Two Essays from Critical Race Theory

      A couple years ago, long before Critical Race Theory (CRT) was a hot button topic, I picked up a CRT book at a library book sale. The book is called Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. The basic premise of the book is that there should be certain limits on speech in order to protect racial minorities, particularly blacks and other historically marginalized groups. The book is actually a collection of essays from several different critical race theorists. How each of these authors frames their argument is different, and the exact theory of how speech should be curtailed differs between the authors. 

     I am currently reading my way through this book. I had put it off for a long time, just peeking at it every now and then. However, it seems like with all the hullabaloo around CRT nowadays, I owed it to myself to actually read it. (Generally speaking, I prefer to read the primary sources of controversial theories rather than trusting in pundits.) Since it is a collection of independent essays, there's no particular need to read it in order. So I have been jumping around. So far, I've read two essays which I have found to be particularly thoughtful, and I want to discuss those here. 

First Essay: “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” by Charles R. Lawrence III

     I did not know this, but in the old eeny, meeny, miny, moe nursery rhyme, it was not a tiger that you caught by the toe. It was a . . . Well, you can figure that out. The author, Charles Lawrence, uses this nursery rhyme, which he grew up with in its original version, as an example of how casually racist speech is used and interwoven into everyday life. It's presented as though it has no impact; as though it's just a game. Of course, it does have impact, as the author attests to. And that impact should be recognized by law. In fact, Lawrence argues it already is recognized in the law and this recognition needs to be expanded.

     Of the two essays I will discuss here, this essay is by far the better and more convincing. The arguments are based almost entirely on case law and constitutional interpretation. In fact, Lawrence makes the case that he is extrapolating from the logical conclusions of current case law. As I see it, he makes two arguments which then combine to make his overall point.

     Argument 1: The line between speech and conduct is not conclusive, and the law does, at times, regulate speech when it acts as a mechanism for enforcing discrimination. 

     The example he gives here are the signs at cafes and other public accommodations which indicated "White" and "Colored" in the Jim Crow South. Title II of the Civil Rights Act of 1964 outlawed these signs. Yet, despite being banned, many establishments continued to keep these signs under the pretense that they didn't actually enforce them. "People can come through any door they want to," is one line that the author himself heard when he confronted the owner of a diner that kept these signs after the passage of the Civil Rights Act.

     Lawrence demonstrates how at that time, the Supreme Court rightly interpreted the messaging of discrimination as part of the enforcement of discrimination. Under the rationale created in Brown v. Board of Education, "segregated schools were unconstitutional primarily because of the message segregation conveys—the message that black children are an untouchable caste, unfit to be educated with white children." (original emphasis) As Lawrence notes, the messaging of segregation was an essential part of the mechanism of discrimination, and for this reason the messaging—what some would call a matter of free speech or freedom of association—needed to be outlawed. CRT, therefore, is not teaching anything new to American law. In fact, the principle of curtailing the language of discrimination is already present in the law. If one needs to put a rationale to this argument, it is that such speech is "conduct" not "speech" in the legal sense, since its purpose is not to present an opinion but to enforce discrimination. 

     Argument 2: Free speech is not a privileged right in the constitution. 

     The author next takes issue with those who defend racist speech in order to protect free speech. An interlocutor might say if we limit speech, we will be undermining our constitutional rights. The problem here, Lawrence asserts, is that such an interpretation of the constitution assumes that the first amendment is somehow the default while the fourteenth amendment is some kind of special amendment only used when necessary. He writes:

Inevitably, . . . those of us who are nonwhite bear the burden of justification, of justifying our concern for protection under our "special" amendment. It is not enough that we have demonstrated tangible and continuing injury committed against victims of racist speech. There can be no public remedy for our special fourteenth amendment injury until we have satisfied our interlocutors that there is no possible risk of encroachment on their first amendment—the "regular" amendment.

     According to Lawrence, free speech is not a default right with the fourteenth amendment only coming into consideration when free speech (including racist speech) is protected. Free speech and equal protection under the law are competing rights, and the law needs to acknowledge this. The Civil Rights Act of 1964 did acknowledge this when it regulated the messaging used in public accommodations. 

     When these two arguments come together, Lawrence believes our constitutional law should be able to weigh our speech rights against our equal protection rights. Sometimes speech will win. Sometimes equal protection will win. The way we can decide is to look and see whether the speech is serving as an enforcement mechanism for discrimination or not.

     Note: Conservative Supreme Court Justice Clarence Thomas adopted a similar view to Lawrence's in at least one court case. In Virginia v. Black, Justice Thomas took the position that the state of Virginia was right to completely ban cross-burning under the grounds that cross-burning was conduct which objectively serves the purpose of intimidating blacks and other minorities. The rest of the Court believed that cross-burning could, at times, serve a legitimate free speech purpose. Justice Thomas dissented. He maintained in his dissent, “I believe that the majority errs in imputing an expressive component to the activity in question,” because “just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.” He held that the fear experienced by black citizens at the site of a burning cross was an objectively grounded reaction to conduct and could not be dismissed as mere feelings at someone else's free speech. So it is interesting to note that here a critical race theorist and a conservative Justice on the Supreme Court would agree.

     Lawrence, of course, says a lot more in his essay, but this is his general argument. The first and fourteenth amendments illustrate competing rights, and the first amendment is not always given preference. Having established that these are competing rights, we can look to see whether speech serves the purpose of enforcing discriminatory practices through its messaging, in which case the fourteenth amendment rights should win out. One way of conceptualizing this is to think of the speech as leaving the arena of expression and entering the arena of enforcement, at which time it goes from being free speech to regulated conduct. 

     I have to say, this is a pretty solid essay, firmly grounded in American law. Score1 for Critical Race Theory. A bonus point for Justice Thomas’ dissent.

Second Essay: “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” by Richard Delgado

     Richard Delgado is a name that might be familiar to anybody with a cursory knowledge of Critical Race Theory. He gets mentioned quite a bit as one of the founders of the movement, though up till now I had not read anything by him.

     As the name of the essay suggests, Delgado argues that the court system should allow tort lawsuits for racial insults. Much of this essay presents the contemporary case law showing how courts typically deal with racial slurs. The case law at the time, as Delgado points out, was a mixed bag. Some courts were more accepting of torts brought forward to redress the injury of racial insults, while others were less accepting. For the purposes of this recap, I am not going to present any of that case law here, since it's not essential to his arguments and I am sure it has changed in the nearly thirty years since the publication of the book. However, I would note that Delgado's approach is, like Lawrence's, firmly planted in the American legal system.

     One of the first issues that Delgado takes up is the issue of whether racial insults cause harm. Torts are based on harm, and without the harm there can be no tort. For a short essay, the three pages devoted to this topic are about as much as one could hope for to establish his claim. His exposition on this topic is not exhaustive, but reasonable. I found one particular observation very helpful. Delgado clarifies that when he speaks of injury to the victim of racial insults, the target of that injury is not the victim's feelings or psychological wellbeing, but their dignity. He writes:

Although the emotional damage caused is variable and depends on many factors, only one of which is the outrageousness of the insult, a racial insult is always a dignitary affront, a direct violation of the victim's right to be treated respectfully. Our moral and legal systems recognize the principle that individuals are entitled to treatment that does not denigrate their humanity through disrespect for their privacy or moral worth. This ideal has a high place in our traditions, finding expression in such principles as universal suffrage, the prohibition against cruel and unusual punishment, the protection of the fourth amendment against unreasonable searches, and the abolition of slavery. A racial insult is a serious transgression of this principle because it derogates by race, a characteristic central to one's self-image.

     I am jumping ahead in the essay, but the following point fits in here. Delgado believes that racial insults directed at minorities are fundamentally different from racial insults directed at white people due to the history of the insults. Delgado desires the creation of race-neutral law and believes that white people should be protected against racial epithets as well. However, our language is not symmetrical. Insults against black people were created to insult and degrade the dignity of black people. Insults against white people, however, tend to have a less sinister history. Racial epithets against white people (Delgado uses the example of "you dumb honkey") sometimes demean the victim's dignity through their race and sometimes do not. However, racial epithets against blacks are, due to their history, intrinsically demeaning. 

     Delgado expresses that it is these racial affronts to dignity that he is concerned about. Acts of hatred, insult, and disrespect directed between races, as long as they do not demean a person through their race, are permissible, as Delgado sees it. "[A]n insult such as ‘you incompetent fool,’ directed at a Black person by a white, even in a context which made it highly insulting, would not be actionable because it lacks a racial component."

     Allow me to skip over several pages of the legal theory presented in the essay to get to Delgado's discussion of the first amendment. He presents several arguments for why racial insults should not be considered free speech, and he frames his arguments around an essay entitled "Toward a General Theory of the First Amendment" by Thomas Irwin Emerson. Emerson gives four categories for free speech. Those categories are 1. self-fulfillment, 2. ascertainment of truth, 3. participation in decision making, and 4. balance between stability and change. Delgado argues that none of these free speech interests are present in racial insults, and therefore racial insults are not protected speech.

     Delgado differentiates between holding racist opinions and performing racist actions. He maintains that people have the right to advocate for racist positions but not necessarily to enact what they advocate for. Under the category of self-fulfillment, for example, he believes that if your idea of self-fulfillment means speaking up for white-supremacy, you should be allowed to do so (even though Delgado thinks this is not really self-fulfilling). However, you may not level racial insults in the process. He draws an analogy: "Although one may dress in Nazi uniforms and demonstrate before the city hall in Skokie, Illinois, one may not paint swastikas on one's neighbors' doors." (That sounds just like Justice Thomas’ analogy.)

     When considered from the standpoint of ascertaining the truth, Delgado again believes in the free expression of racist opinion, but not in the expression of racist insults. He likens racial insults to public obscenity. A person has a right to express their support for public obscenity, but they may not be publicly obscene. "Similarly, protecting members of racial minorities from injury through racial insults and society itself from the accumulated harms of racism is very different from prohibiting espousal of the view that race discrimination is proper." If one is convinced that there is truth in racism, they are free to express this. However, racial insults themselves are not expressions of truth values. "Racial insults invite no discourse, and no speech in response can cure the inflicted harm."

     Delgado also notes the suppressive effect of racial insults, noting that they do not invite participation in decision making; rather they inform the victims of such insult that they are not welcome in decision making, since the history of such words is precisely the language of slavery and second-class citizenry. Racial insults, therefore, tend to suppress speech rather than encourage it. 

     I've skipped over substantial portions of this essay, but I highlighted my main areas of interest. There are disagreements I have with this essay which I glossed over, but I will mention one issue here where I remain skeptical of Delgado’s position. I left out a substantial portion regarding Delgado's interwoven theory that the vocabulary of racial insults used against blacks is intrinsically insulting. It is unclear, for example, exactly what he thinks about "reclaiming" racial epithets. He implies that racial epithets—he quotes specific slurs in his text I will not write here—remain intrinsically insulting even if they are reclaimed, "even when used between friends." I am not convinced on this point, but I also do not feel that the topic is fleshed out enough in this essay to know exactly what his position is.

     In all, I thought this was a very thoughtful essay. It was not as convincing theoretically as Lawrence's essay, and I had issues with Delgado’s theory of language. But when read in conjunction, these two essays square together nicely. I’m going to give CRT another half point for this essay.

Concluding Thoughts

     Both of the essays I discussed here are texts in the school of Critical Race Theory. On the surface, these essays convey the scary message that critical race theorists want to limit your free speech. However, while they do take this unpopular position, their theory is fairly well thought out, well researched, and firmly grounded in American constitutional law. I did not find these particular texts to be anything to be feared, shunned, or banned. In fact, I would say these texts are challenging, thought-provoking, and worthy of consideration. 10 / 10 will read more essays from the book and let you know if I find anything outrageous.