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Banning Racist Speech Begs the Real Questions of Curbing Racism : Codes: Telling students what they cannot say, even when bigotry is the target, is a bad idea. More speech, not less, is better protection.

October 14, 1990|Lisa M. Fleischman | Lisa M. Fleischman is an attorney in New York

NEW YORK — The American idea of free speech hinges on the basic principle that, subject to a very few, very narrow exceptions, everyone may say what he wishes, even if what he says is poisonous or hateful. A true democracy cannot do otherwise. Democracy determines the form and procedure by which its citizens discourse; it may not determine the content of that discourse.

But a new trend may be emerging. A series of speech codes have been enacted on various campuses, including Stanford, the UC Berkeley and the University of Wisconsin. If you say something racist, you can be suspended or expelled. The codes themselves are usually narrowly drawn to cover the face-to-face, intentional racial insult and, as such, they may even pass constitutional muster. It is the justifications offered for these codes that are worrisome.

The speech codes--one is tempted to say "loyalty oaths"--are usually defended by law professors, who should know better. One of them, Mari Matsuda of the University of Hawaii, has been a primary proponent, proposing a ban on racist speech, a "value-laden, non-neutral" approach that she proudly describes as "heretical" to First Amendment thinking. "Speech is meaningless to people who don't have equality," she says. Only oppressed groups would be protected because "retreat and reaffirmation of personhood are more easily attained for historically non-subjugated groups."

Leave aside for the time being the sociology jargon and an apparent desire for the notoriety that leads to tenure. Turn, instead, to the basic concepts of this philosophy. The starting point is the idea that speech is meaningless to people without equality. And yet the whole concept of banning speech is premised on the idea that it is very meaningful, indeed. We must protect minorities from racist speech because speech is in some way important. Why protect them? Because racist speech degrades and insults them.

Racist speech is, without any doubt, degrading and insulting. As a Eurasian, I can assure you that it is far more debilitating than most whites realize. Perhaps the only thing more degrading and insulting is the assumption that one is too weak, too cowardly, too helpless to stand up for oneself against the racists.

Victims of racist speech can shout back, throw a good left jab, file a complaint, organize a boycott or a picket line. Or maybe--and this is much tougher--they can just study hard, graduate at the top of their class and let success be their revenge. Surely overreacting to racists is to allow them to have more importance than they deserve.

But however one chooses to react, it seems counterproductive to cultivate delicate sensibilities, or to nurse a conviction that one is entitled to protection from the rough and tumble of life. It is ironic that the beneficiaries of the campus speech codes are university students, who probably confront a great deal less real racism than most ordinary working people.

What about the idea that the way to prevent or end racism is to silence everyone who doesn't belong to a "historically subjugated group"? Many whites--Irish, Jews, and Armenians, for example--have claims to historical subjugation. And a lot of racism doesn't involve whites at all, but exists between members of different minority groups. If we prohibit racist speech by other minorities, are we subjugating them more? Do we have to choose which group has been historically more subjugated in order to decide whose rights to enforce?

Perhaps the saddest outcome of this largely academic insistence on form over substance is that it distracts from real problems of economic inequality based on race. Bans on racist speech don't prevent racism, or even its expression. It's hard to solve real problems but easy to make up trendy proposals regarding other people's civil liberties.

Does racism silence minorities? Most certainly. But accusations of racism, in America today, are at least as silencing. People with good intentions, trying to explain complex or ambiguous feelings, can be silenced immediately by the accusation of racism. And that's the tragedy of the speech code. It won't stop real racists, who don't care how they are perceived. It will only stop people who actually care about how minorities view them.

The response to minorities who feel silenced is to encourage them to talk, not to silence everyone else. The solution to bad speech has always been, and always will be, more speech.

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