truth or consequences: putting limits on limitstruth or consequences 323 contested cases; but i also...

Truth or Consequences:Putting Limits on Limits

HENRY LOUIS GATES, JR.

You 're not talking about things about which people are entitledto disagree.

Catharine MacKinnon

It is by the goodness of God that in our country we have thosethree unspeakably precious things: freedom of speech, freedomof conscience, and the prudence never to practice either of them.

Mark Twain

THESE ARE CHALLENGING TIMES for First Amendmentsentimentalists. Afrer decades in which the limits of ex-pression were steadily pushed back, the pendulum, to

switch metaphors, is beginning to swing the other way. Legalscholars on the lefr are busily proposing tort approaches towardhate speech. Senator Jesse Helms attaches a rider to a bill fundingthe National Endowment for the Arts that would prevent it fromsupporting offensive art—the terms of offense being largely im-ported from a Wisconsin hate-speech ordinance. What RobinWest calls the feminist-conservative alliance has made significantinroads in municipalities across the country, while the Canadian

This paper was given as the eleventh annual James Russell Wiggins Lecture in the Historyof the Book in American Culture, held at the American Antiquarian Society on November4. '993-

HENRY LOUIS GATES, JR., is W.E.B. Du Bois professor of the humanities, chair ofAfro-American studies, and director of the W.E.B. Du Bois Institute for Afro-American

Research at Harvard University.

Copyright © 1993 by Henry Louis Gates, Jr.

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Supreme Court has promulgated Catherine MacKinnon's ap-proach toward pornography as law of the land. And the currentlyfashionable communitarian movement has given the impressionthat it believes that excessive deference has been given to the creedof free speech. In short, over the past few years, a new suppres-sionist alliance seemed to betoken the declining significance ofliberalism.

I take our topic this evening to be rather more narrowly cir-cumscribed, focussing on the limits of expression in Americanintellectual life. But intellectual life doesn't exist as a sanctuaryaloof from the larger currents that run through our polity. I shouldalso say that Eirst Amendment expansionism has never entailedabsolute devotion to free expression; the question has always beenwhere to draw the line. Even the Supreme Court's most expansiveinterpretation of Eirst Amendment protection has always comewith a Hst of exceptions, such as hbel, invasion of privacy, andobscenity. 'Categorization' is the legal buzzword for decidingwhether expression is protected by determining which categorythe expression falls into—having first determined whether it qual-ifies as expression at all. While speech may be a species of conduct,much in case law still hangs on whether conduct (say, nude dancingin South Bend, Indiana, to allude to a case the Supreme Courtdecided a couple of years ago) will be allowed to count as expressionfor Eirst Amendment purposes. Various refinements on the testhave been proposed. To John Hart Ely, for example, the questionfor judicial scrutiny shouldn't be whether something is expressionor conduct, for everything is both, but whether it is the expressivedimension of the speech-conduct amalgam that has provoked itsprosecution. One may suspect that this refinement merely defersthe difficulty of distinguishing. At the very least, Catharine Mac-Kinnon's position—which extends no particular protection to 'ex-pression' over 'conduct'—has the advantage of coherence. (Moreproof that, in the real world, theoretical coherence is an overratedvirtue.) *

In their categorizing mode, the courts have also respected a

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general hierarchy of protected speech, such that political speechis deemed worthy of significant protection while commercialspeech is highly subject to regulation. But even political speech issubject to the old clear-and-present-danger exemption and a clus-ter of variants. To venture into murkier waters, the issue of speechmanagement arises in the highly contested matter of 'publicforum': where may one exercise these supposedly valuable rightsof free speech? How much (if any) access to these forums will weenjoy? And this isn't even to consider the unbounded array ofcriminal and civil offenses that are enacted through expression. AsFrederick Schauer, Stanton Professor of the First Amendment atHarvard University, has observed, absolute protection wouldmake unconstitutional 'all of contract law, most of antitrust law,and much of criminal law.' In view of this brambly legal landscape,to invoke the First Amendment as if it settled anything by itselfcan sound very much like know-nothingism.

When the myth of the self-justifying First Amendment is putaside, the armchair absolutist is left with his two fall back argu-ments. Dredging up childhood memories, he comes up with thatplayground chant about sticks and stones. Offensive expressionshould be protected because it is 'only words' and costs nothing.But if words really were inert, we wouldn't invest so ihuch in theirprotection; it is a vacuous conception of expressive liberty that ispredicated upon the innocuousness of its exercise. 'Every idea isan incitement,' Justice Holmes famously wrote, albeit in dissent.In his recent history of obscenity law, Edward de Grazia tells ofan especially sad and instructive example of the power of words tocause harm. Evidently the heated rhetoric of Catharine MacKin-non's 1984 campaign for an antipomography ordinance in Min-neapohs moved one young supporter to douse herself withgasoline and set herself afire. Porno for pyros, indeed.

This leaves us with the armchair absolutist's Old Reliable: theslippery-slope argument. Perhaps racist speech is hurtful and with-out value, he or she will concede, but tolerating it is the price wemust pay to ensure the protection of other, beneficial and valuable

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speech. The picture here is that if we take one step down from themountain peak of expressive freedom we'll slide down to the valleyof expressive tyranny. But a more accurate account of where wecurrently stand is somewhere halfway up the side of the mountain;we already are, and always were, on that slippery slope. And itsvery slipperiness is why First Amendment jurisprudence is sostrenuous, why the struggle for traction is so demanding.

I should be clear. Slippery-slopeism isn't worthless as a consid-eration: because the terrain is slippery we ought to step carefully.And there are many examples of 'wedge' cases that have led toprogressive restricdons in civil liberdes. (For example. Bowers v.Hardwick, the 1986 case in which the Supreme Court affirmed theconsdtudonality of statutes prohibidng private, consensual sexbetween men, has since been invoked in over one hundred stateand federal court decisions denying the right to privacy.) Even so,slippery-slopeism sounds better in the abstract than in the pardcu-lar. For one thing, courts often must balance conflicdng rights—aswith 'hosdle environment' cases of work-place harassment. Foranother, we do not always know immediately if the step taken willuldmately lead us downhill or up—as with William Brennan'sdecision in Roth v. United States, which affirmed Stanley Roth'sconvicdon for publishing an Aubrey Beardsley book and declaredobscenity to be utterly without redeeming value. The wording ofthat decision, however unpromising at first glance, turned out tobe a boon for the civil libertarian posidon.

Sdll, it must be said that the salient excepdons to First Amend-ment protecdon all involve the concrete prospect of significant—and involuntary—exposure to harm: typical examples includespeech posing imminent and irreparable threat to public order orthe nadon; libel and the invasion of privacy; and the regulateddomain of'commercial speech,' encompassing, for instance, 'bluesk/ laws governing truth in adverdsing. (Obscenity is the notabledeviadon from this norm.) I like to describe myself as a FirstAmendment sendmentalist, because I believe that the FirstAmendment should be given a generous benefit of the doubt in

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contested cases; but I also know that there are no absolutes in ourfallen state.

II

Let me admit, at the same dme, that I believe some figures on theacademic/cultural lefr have too quickly adopted the strategies ofthe polidcal right. Here, I'm thinkingprincipally of that somewhatshopworn debate over 'hate speech' as a variance from protectedexpression, and it may be a topic worth reviewing briefly.

As Michael Kinsley has pointed out, most college statutes re-stricdng freedom of expression were implemented by conservadveforces in the early sevendes. Under the banner of 'civility,' theirhope was to control campus radicals who seized on free speech asa shield for their own acdvides. Ironically, however, the very ascentof liberal jurisprudence in the sixdes finally made it less appealingfor left and opposidonal intellectuals who viewed such formal civilliberdes as a subterfuge and radonale for larger social inequides.The sort of intellectual contrarians and vanguardists who wouldhave rallied behind the ideology of freedom of expression in thedays before its (at least pardal) ascendance are now, understanda-bly enough, more disposed to explore its limits and failings. Andso the rubric of'free speech,' in the 1960s an empowering rubricof campus radicals, has today been ceded to their conservadveopponents as an ironic instrument of requital. As a result, theexistence of speech ordinances used by conservadves in the earlysevendes can today be cited as evidence ofa marauding threat fromthe thought police on the left. Well, at the very least, I think theconvergence of tacdcs from one era to another ought to give uspause.

Let me be clear on one point. I am very sensidve to die issuesraised in the arguments for hate-speech bans. Growing up in asegregated mill town in Appalachia, I thought there was a sign onmy back saying 'nigger' because that's what some white folkseemed to think my name was. So I don't deny that the languageof racial prejudice can inflict harm. At the same dme—as theSondheim song has it—'I'm sdll here.'

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The strongest arguments for speech bans are, when you examinethem more closely, arguments against arguments against speechbans. They are ofren very clever; ofren persuasive. But what theydon't establish is tJiat, all things considered, a ban of hate speechis so indispensable, so essential to avoid some present danger, thatit justifies handing their opponents on the right a gifr-wrapped,bow-tied, and beribboned rallying point. In the current environ-ment of symbolic politics, tiie speech ban is a powerful thing: itcan turn a garden variety bigot into a First Amendment martyr.

So my concern is, first and foremost, a practical one. The prob-lem with speech codes is that they make it impossible to challengebigotry without its turning into a debate over the right to speak.And that is too great a price to pay. If someone calls me a nigger,I don't want to have to spend the next five hours debating the finepoints of John Stuart Mill. Speech codes kill critique.

I l l

Given the fact that verbal harassment is already, and pretty uncon-troversially, prohibited; given the fact, too, that campus speechbans are rarely enforced, tiie question arises: do we need them?Their proponents say yes—but they almost always offer expressiverather than consequentialist arguments for them. That is, they donot say, for instance, tiiat the statute will spare vulnerable studentssome foreseeable amount of psychic trauma. They say, rather, thatby adopting such a statute, tiie university expresses its oppositionto hate speech and bigotry. The statute symboHzes our commit-ment to tolerance, to the creation of an educational environmentwhere mutual colloquy and comity are preserved. (The conserva-tive sociologist James Q. Wilson has made tiie argument for thecase of obscenity when he writes of his 'belief that human characteris, in the long run, affected not by occasional furtive experiencesthan by whether society does or does not state that there is animportant distinction between the loathsome and the decent.')

Well, yes, things like tolerance and mutual respect sound likenice things to symbolize. What we forget is that once you have


retreated to the level of symbolic, gestural politics, you have totake into account all the other symbolic considerations. So even ifyou think that the fi"ee-speech position contains logical holes andinconsistency, you need to register its symbolic force. And it is thislevel of scrutiny that tips the balance in the other direction.

Sdll, I would insist that there is nothing unusual about themovement's emphasis on the expressive aspect of the law. 'Tolisten to something on the assumption of the speaker's right to sayit is to legitimate it,' the conservative legal philosopher AlexanderBickel has told us. 'Where nothing is unspeakable, nothing isundoable.' And I think there's an important point of convergencethere: Bickel's precept underlies much of the contemporary resis-tance to unregulated expression on campus and elsewhere. Eor thenip side of the view that hate-speech ordinances are necessary toexpress sincere opposition to hate speech is the view—which re-curs in much of the literature on the subject—that to tolerate racistexpression is effectively to endorse it: the Bickel principle. Thus,'Government protection of the right of the Klan to exist publiclyand to spread a racist message promotes the role of the Klan as alegidmizer of racism,' as Mari J. Matsuda writes. Her colleagueCharles Lawrence III suggests further that merely to defend civilhberties on campus may be to 'valorize bigotry.'

Like many other positions identified with the hate-speechmovement, the thesis that toleration equals endorsement is not asradical as first appears. In fact, this is precisely the position elabo-rated by Lord Patrick Devlin in 1965, in his famous attack on theWolfenden Report's recommendation to decriminalize homosex-ual behavior in Britain. 'If society has the right to make a judg-ment,' he writes, 'then society may use the law to preserve moralityin the same way as it uses it to safeguard anything else that isessential to its existence.' On this basis, he argues, 'society has aprima facie right to legislate against immorality as such.' In Dev-lin's account, as in Matsuda's, the law expresses the moral judg-ment of society; to countenance things that affront public moralityis thus a betrayal of its purpose.


Of course, Matsuda's belief that the government that protectsthe rights of the Klan has promoted its views would have manysurprising consequences. One might conclude that the govern-ment that provided civic services to the march on Washington inMarch 1993, was solidly behind the cause of gay rights. Or that,in giving police protection to several of the Reverend Al Sharpton'smarches in New York, it was lending its moral support to the causeof black resistance. Or that, in providing services to the Wigstockfestivities in Tompkins Square Park, it was plumping for transves-dtism. Or that, in policing rallies both in favor of abortion andopposed to it, it was somehow supporting both positions. Onemight, but of course one wouldn't. And since, in the scheme ofthings, policing Klan marches commands a tiny fraction of thestate's resources—less, I would surmise, than do such African-American events as Caribbean Day parades—our worries on thisscore seem misplaced.

IV

But there's a larger issue involved: Is the regulation of verbalexpression among the laity the right place to begin, if your concernis to redress broad-gauged injustice? Can social inequity be cen-sored out of existence?

As an English professor, I can report that our more powerful'discourse theories'—focussing on the pohdcal dimension of themost innocent seeming texts—can encourage this dream. But so-cial critique allies itself with its natural antagonist, the state ap-paratus of law enforcement, at its own peril. There are states—andIslamic ones are the most obvious in their vigilance—that doengage in the widespread censorship of public representations,including imagery in advertisements, television, and entertain-ment. Their task is not, say, to censor misogyny and perpetuatesexual equality but to cover the elbows and ankles of females anddiscourage blasphemy, prurience, and other illicit thoughts.

A reluctance to embark on any such exercise of massive statecoercion does not wed one to the status quo. To defend the free-


speech right (or even, as Miller v. California requires, the cultural'value') of racist or misogynisdc material is not to defend racismor misogyny—nor is it to shun, silence, or downgrade their socialcridque. To insist that expression should be free of state censorshipis not to exempt it from cridcal censure. This is a point that bothKimberlé Crenshaw and I have argued elsewhere in connecdonwith the Broward County prosecudon of Luther Campbell andcompany.

To be sure, the disdncdon would mean litde to some crides ofFirst Amendment expansionism. On the one hand, CatharineMacKinnon would observe that we do not find it sufficient to'cridque' rape; we punish it. Since, for MacKinnon, expressiondegrading or hosdle to women is as much an act of violence asother crimes of violence against women, such expression shouldbe the subject of criminal and civil sancdons aimed at its abolidon.

Nor has the literary or cultural realm been held to be exemptfrom these strictures. Suzanne Kappeler has argued that there are'no sanctuaries from polidcal reality, no aesthedc or fantasdc en-claves, no islands for the play of desire.' It's a charge that FederalCircuit Judge Richard Posner (a former clerk of Jusdce WilliamT. Brennan, Jr.) has neady turned on its head. If so, Posner rejoins,'the vilest pornographic trash is protected.' After all, 'ideologicalrepresentadons are at the center of the expression that the FirstAmendment protects.' (This also highlights the contradicdon be-tween modem obscenity law and MacKinnonism: according toliberal jurisprudence, the obscene has, by sdpuladon, no signifi-cant polidcal content; according to MacKinnonite jurisprudence,it's precisely the significant polidcal content of obscenity thatmakes it obscene.)

Even if social benefits were to result from censorship of rep-resentadons, moreover, there are reasons not to accede to such aregime. And versions of such content-based restricdons aboundin other countries. In Britain, it is illegal to foment racial hatred;hterature propagadng such atdtudes is subject to prosecudon andsuppression. By custom, only egregious examples are subject to


scrudny. In this country, I can buy scores of racist tracts. And yet,granted the unhappy condidon of our society, perhaps weshouldn't have it any other way: the possibilides of abuse are tooclear and present.

As the polidcal philosopher Josh Cohen writes: 'In a society inwhich there are reladvely poor and powerless groups, members ofthose groups are especially likely to do badly when the reguladonof expression proceeds on the basis of vague standards whoseimplementadon depends on the discredon of powerful actors.'

A tort approach toward hate speech, which would allow therecovery of damages in the event of hurtful expression, would bedifficult to rein in. In liability law, recklessness is customarily ad-judged in terms of the foreseeability of harm. But the foreseeabilityof harm is, in part, a technological quesdon: risk-assessmenttechniques are vasdy more sophisdcated today than they were afew decades ago. Were we to develop similar skill in predicdnghuman behavior, the expressive realm of the permissible wouldthen be increasingly constricted—at least, so long as we treatedhuman acdon like any other mechanical consequence. If, as thesaying goes, talk is cheap, then by the Learned Hand rule, liabilitywould almost always attach to the talker; afrer all, how much doesit cost the talker to be silent? Tort approaches toward hurtfulexpression propose to allocate costs of communicadons in a waythat assigns the risk to the producer instead of the consumer. Howyou feel about this, depends on your feelings about freedom ofexpression in se as a moral value or a social good; in general, I wouldfind the degree of paternalism involved in restricdng speech onthe basis of a few unreasonable, even if foreseeable reacdons, un-attracdve when these do not consdtute a significant threat to thesocial order. Moreover, while these approaches would compel ac-tors to internalize costs of 'risky' speech, we do not allow it to reapthe equally fortuitous benefits. The net result of this asymmetrywould be to discourage speech.

In addidon to this sort of tort approach toward hate speech.


there's the conception of 'group libel' which some feministtheorists have invoked, but which retains unfortunate associationswith those seditious hbel laws promulgated much earlier in ourrepublic. But there's also the possible model of 'hostile environ-ment.' Thus (to choose a fairly recent example) a student walksinto a classroom at the University of Michigan and reads thismotto, chalked anonymously on the blackboard: 'A mind is a ter-rible thing to waste . . . especially on a nigger.' Arguably, remarksof this sort create what civil rights law has called, with respect tosexual harassment, a 'hostile environment'—an environment in-imical to the aims and objectives of university education. Similarly,a professor who seems to promulgate racist or anti-Semitic doc-trines in the classroom might appear to contravene the educationalmission of the university in important ways.

So I want to take the issue of offense seriously, although it isonly one of many considerations that must weigh in the balance.It brings to mind Justice William O. Douglas's 1973 remark that:'One of the most offensive experiences in my life was a visit to anation where bookstalls were filled only with books on mathemat-ics and books on religion.'

There is, however, another plane of analysis, which recognizes notsimply formal equity and formal freedom, but also imbalances andinequities of access. As the old slogan goes, freedom of the pressbelongs to those who own the press. So there are issues aboutfreedom of expression that subtend issues of democracy. Some ofthese surfaced in the debates over the National Endowment forthe Arts (NEA) in the years of Republican control of the WhiteHouse. The legal scholar Geoffrey Stone has argued to the effectthat the disbursement of government funding to the arts, thoughnot constitutionally required, does involve constitutional ques-tions (to do with 'government neutrality in the field of ideas') onceimplemented. I admit I find Stone's argument more ingenious

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than persuasive. At the end of the day, there's a distinction worthpreserving between not supporting and suppressing. And, as manyhave pointed out, there's something bathetic about the avoweddependence of oppositional art upon subsidy from the executivebranch. 'My dance exposes your greed, your hypocrisy, yourbigotry, your philistinism, your crass vulgarity,' says one of JulesEeiffer's cartoon monologists. 'Eund me!'

Was the N E A 'poHdcized?' Of course. But the charge of 'poli-dcs' isn't one we can fling with good conscience, save in the spirit oftu quoque. If art is polidcal, how can judgment not be? T h e fig leafof formalism fools no one, and the ddy disdncdon between the'ardsdc' and 'polidcal' ought to be left for the genteel likes of formerN E A chairman John Erohnmayer. Eor art that robustly challengesthe disdncdon is poorly served by stealthy recourse to it.

I have already noted the useful disdncdon between not support-ing and suppressing. Of course, there is a sense in which thedisdncdon counts for little: if I can't make my film, what does itmatter whether I was prevented by poverty or prohibidon? But Iwould say that in that impact-oriented sense, we have no freespeech anyway, since access to a mass audience is hardly democrat-ically distributed. In that sense, we should worry more about N B Cthan NEA. More important than our unendowed Nadonal En-dowment would be, for example, the Pubhc Broadcasdng Systemor Voice of America.

So beyond formal rights and procedural guarantees are thesematters of power and access. 'There is no freedom for the weak,'George Meredith observes: and yet it should be b o m in mind thatformal guarantees and protecdons are more likely to work in favorof the reladvely less empowered, since the less powerful you are,the more dependent upon formal protecdons. 'Persecudon for theexpression of opinions seems to me perfecdy logical,' Oliver Wen-dell Holmes opined in 1919. 'If you have no doubt of your premisesor your power and want a certain result with all your heart younaturally sweep away all opposidon. T o allow opposidon by speechseems to indicate that you think the speech impotent . . . .'

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VI

And of course, none of us does; no effective defense of relativelyunfettered colloquy can presume the inertness of speech. Nor canany effective defense require a rigid distinction between communi-cation and conduct. And this is part of what gives credence to amore thoroughgoing skepticism about rule-based accounts ofFirst Amendment law that has been offered by my friend andcolleague Stanley Fish in a now notorious essay entitled 'There'sNo Such Thing as Free Speech, and It's a Good Thing, Too.' First,though, a caveat. Despite the arresting title (and some arrestingturns of argument). Fish turns out to be no foe of free speech asit is conventionally understood. Indeed, he essentially endorsesthe balancing approach to First Amendment cases proposed byJudge Learned Hand (in Dennis v. United States), and in the schemeof history. Judge Learned Hand has come to be regarded as oneof the best friends the First Amendment ever had. 'My rule ofthumb is, "don't regulate unless you have to," ' Fish writes, though,as he recognizes, that simply defers the question about when youhave to.

Fish's central claim is that there are no final principles that willadjudicate First Amendment disputes, and that there is no avoidinga somewhat ad hoc balancing of interests. This is so because,despite our disclaimers, free speech is always justified in referenceto goals (the only alternative would be to refuse to justify it at all)and so we will end up deciding hard cases by an assessment as tohow well the contested speech subserves those goals. Moreover,this is so even for those theorists like Ronald Dworkin, who justifyfreedom of expression, not by its possible longterm benefits (whichDworkin considers to be too much a matter of conjecture to sup-port our firm commitment to expressive freedom), but by a viewof these rights (along with, say, the subsuming ideal of moralautonomy) as a constitutive element of a hberal society. Even'deontological' theories like Dworkin's—in which conformity torules or rights, not good consequences, is what justifies action—


are consequendalist, too. Fish argues: so long as they make excep-dons to their vaunted rights for familiar consequendalist reasons(as in the event of clear and present danger), they are as fallen asthe rest of us.

You will nodce that Fish's argument essendally has the sameform as the old and undoubtedly sexist joke (a joke recendyadapted into Indecent Proposal, a film starring Demi Moore andRobert Redford) about the man who asks a woman if she wouldsleep with him for a million dollars. She allows that she probablywould. In that case, the man presses, would you sleep with me forten dollars? 'What kind of a woman do you think I am?' she asks,indignandy. 'We've already established what kind of a woman youare,' the retort comes. 'Now we're just negodadng over the price.'

So, yes, if you up the stakes enough, it turns out that we are allwhores—even the most chaste among us, even Demi Moore. Andif you up the stakes enough, we are all consequendalists, too—eventhe most deontological among us, even Ronald Dworkin. OnceFish has exposed us, he won't allow us to keep our pretensions tochasdty, or deontology, for pretensions are all they are. I am lessdemanding than he. I would allow that rights needn't be infinitelystringent, for they may confiict with other rights, and so in pracdcethe whole affair will, as Fish does not miss, have an air of the adhoc about it. But that doesn't mean that our principles and rulesdo not work, that they are merely subterfuge. Maybe there's auseful sense in which we are not all whores. Besides, isn't thatall-or-nothing rhetoric at odds with the whatever-works eclecd-cism of pragmadsm at its best? The fact diat First Amendmentjurisprudence represents a hodgepodge of approaches, some ofthem at odds with each other, isn't necessarily a weakness.

Another problem with the abandonment of principled adjudica-don urged by the skepdcal cridque is what it leaves in its wake:which is the case-by-case balancing of interests. My point isn't that'normal' First Amendment jurisprudence can or should com-pletely eschew balancing; but there's a difference between resort-ing to it in extremis and employing it as the first and only approach.


Now, in the case of racist invecdve, a balancing approach may beespecially tempdng, because the class of expression to be restrictedseems so confined, while the harms with which it is associated canbe vividly evoked. As the University of Cahfomia at Berkeley lawprofessor Robert C. Post argues, however, this invitadon to bal-ance is best dechned, because of what he terms 'the fallacy ofimmaculate isoladon.'

The effect on public discourse is acceptable only if it is de minimis,and it is arguably de minimis only when a specific claim is evaluated inisolation from other, similar claims. But no claim is in practice im-maculately isolated in this manner There is no shortage of powerfulgroups contending that uncivil speech within public discourse oughtto be 'minimally' regulated for highly pressing symbolic reasons. . . .In a large heterogeneous country populated by asserdve and conflict-ing groups, the logic of circumscribing public discourse to reducepolidcal estrangement is virtually unstoppable.

And while we recognize that speech is not impotent, we shouldrecognize that listeners are not impotent, either; they are nottempest-tossed rag dolls blown about by every evil wind. And anyunconscious assumpdon of the passivity of recepdon neglects thefact that resistance begins with reacdon. That the attempt to filterthe environment of offense reeks itself of condescension and pater-nahsm. As the legal scholar David Richard has written, 'It is acontempt of human radonality for any other putadve sovereign,democradc or otherwise, to decide to what communicadons ma-ture people can be exposed.'

VII

But there are older ideas of civil society in conflict within debatesover free speech in the academic community. To oversimplify,advocates of reguladng hate speech see a society composed ofgroups; moral primacy is conferred upon those coUecdvides whoseequal treatment and protecdon ought to be guaranteed under law.The classic civil libertarian view, by contrast, sees a society com-posed of individuals, who possess rights only as public cidzens,whatever other coUecdve allegiances they may entertain privately.


Individualism has its weaknesses, to be sure. Part of what wevalue most about ourselves as individuals ofren turns out to be acollective attribute such as our religious or racial identity. Andwhen we are discriminated against, it is as a member of a group.Nor does the implicit model of voluntarism work well for ethnic,sexual, racial, or religious identities, identities about which we mayhave littie say. There is something unsatisfactory in a legal ap-proach that treats being a black woman as analogous to being astamp collector.

And yet the very importance of these social identities under-scores one of the most potent arguments for an individualist ap-proach toward the First Amendment. In a series of novella-lengtharticles published over the past several years, Robert C. Post hasexamined just such issues as they relate to an emerging conceptionof public discourse. 'One is not born a woman,' Simone deBeauvoir famously avowed, and her point can be extended: themeaning of all our social identities is mutable and constantiy evolv-ing, the product of articulation, contestation, and negotiation.

Indeed, these are circumstances to which critical race theoristsought to be more attuned than most. Thus Lawrence approvinglyquotes MacKinnon's observation that 'to the extent that pornog-raphy succeeds in constructing social reality, it becomes invisibleas harm.' He concludes: 'This truth about gender discriminationis equally true of racism.' And yet to speak of the social constructionof reality is already to give up the very idea of 'getting it right.'When Lawrence refers to 'the continuing real-life struggle throughwhich we define the community in which we live,' he identifies amajor function of unfettered debate, but does so, incongruously,by way of proposing to shrink its domain. To remove the veryformation of our identities from the messy realm of contestationand debate is an elemental, not incidental, truncation of the idealof public discourse. And so we must return to Catharine MacKin-non's correct insistence on 'the rather obvious reality that groupsare made up of individuals.'

Now, as Post (citing the work of Charles Taylor) has observed.


the neutrality of individuahsm is only reladve. The autonomousmoral agent of hberal society requires the entrenchment of a poht-ical culture conducive to that idendty. Even though the strongtendency in legal culture is to overcriminalize and overregulate,the preservadon of a broadly democradc polity entails that therewill be, and must be, limits, and establishing them will involvepolidcal consideradons. Thus Post writes, in a penetradng analysisof the Supreme Court decision in Falwell v. Hustler. 'The uldmatefact of ideological reguladon . . . cannot be blinked. In the end,therefore, there can be no final account of the boundaries of thedomain of public discourse.'

So perhaps the most powerful arguments of all for the reguladonof hate speech come fi-om those who maintain that such reguladonwill really enhance the diversity and range of public discourse. Attheir boldest, these arguments pit free speech and hate speech asantagonists, such that public discourse is robbed and weakened bythe silencing and exclusionary effects of racist speech. Restricdnghate speech actually increases the circuladon of speech, the argu-ment runs, by defending the speech rights of vicdm-groups whomsuch abuse would otherwise silence. And so the purging of racistspeech from the body polidc is proposed as a curadve techniqueakin to the sucdon cups and leeches used in eighteenth-centurymedicine to strengthen the padent by draining off excessive toxins.

Needless to say, the quesdon of the safety and effecdvity of thetreatment is an open one. And, as Post points out, the 'quesdon ofwhether public discourse is irretrievably damaged by racist speechmust itself uldmately be addressed through the medium of publicdiscourse.'

Because those participating in public discourse will not themselveshave been silenced (almost by definition), a heavy, fiiistrating burdenis de facto placed on those who would truncate public discourse inorder to save it. They must represent themselves as 'speaking for' thosewho have been deprived of their voice. But the negative space of thatsilence reigns inscrutable, neither confirming nor denying this claim.And the more eloquent the appeal, the less compelling the claim, for


the more accessible public discourse will then appear to be to exacdythe perspectives racist speech is said to repress.

Ereedom of expression may never be free from ideological de-limitation, and yet the value it enshrines is too important a valueto sacrifice to the vainglory of a professor Tony Martin or LeonardJeffries or William Shockley. So it's important to remember thatobscenity and hate speech alike only become free-speech issueswhen their foes tum from censure to censorship. When pluralismdecided to let a thousand flowers bloom, we always knew that someof them would be weeds.

truth or consequences: putting limits on limitstruth or consequences 323 contested cases; but i also...

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