Should Racist Speech Enjoy Protection Under The First Amendment Essay, Research Paper
Prejudice and racial stereotyping are two of this country’s greatest problems today. Many people in our society have
tried to find ways to eliminate or at least limit these types of behavior, but have met with very limited, if any, success.
Because of the complex nature of racism and racist acts, coupled with the fact the first amendment prohibits the
government from limiting the publics’ right to free expression and speech, the Federal government has been
ineffective in eliminating racist actions that pervade our society. State governments and institutions have attempted to
set up their own laws condemning such actions, but have been wholly unsuccessful.
Some of those waging a war on racism have established anti-discrimination policies, and have had these policies
challenged as a result. Central Michigan University, for example, had instituted a discriminatory harassment policy,
only to have it shot down by the Supreme Court in 1995 on grounds that the policy “necessarily requires [the]
university to assess racial or ethnic content of speech.” Since Central Michigan University is a State school, the First
Amendment prohibits it from enacting regulations that would limit an individual’s right to free speech unless the
regulations, according to a 1986 ruling by the Supreme Court, are “narrowly and precisely designed.”
As you can imagine, precisely tailoring any statute in order to prohibit racist speech is nearly impossible – and as
many other speakers have already said, banning the current racial slurs will only create new ones. Additionally, an
outright ban on racist speech and ideas could likely lead to a higher level of violence in our society.
A number of other supreme court rulings have come out in favor of protecting all speech, including racist speech,
such as:
A 1941 ruling on the case of Sullens v State, stating that the “Freedom of speech includes freedom to
speak unwisdom or even heresy.”
A 1949 ruling on the case of Terminillo v Chicago, stating that “Attacks on racial and religious groups
are protected by right of free speech in absence of showing of serious substantive evil that rises far
above public inconvenience, annoyance, or unrest?”
A 1952 ruling on the case of Joseph Burstyn, Inc. v Wilson, stating that: “[The] First Amendment
prohibits [the] state from banning communication of ideas deemed by some to be blasphemous or
sacrilegious.”
A 1965 ruling on the case of Cox v Louisiana, stating that “Freedom of speech is of paramount
importance and may not be denied merely because it may create dispute.”
Thus with these rulings, and with the only notable exception being in the case of the utterance of “fighting words,”
which are defined as “words which by their very utterance inflict injury or tend to incite immediate breach of peace,”
racist speech is currently protected under the First Amendment.
Some would argue, however, that any racial slur or racist speech has no place in today’s society, and that the general
public does not want to hear and should not be subjected to hearing such outright bigotry. But does the right to speak
one’s mind outweigh the listener’s rights? Apparently, yes, it does. According to the supreme court in the case of the
National Labor Relations Board v Montgomery Ward & Co. (1946), the “First Amendment is concerned with
freedom of thought and expression of [the] speaker or writer, not with conditions under which [the] auditor receives
[the] message? [the] First Amendment does not require that [an] audience shall have volunteered to listen.” This
ruling essentially invalidates the argument, and forces the listener into a position where he must decide what to listen
to and what to ignore, which is what we all do anyway.
Allowing racist speech is an important thing, though. Without it we would have no ‘litmus test’ available to test the
racial tension in our country, and would therefore have no way to combat it. By allowing free speech to continue and
by researching other methods of ending racism, we can get at the root of the problem and stop racism before it
starts. The key is not to limit or control action, but rather to influence reason and thought.
There are a number of methods that the government could employ to attempt to eliminate racism from our country.
Campaigns promoting more multi-cultural events and celebrating the differences of everyone in our country may be
effective in changing people’s perspective of other races, as the more contact you have with people outside your
‘circle’ the more comfortable you generally become. A “Task Force” could also be created to research the problem
of racism, to determine when and how it starts in people, and to find ways to combat it.
The most effective immediate solution, I believe, would be to encourage every business in the country to adopt
zero-tolerance policies regarding racism, and perhaps even have the general policies outlined by the Federal
Government. By passing a law which would establish general guidelines for racism, and by making acceptance and
employment of these guidelines in the workplace criteria for qualifying for certain business tax breaks, the
government would second-handedly affect the use of racist slurs and expression of views.
Now you may ask: “But doesn’t that violate the First Amendment since the government would essentially be putting
limitations on speech?” No, not exactly. Much like the Congressional Act passed in 1973 which essentially made the
maximum speed limit in the country 55MPH, the act would be voluntary. In the case of the 1973 Act, Congress did
not outright limit setting speed limits above 55MPH, but instead greatly reduced the amount of Federal Highway
Funds that a state received if it did not set its maximum limit at 55. Thus, the voluntary acceptance and employment
of these regulations by private businesses around the country would help to reduce or eliminate racist behavior in the
workplace, and would also help by carrying over into the home environment.
“But doesn’t private infringement on freedom of speech still violate the first amendment?” No, it doesn’t. According
to a 1996 ruling by the 9th Circuit California District Court in the case of George v Pacific CSC Work Furlough, the
“First Amendment protects individuals only against governmental, not private, infringements upon free speech rights.”
Since the government is not outlawing racist speech, but rather influencing private individuals to not accept such
behavior, the overall goal can be achieved without losing our rights under the first amendment.
Of course, no solution is perfect. Enforcing such a program would be difficult and arbitrary, and we would have to
rely on the private individual’s interpretation of the guidelines in each situation. Also, there will always be stragglers
from any kind of lesson, and in this case, the force pulling them away is basic human nature. It’s a well-known fact
that people find it easier to find fault with, or dislike, others who are different from them, at least initially. The major
hurdle in changing one’s perspective of another is to get past this initial block.
But in many ways, this is the best solution. Since individual interpretation of racism and racist speech are what
causes the problem in defining strict laws against them, individual interpretation of general guidelines applied to
specific situations may be the best method of judgement. Additionally, no governmental action would be taken if an
employer were to note that an employee was expressing racist views while at work – action would be entirely at the
discretion of the employer. By not imposing strict fines or jail time, the act could be used as a teaching tool to show
individuals what is deemed to be improper behavior, why it is improper, and could help them to form their own ideas
and defining lines between proper and improper, or racist, actions.
By using this solution, we can have the best of both worlds. By encouraging private individuals to fight racist remarks
and racial slurs in the workplace, we can somewhat satisfy those who clamor for an outright ban on racism. By not
allowing this type of speech to be criminalized, we stand by our First Amendment rights and continue to allow
freedom of expression. By offering each side this compromised solution we can not only help to phase racism out of
our society, but also protect our unalienable rights.
The Freedom to speak one’s mind is one of this country’s citizens’ most venerably held rights, and any discussion
which deals with government imposed limitations on this right should not be taken lightly. Completely banning speech
that is deemed by some to be racist only serves to bury the problem of racism itself, and is not an acceptable
solution. Thus, the First Amendment should continue to protect racial slurs as well as all other speech in order to
preserve and ensure the freedoms we have today. In conclusion, I’d like to quote one last ruling from the 8th circuit
Federal court from 1946: “[The] First Amendment is intended to assure privilege that in itself must be so actual and
certain that