Angela Mae Kupenda
Excerpted from: Angela Mae Kupenda, Using Feathery Birds to Disguise Hateful Speech: Avatar, Hillary: the Movie, Citizens United, and How Birds of the Same Feather Flock Together, 49 Gonzaga Law Review 1- 21 (2013-2014) (105 Footnotes)
In America, we are consciously and subconsciously influenced by abundantly present messages in commercial speech, television, and film viewed for entertainment purposes. The influence can be penetrating, even devastating, especially because of racial messages about nonwhites. For example, a study by university researchers found that watching television lowers self-esteem in white female children and in black children, while elevating self-esteem in white boys. This effect seems logical given the predominant messages in many shows. In film and television, white boys find strong images and likenesses in white men who have economic, family, and political control. White girls suffer a loss of self-esteem as many television shows depict white women as weak, submissive, passive, and lacking power, or even in need of being saved by white men. Black girls and boys confront images of actors who resemble them in color and who are in poverty, violent, imprisoned, on welfare, clown-like, and generally lacking power over their own *3 destinies. Not surprisingly then, the message absorbed by children from media is that white males are worthwhile and are entitled to power and success, while other groups are not.
The broadcasted, and often commercial, messages do not only affect young children. The messages can also affect those trained to be critical, independent, and analytical thinkers. A number of years ago in my civil rights course, a third-year law student, who was nonblack and nonwhite, approached me after class to talk. She seemed to be quite excited about the reading she had completed for that day's class. "Wow!" she exclaimed. "Before I completed our reading for today I did not know that any poor, minority women cared about their children." My response was, "Oh my . . . where did you get an idea like that?" The law student, who had excellent grades, answered, "From television and from the movies. And I always thought that if it were not true, it would not be on television." Even a future lawyer, then, can be cajoled by the power of the marketplace to facilitate skewed views of worthiness and justice. This essay is a necessary response to these subtle messages of hate and racial disdain that affect our conceptions unwittingly, as the messages become disguised as speech for entertainment or speech for commercial purposes only.
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Hate-filled messages promoting racial inequality are not just found on certain organizations' websites, in political protests, or certain groups' products. The messages can even slip into our hours of entertainment in front *4 of the television or while watching movies. This essay is about those subtle messages and the negative influences of these messages, especially as illustrated by one film in particular--James Cameron's Avatar. But the film illustration that follows is only the first major point of this essay. The second point is that the negative influences of these racial messages in the entertainment or commercial market should be important in the formulation of freedom of speech legal jurisprudence.
How these messages may be accounted for becomes difficult given the United States Supreme Court's controversial holding in Citizens United v. Federal Election Commission, where the Court declared that a corporation's speech was political speech, thus giving for-profit and nonprofit corporations the same protection for political speech as provided to individuals. According to the Court, governmental restrictions on a corporation's political speech must satisfy strict scrutiny, the most exacting form of judicial review of governmental actions.
*5 In Citizens United, a corporation's management attempted to use Hillary: The Movie, a film, to influence voters to reject Hillary Clinton's presidential candidacy. The corporation seemingly thought that Hillary Clinton would be the Democratic candidate for President in 2008, and wanted to depict her as unfit for the Presidency. The Court, over a strong dissent, broadly held that restrictions on corporate political speech must have a compelling governmental interest, and the restrictions must be narrowly tailored to that interest. This strict scrutiny of governmental regulations is an exacting level of review and is the highest protection (from government) given by the Court to speech and other individual rights.
If a corporation has the same political speech rights as an individual, the Court's holding in Citizens United potentially gives broad protections to corporate falsehoods, as individual political speech can receive expansive protection even if it is false. If the law considers this corporate speech political, even though it may be commercial for-profit speech, then, under present jurisprudence, expensively funded, corporate political speech seemingly is also entitled to the highest protection, just like individual political speech. Thus, corporately funded political falsehoods can be labeled as political speech. These corporate falsehoods could then flood the market, especially the marketplace of ideas about racial minorities or nonwhites.
*6 If we take Citizens United several steps further, false, misleading, and even hatefully targeted speech about race can be disguised as commercial or entertainment speech and still receive the protection given to political speech. This communication of hateful speech, seemingly as entertainment or com-mercialism, is quite potent as it affects us when we are unaware and simply being entertained. When instead, we are being indoctrinated to believe in continued messages about racial inferiority of nonwhites. Hence, commercial speech and film can be used as a disguise for politically, racially hateful content. This means the Court elevates racially hateful messages to receive special protection whether they are an individual's political message or the disguised mass message of a corporate giant. Therefore, the truth of racial equality about nonwhites can never be reasonably expected to win out in the marketplace, because of the corporately funded and disguised falsehoods and hate that may flood the marketplace. This hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech.
This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial *7 media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out making the points of this essay not critically necessary)? Second, what are the race messages in the film, Avatar, which will be used here for illustrative purposes? Further, in giving corporate political speech the same protection as individual political speech, the majority and the dissent in Citizens United overlooked critical First Amendment jurisprudence, as it failed to distinguish corporate commercial speech from corporate political speech. So the third question asks what is the likely, or feared, impact of Citizens United on corporate commercial speech, and how does this relate to the film Avatar? And, fourth, what can those in unity with the justice-filled messages of the Pursuit of Justice Conference do to help the truth to prevail? We have a long way to go to promote the truth about race if we hope to become a more just society. If we do not do more, hate will continue to abound. This hate may be disguised as entertainment or commercialism, yet it is still hate which keeps us from thriving in a more civilized, and less hate-filled, society. While these hateful messages may come disguised, this writer's message does not. The clearly, undisguised message of this writer is that First Amendment jurisprudence must respond, in a meaningful way, to this societal problem and seek to hold the marketplace of ideas about race to the truth.
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The marketplace of ideas is overflowing with misconceived ideas about underrepresented racial groups that drown out the truth about the equality of these groups. This sentiment was expressed implicitly and explicitly at the Pursuit of Justice Conference. The opening speaker at the plenary argued that individuals who have been harmed want their voices to ring so that they can provide information about themselves to others. Although Dr. Barbara Perry's talk was about the victims of specific hate crimes, her points hold true for those in racial groups who have been historically and continuously harmed by racial biases in America. In other words, as one workshop leader, Tony Stewart, explained, the antidote to hate is to continue to progress from the hundreds of years of slavery and other exploitations, though government sanctioned segregations and discriminations, through the level of just merely tolerance extended by the dominant groups today, to the actionable celebration of formerly suppressed voices.
To achieve this American culture of celebration of formerly suppressed voices, dominant voices must not continue in willful blindness of the effect of hate offenses and hate speech. This willful blindness unfortunately has been supported both by the Court's protection of racially hateful speech and the Court's expansion of protection for corporate voices that may perpetuate these offenses in the guise of entertainment and commercial advertisement.
When I discussed my essay with a number of scholars, some feared that my thesis would cause more harm than good, as restricting speech rights, even of corporations, could injure speech rights for individuals. I don't completely share their fears. However, I do have fears about the present perpetuation of *21 hate directed toward underrepresented groups, and how some white Americans tend to dismiss this effect.
For me, the main questions are: Is corporate speech about under-represented groups political speech or commercial speech? And if it is political speech as it does convey a message, albeit often a hateful one, what are those who seek justice and equality to do? If this speech, such as in Hillary: The Movie and Avatar, is corporate commercial speech about race, it can be freely regulated. If the speech is false and misleading, the government need only meet a mid-tier level of review. On the other hand, if it is corporate political speech, then under present jurisprudence it can be protected from content regulation even if it is false and misleading, and government may regulate its content only by meeting strict scrutiny. My position is that promoting racial equality for historically underrepresented groups meets that exacting level of review. Even if it does not meet that level, there are still options, in spite of the holding in Citizens United and other opinions where the Court does not seem to be concerned with the impact of racial hate speech on nonwhites. We are consciously and unconsciously influenced by racial messages abundant in commercial speech and film for entertainment. So, this negative influence should be important in freedom of speech legal jurisprudence. But how do we make it important? We could trust the marketplace of ideas theory that one day, somehow, truth will prevail. This option does not seem promising, given the level of hate expressed openly in America. We could try to educate the children and others more about equality and about critical thinking even when they are being entertained. We can also recognize that Citizens United gives corporations potentially too much power, and join those who seek to have it overruled or minimized. We could also seek economic avenues to motivate corporations to promote the truth about race or seek the truth about race. Some political speech is in an unprotected category; so, racial fighting words directed against underrepresented groups could be restored to unprotected categories. My other favorite is simpler--at venues like the Pursuit of Justice Conference, we can gain courage to seek to flood the marketplace of ideas with principles of equality and truth.
Professor of Law, Mississippi College School of Law.