Hate Speech And The Misnomer Of ‘The Marketplace Of Ideas’ : NPR

Good long read by David Shih on some of the weaknesses in the free speech arguments:

Critical race theorists Richard Delgado and Jean Stefancic addressed this possibility in a 1992 Cornell Law Review article entitled “Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills.” They coin a term for the erroneous belief that “good” antiracist speech is the best remedy for “bad” racist speech: the “empathic fallacy.” The empathic fallacy is the conviction “that we can somehow control our consciousness despite limitations of time and positionality … and that we can enlarge our sympathies through linguistic means alone.”

In other words, the empathic fallacy leads us to believe that “good” speech begets racial justice and that we will be able to tell the difference between it and racist hate speech because we are distanced, objective arbiters…

In the meantime, racist hate speech flows unabated because of our faith in a flawed metaphor.

The marketplace is further gamed by “dog whistles” — code word replacements for overtly racist speech that still aim to stoke white resentment over the social mobility of people of color. When the sitting attorney general dismisses the ruling of a court because it resides on “an island in the Pacific,” he invents yet another way to signal which groups count in America and which ones don’t. And if a racist idea like this one ever flops in the marketplace, its author simply recalls it by saying he was joking.

A quarter-century ago when Delgado and Stefancic published their theory of the empathic fallacy, they speculated that the infamous Willie Horton ad tipped a presidential election because voters could not view the ad objectively. We now know that racism was the primary motivation for voters who put Donald Trump in the White House. We know that the best ideas of Gold Star father Khizr Khan at the Democratic National Convention were no match for fearmongering rumors about refugees from Syria and immigrants from Mexico. We know that after almost 100 days of Trump’s presidency, only two percent of those who voted for him regret it. This might mean they don’t see his speech as racist or don’t care if it is.

If we argue that racist hate speech must be protected, we have to account for the empathic fallacy.

We can start by admitting that this position is based on the troubling belief that it is one’s right to be hateful — and not on the comforting belief that hate is a catalyst for racial justice in a “marketplace of ideas.” Better than ever, we know how specious that logic is. We can understand that student protesters may not, in fact, long for their First Amendment rights should the tables turn on them. Law professor Charles Lawrence has argued that civil rights activists in the sixties achieved substantive gains only when they exceeded the acceptable bounds of the First Amendment, only when they disrupted “business as usual.”

Racist hate speech has come to emblemize free speech protections because the parties it injures lack social power. Students of color are expected to endure insults to their identities at the same time that celebrities win multi-million dollar defamation settlements and media companies scrupulously guard their intellectual property against plagiarism.

The belief that more speech is the remedy for “bad” speech can be a principled stance. But for the stance to be principled, it must account for why the target of racist hate speech is less deserving of exemption than, say, the millionaire with a reputation to protect from libel, or the community flooded with sexually-explicit material, or the deep state with a dark secret. Some exemptions make good sense. But does an obscene photograph of an adult that “lacks serious literary, artistic, political, or scientific value” (as defined in Miller v. California, the current law of the land regarding obscenity) really do more harm than a lecture promoting white supremacy?

American society fixates on antiracist protest when debating the First Amendment for the same reason it fixates on race when debating affirmative action: because of the perception that people of color are somehow undeserving of special privileges.

Yet it was supporting the rights of people of color that got Desiree Fairooz arrested in January for laughing during the Senate confirmation hearingof then-attorney general nominee Jeff Sessions. This week, the Department of Justice moved forward with her prosecution, along with those of two men who had mocked Sessions with fake Ku Klux Klan robes. In March, the Human Rights Council of the UN published a letter expressing alarm at the number of legislative efforts criminalizing peaceful assembly and expression in the US.

Powerful interests will find their way around the First Amendment to protect the status quo against antiracist protest. Asking student protesters to tolerate racist hate speech is to ask them to trust in free speech laws that have historically exempted the powerful and punished the vulnerable. When it comes to racism, the “marketplace of ideas” is not laissez-faire and never was.

Source: Hate Speech And The Misnomer Of ‘The Marketplace Of Ideas’ : Code Switch : NPR

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About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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