Images of the Outsider in American Law and Culture: Can Free Expression Remedy Deeply Inscribed Social Ills?
Free speech is said to be a prime instrument of social reform. Yet that faith--indeed conventional First Amendment doctrine generally--is beginning to show signs of strain. Outsider groups and women argue that free speech law inadequately protects them from certain types of harm. 1 Further, on a theoretical level, some scholars are questioning whether free expression can perform the lofty functions of community building and consensus formation that society assigns to it. 2
We believe that in both situations the source of the difficulty is the same: failure to take account of the ways language and expression work. The results of this failure are more glaring in some areas than others. Much as Newtonian physics enabled us to explain many phenomena of daily life but required modification to address others on a larger scale, First Amendment theory will need revision to deal with issues at its furthest reaches. And just as the new physics ushered in notions of perspective and positionality, First Amendment thinking will need to incorporate these as well.
Conventional First Amendment doctrine is most helpful in connection with small, clearly bounded disputes. Free speech and debate can help resolve controversies such as whether a school disciplinary or local zoning policy is adequate, whether a new sales tax is likely to increase or decrease net revenues, or whether one candidate for political office is better than another. Speech is less able, however, to deal with systemic social ills, such as racism or sexism, that are widespread and deeply woven into the fabric of society. Free speech, in short, is least helpful where we need it most.
Several museums recently have featured displays of racial memorabilia. 3 These collections depict a shocking parade of Sambos, mammies, coons, uncles-bestial, happy-go-lucky, watermelon-eating African-Amer-