, and vaunted Southern hospitality. As with campus conduct-code cases and one of the two Supreme Court decisions dealing with cross-burning, we theorize that First Amendment formalism explains this discursive failure, one that amounted, paradoxically, to a form of censorship.14
This Article continues a vein of scholarship investigating the fortunes of Latinos in national life. An earlier article analyzed a controversy over Mexican-American Studies in public high schools in Arizona.15 The current Article examines Southern reactions to Latino immigrants and the role of free-speech ideology in shaping those reactions. It also shows how our interpretation of events often has roots in a barely remembered past and develops a theory of meaning to explain how this happens.
A future article shows how events that roiled society a hundred years ago shape contemporary struggles over political ascendancy as two dominant
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political parties, one conservative, the other liberal, vie for control.16 Each article offers a lesson for lawyers—the need for a developmental approach to equal educational opportunity (in the first), the need to temper First Amendment formalism in political decision-making (this Article), and the role of judicial review in a nation that increasingly contains more than one discrete and insular racial minority (in the third).
Part I of this Article discusses legal realism and its reception in First Amendment scholarship and case law. Part II discusses realism at play in the legislative arena. Part III shows how an expanded conception of the First Amendment can improve analysis in both areas.
As the reader will see, the sections of the Article analyzing hate speech cases and those addressing legislative responses to immigration in the South combine analytically. Each pinpoints a seemingly separate problem owing to First Amendment formalism. But, in the end they emerge as integrated aspects and products of the same deficiency.
In August 1921, in a Birmingham, Alabama courtroom, a young attorney named Hugo Black received a choice assignment. A Methodist minister named Edwin Stephenson, who was a friend of Black's law partner, had killed a Catholic priest named James E. Coyle. Coyle had committed the grievous sin of marrying Stephenson's daughter to a middle-aged, dark-skinned Puerto Rican paperhanger named Pedro "Gussman" (probably Guzman) whom she had met at the local Catholic Church years earlier.17 The daughter, Ruth, was "literarily inclined" and, evidently, high-spirited, having run away from home at least twice.18 The father, unless he was given to Dickens, was apparently not literarily minded. He once whipped the daughter for staying out past nine thirty and on another occasion punished her for a minor offense by locking her in her room without food and water for three days.19
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After learning of the marriage and, even worse, her conversion to Catholicism, Stephenson went to see Coyle, accused him of marrying his daughter "to that nigger," and shot him to death.20
At the time of the trial, Birmingham was a "cesspool of racial and religious hatred."21 Most of the jurors, the foreman, and the aggrieved father were members of the Ku Klux Klan, which organized and paid for his defense.22
After a sensational trial, featuring Black's argument that Stephenson was "not normal" (i.e., insane) at the time of the murder, and klieg lights trained on Gussman to accentuate his facial features and skin color,23 as well as Black's accusation that the Catholic church had robbed a decent Methodist family of their daughter and that Stephenson had shot Gussman in a fit of understandable rage, the jury acquitted Stephenson by reason of self-defense.24 As his former law partner put it: "Hugo didn't have much trouble winning that verdict." Black's son agreed, noting that his father "was not beyond exploiting . . . race if that helped his client." After all, "he was only doing what a lawyer must do."25
The daughter and her father never reconciled, and she died a few years later at the age of thirty.26 Stephenson became a martyr and hero who travelled the state celebrating his victory.27
We recount this story because it contains, in capsule form, many of the elements of this article: Hispanophobia, religious orthodoxy, regional racial paranoia, suspicion of outsiders, and the manner in which community sentiment can influence legal results. It shows how First Amendment absolutism28 is perfectly compatible with racism and racial antipathy. Hugo Black was one of the Amendment's staunchest defenders.29 In his early years,
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he was also a member of the Ku Klux Klan30 and showed little hesitation about marshaling social taboos—religious and racial disapproval, Hispanophobia—to secure the acquittal of a murderer.31
Although by the time he ascended to the Supreme Court Black had tempered his views,32 the story of his defense of the Methodist minister shows how easy it is for an empowered actor, steeped in local culture, to manipulate racial antipathies while maintaining an entirely virtuous self-image.33
This Article begins the process of showing how this can happen and the role of First Amendment ideology in enabling it. Scholars have pointed out how First Amendment formalism can easily lead to doctrinal anomalies when courts examine cross-burning cases, for example, under precedents having to do with the law of theater marquees.34 They have also noted that even when this does not happen, formalism limits the range of considerations judges are able to bring to bear on sensitive cases,35 that the current approach gives insufficient weight to political dissent,36 and that a reaction to it is beginning to set in.37 Elsewhere, we noted...
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