The course of history following the Civil Rights Act
of 1964 reminds us of the evolving, rather than
static, nature of societal racism. ¹ One group of
problems of increasing public concern focuses on the
proper legal response to what may be though of as
racist speech. Putatively racist speech has become
the subject of potential litigation in a variety of
contexts, including the workplace, ² ordinary
commercial transactions, ³ public policy debate, ⁴ the
public schools, ⁵ and the college campus. ⁶ However it
is defined, racist speech takes a number of forms. It
imposes or threatens a number of harms. As a result,
a variety of legal strategies have been devised to
address the problems of racist speech. The
consistency of such solutions with the Constitution's
free speech clause is controversial, however, and this
issue is central to the discussion that follow. ⁷

Initially, several legal strategies appear to
have promise in deterring, punishing, or obtaining
compensation for racist speech. Depending partly upon
context, one might look to the torts of group
defamations ⁸ or intentional infliction of emotional
distress, ⁹ or to civil ¹⁰ or criminal ¹¹
anti-discrimination statutes, while making appropriate
use of the "fighting words" doctrine developed by the
Supreme Court in Chaplinsky v. New Hampshire. ¹² This
chapter surveys these legal strategies and discusses
the constitutional free speech and other legal
constraints on the use of these strategies, as well as
the likely practical costs and disadvantages

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