Must We Defend Nazis?: Why the First Amendment Should Not Protect Hate Speech and White Supremacy - Softcover

Delgado, Richard; Stefancic, Jean

Softcover

ISBN 10: 1479857831 ISBN 13: 9781479857838

Verlag: Combined Academic Publ., 2018

Inhaltsangabe

A controversial argument for reconsidering the limits of free speech

Swirling in the midst of the resurgence of neo-Nazi demonstrations, hate speech, and acts of domestic terrorism are uncomfortable questions about the limits of free speech. The United States stands apart from many other countries in that citizens have the power to say virtually anything without legal repercussions. But, in the case of white supremacy, does the First Amendment demand that we defend Nazis?
In Must We Defend Nazis?, legal experts Richard Delgado and Jean Stefancic argue that it should not. Updated to consider the white supremacy demonstrations and counter-protests in Charlottesville and debates about hate speech on campus and on the internet, the book offers a concise argument against total, unchecked freedom of speech.
Delgado and Stefancic instead call for a system of free speech that takes into account the harms that hate speech can inflict upon disempowered, marginalized people. They examine the prevailing arguments against regulating speech, and show that they all have answers. They also show how limiting free speech would work in a legal framework and offer suggestions for activist lawyers and judges interested in approaching the hate speech controversy intelligently.
As citizens are confronting free speech in contention with equal dignity, access, and respect, Must We Defend Nazis? puts aside clichés that clutter First Amendment thinking, and presents a nuanced position that recognizes the needs of our increasingly diverse society.

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Über die Autorin bzw. den Autor

Richard Delgado (Author)
Richard Delgado is John J. Sparkman Chair of Law at the University of Alabama and one of the founders of critical race theory. His books include The Latino/a Condition: A Critical Reader (coedited with Jean Stefancic) and The Rodrigo Chronicles.

Jean Stefancic (Author)
Jean Stefancic is Professor and Clement Research Affiliate at the University of Alabama School of Law. Her books include No Mercy: How Conservative Think Tanks and Foundations Changed America’s Social Agenda. She and Delgado edited Critical Race Theory: The Cutting Edge.

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Must We Defend Nazis?

Why the First Amendment Should Not Protect Hate Speech and White Supremacy

By Richard Delgado, Jean Stefancic

New York University Press

Copyright © 2018 New York University
All rights reserved.

ISBN: 978-1-4798-5783-8

Contents

Preface, vii, 
1 The Harms of Hate Speech, 1, 
2 Hate Speech on Campus, 21, 
3 Hate in Cyberspace, 41, 
4 Neoliberal Arguments against Hate-Speech Regulation, 49, 
5 Neoconservative Arguments against Hate-Speech Regulation, 77, 
6 How Do Other Nations Handle This Problem?, 99, 
7 A Guide for Activist Lawyers and Judges, 107, 
8 "The Speech We Hate": The Romantic Appeal of First Amendment Absolutism, 135, 
References, 163, 
About the Authors, 165, 

CHAPTER 1

THE HARMS OF HATE SPEECH

A prime obstacle to reforming hate-speech law is the insistence by some that these forms of speech are harmless or that tolerating them is "the price we pay" for living in a free society. This chapter provides evidence that they are not at all harmless, and that free-speech ideology needs to change to recognize and deal with the harms they produce.

In Snyder v. Phelps (the Westboro Baptist Church case), a group of marchers from a fringe organization gathered on the street outside a funeral service being held to honor a war veteran in Maryland. Their protest had little to do with the war or the particular veteran who died in it. Instead, they picketed and marched to protest the American public's increasing acceptance of homosexuality, which they considered a sin. Deeply upset by what he considered the desecration of a solemn moment, the veteran's father sued for intentional infliction of emotional distress, defamation, and a few other counts. He described that he had become upset, tearful, angry, and physically nauseated to the point that he had to vomit. He stated that the defendants had rendered him unable to think of his son without thinking of the protesters' actions, adding, "I want so badly to remember all the good stuff ... but it always turns into the bad." Several expert witnesses testified that the defendants' behavior had worsened Phelps's diabetes and caused him to sink into depression.

A jury awarded him a considerable sum, but the Court of Appeals and Supreme Court reversed on the ground that the picketers' speech concerned a matter (treatment of homosexuals) of public interest and took place on public property — the street.

Earlier, in Contreras v. Crown Zellerbach, the Washington Supreme Court had held that a Mexican American's allegations that fellow employees had subjected him to a campaign of racial abuse stated a valid claim against his employer for the tort of outrage (an alternative name for the tort of infliction of emotional distress). The plaintiff alleged that he had suffered "humiliation and embarrassment by reason of racial jokes, slurs and comments" and that the defendant's agents and employees had wrongfully accused him of stealing the employer's property, thereby preventing him from gaining employment and holding him up to public ridicule. Focusing on the racial abuse, the court declared that "racial epithets which were once part of common usage may not now be looked upon as mere insulting language."

Only eleven months later, however, the U.S. Court of Appeals for the Seventh Circuit in Collins v. Smith affirmed a federal district court's decision declaring unconstitutional certain ordinances of the village of Skokie, Illinois, that had been drafted to block a demonstration by members of the National Socialist Party of America. The village argued that the demonstration, together with the display of Nazi uniforms and swastikas, would inflict psychological trauma on its large Jewish population, some of whom had lived through the Holocaust. The court of appeals acknowledged that "many people would find [the] demonstration extremely mentally and emotionally disturbing." Mentioning Contreras, the court also noted that Illinois recognizes the emerging tort of intentional infliction of severe emotional distress, which might well include racial slurs. Nevertheless, the threat of criminal penalties imposed by the ordinance impermissibly limited the plaintiffs' First Amendment rights.

Should our legal system offer redress for the harm of racist speech? The Washington case, from a liberal state court, implies that it should, at least if the remedy takes the form of a private action, a tort suit. Phelps and Collins (the Skokie case) imply that it should not, if the remedy takes the form of criminal punishment for behavior that took place in a public location.

A relatively recent cross-burning case, Virginia v. Black, suggests that punishment is constitutional if the hateful action takes place on private property and is targeted — aimed to intimidate a specific victim. Tort law, rooted in ancient Anglo-American tradition, has often served as a testing ground for new social sensibilities, which are later incorporated into our public law, for example campus conduct codes (see, e.g., chapter 2) or criminal statutes. Tort law thus serves as a kind of social laboratory for testing theories and assessing harms, which later can find their way into legislation and constitutional interpretation. Internet law may be the next such laboratory, as it is becoming increasingly clear that this is the site of some of the worst forms of social behavior (see chapter 3). As the reader will see, the cases in these two chapters span a long period and illustrate the slow development of the notion that society and its members require protection from hateful speech. Full citations to the main cases and principal texts can be found in an abbreviated list of references at the end of the book.

What, then, are some of the harms associated with racial insults? And how have courts viewed them over the years?

PSYCHOLOGICAL, SOCIOLOGICAL, AND POLITICAL EFFECTS OF RACISM

American society remains deeply afflicted by racism. Long before slavery became the mainstay of the plantation society of the antebellum South, Anglo-Saxon attitudes of racial superiority left their stamp on the developing culture of colonial America. Today, a century and a half after the abolition of slavery, many citizens suffer from discriminatory attitudes and practices infecting our economic system, cultural and political institutions, and the daily interactions of individuals. The idea that color is a badge of inferiority and a justification for the denial of opportunity and equal treatment is deeply ingrained.

Racial insults and remarks are among the most pervasive means by which discriminatory attitudes are imparted, communicating the message that distinctions of race are ones of merit, dignity, status, and personhood. Not only does the listener learn and internalize these messages, they color our institutions and are transmitted to succeeding generations.

The psychological harms of racial stigmatization are often much more severe than those created by other stereotyping actions, such as being left off a party list or being lined up, along with others like you, in the back row of the stage for a graduation exercise. Unlike many characteristics upon which stigmatization may be based, membership in a racial minority can be considered neither self-induced, like alcoholism or prostitution, nor alterable. Race-based stigmatization is therefore "one of the most fruitful causes of human misery. Poverty can be eliminated — but skin color...

Details zur Ausgabe

• Verlag: Combined Academic Publ.
• Erscheinungsdatum: 2018
• Sprache: Englisch
• ISBN 10: 1479857831
• ISBN 13: 9781479857838
• Einband: Taschenbuch
• Anzahl der Seiten: 176
• Kontakt zum Hersteller: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Niederlande