The Future of Free Speech Law

By R. George Wright | Go to book overview

3
The Problem of Racist Speech

INTRODUCTION

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 defamations8 or intentional infliction of emotional distress,9 or to civil10 or criminal11 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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The Future of Free Speech Law
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • Note xiv
  • 1- Speech in the Constitutional Sense 1
  • Notes 23
  • 2- Hustler Magazine V. Falwell and The Hypertrophy of Free Speech Protection 33
  • Notes 50
  • 3- The Problem of Racist Speech 57
  • Introduction 57
  • Notes 83
  • 4- Free Speech and The Public School Student 95
  • Notes 123
  • 5- Fowler V. Board of Education: A Case Study in the Scope of Public School Teachers' Free Speech Rights 131
  • Introduction 131
  • Notes 148
  • 6 - Defining Obscenity: The Criterion of Value 153
  • Introduction 153
  • Notes 178
  • 7 - How to Decide Close Cases: An Illustration 185
  • Introduction 185
  • Conclusion 207
  • Notes 209
  • 8- The Pathological Complexity Of Free Speech Regulation 219
  • Notes 241
  • Conclusion: The Future of Freedom of Speech 255
  • Notes 263
  • Selected Bibliography 267
  • Index 269
  • About the Author 273
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