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Excerpted From: Erika George, Words as Sticks and Stones: Naming the Harm of Racist Speech, 11 Harvard BlackLetter Law Journal 221 (Spring, 1994) (Book Review) (34 Footnotes) (Full Document)
Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. By Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, Kimberle Williams Crenshaw. Boulder, Colo.: Westview Press, 1993. Pp. 160. $15.95.
Sticks and stones may break my bones but words can [never] hurt me?
In the pre-dawn hours of a summer morning in 1990, an African American family woke to find a crudely constructed cross burning in their front lawn. Robert A. Viktora, a juvenile at the time of the incident, had assembled the cross and set it ablaze inside the yard of the African American family who had recently moved into the neighborhood. Viktora was prosecuted under a local hate crime ordinance prohibiting bias motivated disorderly conduct, and he subsequently challenged the constitutionality of the statute in the Supreme Court of Minnesota.
The Minnesota Supreme Court rejected Viktora's argument that the local ordinance violated the First Amendment. The court held that the ordinance was constitutional because it could be narrowly interpreted to prohibit only expressive conduct (such as “fighting words” or “lawless action”), which falls outside of First Amendment protection.
A very divided United States Supreme Court reversed in R.A.V. v. City of St. Paul. Writing for the majority, Justice Scalia maintained that “the ordinance [went] beyond mere content discrimination, to actual viewpoint discrimination,” by “picking out an opinion, a disfavored message, and making that [disfavor] clear through the State.” In effect, the majority's reasoning gave cross-burners protection as members of an unpopular political minority.
In concurrence, Justice White argued that the ordinance was over-broad in its prohibition of expressions that cause “anger, alarm or resentment.” Justice White further contended that the statute was unclear as to the nature of the injuries inflicted by the speech and the conduct that it sought to regulate. “The mere fact that expressive activity causes hurt feelings . . . or resentment,” he reasoned, “does not render the expression unprotected.” According to Justice White, the Minnesota court “was far from clear in identifying the injuries inflicted by the expression that St. Paul sought to regulate.”
Notwithstanding the R.A.V. decision, or perhaps because of it, policy makers, administrators, and others interested in dealing with racism, hate crimes, or hate speech do not know how to deal with these problems in a constitutionally permissible manner. Words that Wound: Critical Race Theory, Assaultive Speech and the First Amendment attempts to respond to this concern. The book provides an alternative approach to First Amendment jurisprudence, an approach that grounds doctrinal inquiries in the knowledge of experience, especially the knowledge of harms that minorities experience as a result of racism in American society.
Words that Wound is written by Mari Matsuda, Charles Lawrence, Richard Delgado, and Kimberlé Crenshaw, minority law professors at predominantly white law schools who share the belief that racially motivated hate speech/crime should--to some degree--be regulated. The authors maintain that an “absolutist” approach to First Amendment jurisprudence does not adequately reflect the reality that certain words and actions wound minorities and contribute to their oppression. They not only state the case in favor of regulating racist speech, but also provide a clear and concise statement of the intellectual foundations of critical race theory.
This review outlines the tenets of critical race theory as formulated by the authors, summarizes the arguments each author presents, and discusses some of the issues raised by their assertions. Additionally, this review briefly explores the extent to which there is a principled distinction between whites and blacks using racial slurs. In the context of this discussion, I will ask whether it makes sense to permit members of minority groups to use hurtful racial references (such as nigger) among themselves. Finally, this review considers the possible political costs of a new theoretical enterprise, such as that being proposed by the authors, which could be perceived as putting the realization of civil rights in conflict with the preservation of civil liberties. The review concludes by suggesting that Words that Wound should not be dismissed as politically correct propaganda, and argues that the authors of the book provide legitimate and well-reasoned rationales for expanding the reach of First Amendment jurisprudence.
[. . .]
I. CRITICAL RACE THEORY EXPLAINED
The authors operate within the framework of critical race theory (CRT), which is an evolving intellectual movement that constructs legal theories through reflection and action. Specifically, CRT examines how the traditional status quo legal and political interests serve to facilitate or maintain structures of racial subordination. As an intellectual movement, CRT aspires to eliminate all forms of oppression, and it is grounded in the experiences of real people. The authors explain CRT early in the book and each essay relies in some fashion upon CRT as a foundation for building new doctrinal discourses.
CRT borrows from a range of disciplines including Marxism, critical legal studies, the law and society movement, feminist jurisprudence, and post-modernism. Accordingly, CRT sometimes incorporates stories, narratives, personal and revisionist histories to counter and challege abstract legal arguments. By incorporating narrative, CRT hopes to inform legal analysis with experiences instead of abstractions.
A central assertion of the critical race school is that racism is not an isolated exception but rather a force endemic to society: it factors prominently in all current manifestations of group privilege and disadvantage. Consequently, critical race theorists argue that color blindness and neutrality claims must be challenged by engaging in a contextual, historical analysis of law. The theory calls for an end to abstraction (a form of deliberate “unknowing”), and advocates a contextual approach to legal analysis, one that recognizes the real injury of racism.
[. . .]
Words that Wound should not be dismissed as the “politically correct” scholarship of an insular minority. The book is significant in its presentation of critical race theory because the theorical framework does provide legal actors some guidance for redressing racially motivated crimes consistent with First Amendment principles. By naming the injury of racially motivated hate speech, by introducing the importance of giving context to these crimes, and by including the experiences of people of color to influence how the law is constructed, Matsuda, Lawrence, Delgado, and Crenshaw have not only contributed to the discourse on First Amendment jurisprudence, they have provided another framework within which to conduct constitutional jurisprudence as a general matter.
Critical race theory as the authors have outlined it, may serve as a blueprint for practice. For example, the most intellectually honest opinion in R.A.V. acknowledged that “conduct that creates special risks or causes special harms may be prohibited by special rules.” Because Justice Stevens was able to contextualize a cross-burning as a “crude form of physical intimidation,” and because he was willing to recognize that the injury experienced by people of color as a result of racist speech is different from other forms of verbal abuse, he was able to reach a visionary conclusion that selective subject matter regulation on proscribable speech can be constitutional.
As a whole, the book also provides an occasion to reflect on developments within critical race theory. Historically, Delgado's work came first and is perhaps the most traditional in form, relying on legal arguments to outline his theory. Matsuda is clearly writing to a more general audience. Lawrence takes an original angle on a classic case in order to change the frame for analysis. Crenshaw's work seems to speak to both a scholarly and general audience, and it is less formalistic than the other pieces. The stylistic and methodological differences within this collection of essays reflect the various theoretical strategies critical scholars have used to advance the civil rights of people of color.
In the end, the book does deliver on its truly ambitious promise: to reconstruct First Amendment jurisprudence so that it is grounded in the experiences of people of color, and as such acknowledges the real and complex harm of racist speech. Upon reading this book, one cannot help but revisit with new vision that old childhood rhyme, “sticks and stones can break my bones, but words will never hurt me,” and question whether it is true.
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