The Racist Speech Problem

Introduction

The curse of racism continues to haunt the Nation. Everywhere we face its devastation, the bitter legacy of, in William Lloyd Garrison's prophetic words, our "covenant with death and ... agreement with Hell." This is the living consequence of the history that has produced us. We cannot overcome that history without changing ourselves and therefore also our legal order. Since Brown v. Board of Education vast stretches of our law have passed through the flame of this challenge. The question is always what to preserve, what to alter. Now it is the turn of the first amendment. Largely inspired by Richard Delgado's article, Words That Wound, the past few years have witnessed an extraordinary spate of articles analyzing the constitutionality of restrictions on racist speech. This analysis is not merely academic. Motivated by an alarming increase in racist incidents, universities throughout the Nation have turned toward the task of restraining racist expression. The justification for these restraints, and their relationship to first amendment values, has become a matter of intense controversy (Merton, P 141).

Explain Robert C. Post Key Arguments in "The Racist Speech Problem"

The nation is in the midst of a fervent national debate over how universities should respond to "hate speech" on campuses. I "Hate speech" is the generic term that has come to embrace the use of speech attacks based on race, ethnicity, religion, and sexual orientation or preference.2 This article analyzes this debate in two stages. The analysis begins by examining the existing state of first amendment jurisprudence regarding hate speech, exploring the doctrines that currently combine to protect such speech, the theoretical principles underlying those doctrines, and the narrow range of recognized exceptions to constitutional protection for speech that might, in some circumstances, permit hate speech to be punished. The second stage of the analysis examines the relationship of these first amendment doctrines to notions of academic freedom at both state and private universities. Do the free speech rules prevailing in the general marketplace apply with equal force on university campuses? Or are there first amendment principles that either require or permit a different response to hate speech on campus than current first amendment doctrines allow in other contexts? (Merton, P 141).

The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. The affirmative first amendment thinker is constantly looking for ways to stretch existing doctrines to embrace wider and wider protection for speech. Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value.

Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free ...