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Racial discourse, hate speech, and political correctness
When men open doors for women, they often say with a smile, "I know this is not politically correct but...." The request by groups that the literary canon be expanded to include the works of people of color and women has been denominated an example of political correctness. Efforts to diversify faculty also meet the political correctness charge, and concerns about pornography, hate speech, and sexual harassment are tarred by the same politically correct brush. The now broad usage of the phrase makes succinct characterization problematic, but in general the most serious charge of political correctness is an accusation that one espouses a cramped, narrow orthodoxy, or worse, censorship of free expression. At the extremes, critics of "political correctness" include charges of authoritarianism.
Our discourse on hate speech has been fundamentally altered by the charge of political correctness; it has changed the discussion from one that focuses on purveyors of hate to one that focuses on objectors to hate. In this context, the charge of political correctness is a clever rhetorical phrase that has turned a debate about racism and its lingering manifestation into a debate about censorship.
During the 1960s civil rights movement, we observed film footage that graphically portrayed the violence associated with racist epithets. This footage helped us to understand the relationship between hate speech and the question of equality both emotionally and intellectually. We were officially embarrassed and ashamed of these frank demonstrations of hate. And we seemed to understand that words as well as actions played a key role in a regime of separation and subordination. We also knew that certain words were audible reminders of an ideology of racial supremacy and inferiority, and that such language signaled a rejection of the ideal of equality we hoped to belatedly embrace.
For a moment it seemed that we were clear about racist hate speech. We concluded that it was the expression of the ideology of racial inferiority which had been central to our constitutional and popular culture. Pursuant to new civil rights statutes, our judges ruled that racially hostile environments violated the law. Official rules as well as customs eradicated the use of racial epithets from public life and required the punishment of public figures if they repeated their private verbal indiscretions. There was no public argument, on any ground, that racist speech was harmless or useful. Or perhaps there was no one willing to make that case.
The New Public Argument
Now, however, we do have a public argument about the permissibility of racist speech. The pre-1965 public argument was that racist speech conveyed truthful and appropriate messages about the worth of those maligned. The old public argument was fairly similar to the private argument. But the new public argument eschews the endorsement of specific language and the endorsement of racial inequality. The new public argument is that any curtailment or punishment of racist speech not only would violate First Amendment principles but also would have a chilling effect on freedom of expression.
The new public argument is much more attractive than the old ones. In the first place, the new argument appropriates a major premise difficult to refute--that liberty and freedom of speech are fundamental. In addition, the new public argument avoids the messy and embarrassing discussion of the particular words that users of racist speech hurl to remind certain people that they are not equal and that they are still at risk. The new public argument is also attractive to a wider range of people, some of whom are prominent and above reproach, intellectually and professionally, and provides the proponents of racist ideology some new and respectful bedfellows. The public argument does everything a good public argument should do--it provides a lofty and unassailable rationale for behavior that one could not directly defend. Moreover, these arguments may be asserted without discussing the particular behavior at all. And the new public argument "spins" the arguments against racist speech into arguments against liberty, choice, and freedom.
It is tempting to focus solely on the charge of censorship and ignore the role the charge plays in obscuring the full dimensions of the problem of racial harassment. The charge is an attractive one because we instinctively associate free speech with our important notions of freedom. But the effectiveness of political correctness charges depends on the degree to which censorship accusers can maintain this discussion at a high level of abstraction because it avoids any affiliation with those who actually engage in racial harassment.
In addition, those who focus on censorship also fail to identify or specifically discuss the words or ideas contained in the speech they aim to protect. How different the reaction to discussions of hate speech might be if the opponents of speech regulation framed their arguments in affirmative terms that embrace both the language and the acts empowered by these abstract arguments. It is the use of abstractions and the maintenance of a high level of generality in the discussion of freedom and liberty that give the censorship charge its force.
The core question, then, is whether we should be satisfied with a formal equality that in substance continues a pattern of the subordination of groups, despite their recent access to employment, housing, and education.
Arguments framed in terms of political correctness become arguments against public responsibility for the transformation of institutions and the end of institutional racism. In fact, they are implicit arguments that individuals may determine institutional policy by deciding whether to harass and how viciously. They are also implicit arguments that harassed individuals must bear the costs of resistance to their enjoyment of full citizenship and self-fulfillment. The arguments against institutional environmental measures are arguments for a privatization of responsibility for equality and abdication of institutional responsibility for substantive institutional transformation. The foes of political correctness want to privatize the question of the liberty of individuals to speak freely. Historical victims of racism bear the costs of this privatization policy.
Deliberately, this essay avoids a legal focus. The harms caused by the antipolitical correctness movement transcend Legal issues. The movement creates doubt about the legitimacy of policy that addresses language and environmental concerns and applies an anticonstitutional tar to those who propose to address questions of harmful language and expressive conduct. The movement creates a political and cultural climate tolerant of hate and hostile to the enjoyment of equal participation in society by previously excluded groups.
Free Speech Absolutism
In addition to these problems caused by the antipolitical correctness movement, the movement also rests its case on broadly conceived free speech principles that, while important, do not support the grand claim that all speech suppression is unconstitutional. A cursory review of free speech doctrines past and present reveals that free speech absolutism has never been the law of the land. We permit the regulation of speech in the context of intellectual property; we sanction for plagiarism; and we permit damages for libel and defamation.
Our constitutional law permits the suppression and punishment of obscenity and the regulation of advertising (for example, we permit the punishment of misleading or false statements in a prospectus offering to sell securities). Until recently, we assumed that the prohibition of sexual and racial harassment in our schools was yet another example of a circumstance in which a strong societal interest justified some limitation on speech. How ironic that we miss the outcry against the above-noted examples of speech suppression but hear a loud chorus where the speech implicates the very selfhood and dignity of individuals.
To be fair, there are important First Amendment concerns at stake when the government suppresses any speech, including hate speech. Over the last twenty-five years, the Supreme Court has incrementally and substantially embraced the general notion that government acts unconstitutionally when it suppresses speech on the basis of the subject matter or viewpoint expressed. These decisions are grounded on the Court's conclusion that important values underlie the First Amendment--the autonomy of individuals and their freedom of conscience, the search for truth, the importance of public debate on political issues--and that these values may be compromised by governmental suppression of speech. These are sound values, but they are not necessarily compromised by the suppression of racial hate speech.
In the case of hate speech--the use of epithets and similar words with which the speaker intends to cause emotional harm and grievous insult--an analysis may not simply yield the same value compromising result. For example, questions of autonomy, conscience, and free will have implications for the person addressed as well as the speaker, and we cannot dismiss the autonomy and conscience-formation concerns of the hearer of derogatory words that are chosen to destroy confidence and effectiveness. In addition, the general importance of facilitating the search for truth in a free marketplace of ideas both assumes that racial hate is just another idea rather than an original and enduring flaw in our historical experience and also assumes that the epithets contribute to that search.
And, the importance of open debate on political issues is uncontested, but when the specifics of the viewpoint implicated in epithets is excavated, we may conclude that we have closed debate on the issues of equal rights, or that there are many other arenas for the continuation of the debate. We also can conclude that epithets which disturb the peace by provoking violent response compromise the hearer's ability to participate in that debate by destroying confidence and interfering with the ability of others to regard the individual and her group as equal participants in that debate. Finally, the objectives that underlay some efforts to suppress speech--nondiscrimination in the workplace, in the acquisition and retention of housing, or in the pursuit of an education, may be so important to the hearer's ability to participate vigorously in the polity as to justify some narrowly drawn protective measure.
RAV v. St. Paul
These general observations aside, the most recent Supreme Court decision on hate speech, the cross-burning case of RAV v. St Paul, does not foreclose policies that curtail hate speech. Some confusion is expected and normal because all members of the court found unconstitutional a statute that punished a Klan-type cross burning on the property of a Black family. The result justifies legitimate concern about the future constitutionality of any code or law that punishes hate speech, but a closer examination of the various rationales shows that the court has not foreclosed all racial and hate speech suppression.
The five-justice majority opinion in RAV, written by Justice Scalia, said that racist hate speech--in this case personalized cross burning--could not be singled out for suppression while the government permitted other kinds of invective that might provoke violence. In the words of the opinion, "the First Amendment imposes...a 'content discrimination' limitation upon the State's prohibition of proscribable speech." According to the Court, the problem with the ordinance was that it applied only to fighting words on the basis of race, color, creed, or religion and that this limitation embodied both content discrimination and viewpoint discrimination. However, the majority decision did suggest that the state might criminalize threats of violence as long as it did not select the threat of violence to be criminalized on the basis of the content of the speech used. The majority decision also suggested that the state might criminalize, regulate, or punish a type of conduct--such as sex discrimination--and prohibit sexually derogatory words to make the prohibition against sex discrimination effective,
The remaining four Justices agreed that the ordinance was unconstitutional but on different grounds. Justice White (with Blackmun, O'Connor, and Stevens) wrote both to express disagreement with the majority rationale and to suggest another theory upon which the statute was unconstitutional. Justice White's opinion concluded that the statute was unconstitutional because it punished both protected speech (that which simply hurt feeling and did not provoke violence) and "fighting words," a category of unprotected speech. Thus, these Justices suggested that a law or code that focused on fighting words which provoked violence would be constitutional.
And though Justice Stevens agreed with Justice White chat the ordinance was unconstitutionally overbroad, he wrote separately to emphasize his view hat the "scope of protection provided expressive activity depends in part upon its content and character as well as on the context of the regulated speech. The distinctive character of a university environment or a secondary school environment, influences our First Amendment analysis." A close reading of these opinions reveals that there may be ample room for debate about the constitutionality of hate speech codes and laws, and the RAV case did not categorically foreclose them. Rather, the case suggests that in certain circumstances all members of the Court would sanction suppression of racial hate speech.
In any event, while constitutional law determines the range of legal options, the social and political climate determines whether government will fully exercise its options. In a curious way, the foes of political correctness have made it "politically incorrect" to contemplate or advocate speech suppression under any circumstance. They have certainly achieved their censorship aims by raising the stakes of opposition to racial harassment.
Political Correctness and Social Transformation
The discourse of political correctness thinly veils an underlying and persistent unease about fundamental questions of social transformation in institutions and in society at large. In this regard, its effect is similar to that of "reverse discrimination" and "innocence" language in contexts of remedies for discrimination. Both charges--reverse discrimination and "political correctness-divert attention from fundamental questions about the content of equality for historically excluded groups to questions of privilege for historically included groups. The charges create new "victims" who assert rights violations rather than stake claims of historical privilege. These sound-bite discursive strategies provide effective ideological cover to proponents of a limited version of equality that tolerates token entry but still requires submission to subordinating practices.
The charge of political correctness is an intriguing social phenomenon that has provided much fun at great cost. The charge has diverted our attention from the second-generation problem of equalitythe terms of inclusion in previously segregated institutions. The role of harassment and intimidation in the maintenance of subordination is both historical and enduring. While foes of political correctness charge the imposition of orthodoxy, their efforts support the survival of an orthodoxy far more troubling-that racial harassment is both ordinary and privileged. There is much room for debate over the appropriateness of particular measures. But the argument that restraint of racial harassment is impermissible is the equivalent of the untenable proposition that individuals must accept rights--housing, education, employment--under subordinating conditions. The charge that measures to provide more than token equality impose political correctness obscures the equality dimension of racial hate speech. The censorship charge cloaks permissiveness on racism in a lovely philosophical garment. The time has come to strip it away and look directly at the ugliness it conceals and protects.
Linda S. Greene is a professor of law at the University of Wisconsin Law School. She is a former counsel to the United States Senate Judiciary Committee and is the president-elect of the Society of American Law Teachers and a regular political and legal commentator on Wisconsin Public Television.