Past, Present, and Future Challenges to Our Freedom of Speech
by Nelson Rosit
At American universities, law schools, and liberal think tanks minority scholars are developing the rationale and legal framework for draconian new restrictions on freedom of expression targeted specifically at European Americans.
"Critical race theory" (CRT) is a radically anti-majority legal doctrine currently being promoted by a coalition of non-White racialists, radical feminists, Jews, leftists, and homosexuals. Although they are radicals, critical race theorists teach at the most prestigious universities, write for the most authoritative journals, and work at leading nonprofit institutions. Their views must be taken very seriously. These race theorists believe that only racially selective restrictions on First Amendment rights aimed at Whites can insure equality and harmony in our multiracial, multicultural society.
Let us begin by noting that freedom of expression--the unrestricted use of written and spoken words, symbols, and images--has never been absolute, nor can it ever be so. The need for order and the welfare of the community requires that censorship must temper freedom. Censorship is simply the imposition of a set of standards on freedom of expression. Thus, the question society faces is not censorship or no censorship, but how much censorship and by whom.
The current drive for racial restrictions on free speech in this country started in the 1980s on university campuses. As institutions of higher learning began to experience the effects of greater racial and cultural diversity, civility and decorum became more difficult to maintain. The forces of multiracialism sold timid university administrators on the need for new regulations to avoid trouble.
Most readers are familiar with the clumsy and largely ineffective attempts by academia to prohibit so-called "hate speech." The University of Michigan speech code, for example, proscribed "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status . . . ." Would a classroom discussion about the rate of violent crime among Blacks or the rate of AIDS infection among homosexuals stigmatize Blacks or homosexuals in that class? It might, and with penalties including expulsion for students and firing for faculty it is not difficult to see how speech codes have a chilling effect on free expression by White students and teachers.
Perhaps the most totalitarian campus speech code was implemented by the University of Connecticut. Among other things it prohibited "inappropriately directed laughter [and] inconsiderate jokes," "conspicuous exclusion" of people from conversations, and "imitating stereotypes in speech or mannerisms" -- i.e., mimicry, including apparently what George Orwell called "face crime." The stated objective of these regulations was, in the words of the University of Connecticut code, "to create a positive environment in which everyone feels comfortable working and living." The fact that White students seeking a traditional education might not feel comfortable on a campus run by Red Guards was of no concern to the administrators at Storrs, Connecticut.
It is common for those wishing to suppress any expression of a collective White identity on campuses to claim to be only interested in promoting tolerance and harmony. They usually give as examples of the type of speech they want to prohibit the crudest racial epithets and the most vulgar ethnic slurs. If one looks a bit closer, however, one realizes that good manners are not the real issue.
Minorities in our polyglot society have found it to their advantage to become hypersensitive to any real or imagined slight or threat. For example, the Anti-Defamation League in its 1993 report included advertisements, news articles, published letters to editors, and editorials in campus newspapers which question their version of the "Holocaust" as "anti-Semitic incidents" on college campuses. Among the supposed "racist incidents" at colleges listed by race theorist Charles R. Lawrence III in a Duke Law Journal article were: "Racist leaflets distributed in dorms" at the University of Michigan and a "White Student Union formed" at Temple University. It becomes obvious that the purpose of speech codes is not to insure tolerance or preserve proper decorum: the purpose is to intimidate and to silence. The question of whether or not America should be a multiracial, multicultural society already has been decided once and for all. No dialog, no discussion, no debate will be permitted on this issue.
Although Federal district court decisions in 1989 and 1991 have rendered campus speech codes moribund for the present, it was not a total loss for those who would ban Politically Incorrect speech. For one thing, the codes served to put racial restrictions on speech on the agenda. The court battles the codes spawned served as trial runs to test legal strategies and define legal doctrines. Most importantly, the codes served as a warning to White students who might object to the new multiracial orthodoxy that administrative action against dissidents was possible. Thus a vague yet poignant message was sent which tended to inhibit and deter potential dissent among White students, faculty, and staff.
Other testing grounds for racial restrictions on speech were certain liberal municipalities, such as St. Paul, Minnesota. In 1989 St. Paul passed a "Bias-Motivated Crime Ordinance," which prohibited, among other things, the display of symbols, such as "a burning cross or Nazi swastika," which might arouse "anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender . . . ."
In 1990 a White teenager was arrested for burning a cross and prosecuted under the new ordinance. The following year the Minnesota Supreme Court upheld his conviction, citing the work of Mari Matsuda, one of the leading critical race theorists, in its decision. The case then went to the U.S. Supreme Court. In June 1992 the court ruled unanimously in R.A.V. v. St. Paul that the city ordinance in question was unconstitutional. The decision, however, was not as sweeping a victory for free speech as it would first appear. Although the ruling was unanimous, the justices were sharply divided in their reasons for finding the ordinance unconstitutional.
Five justices ruled that the law was unconstitutional on grounds that it singled out speech with racial, religious, or sexual content for restriction. The other four justices argued that such restrictions were constitutional, but that the St. Paul statute was unconstitutionally "overbroad" and ambiguous.
One interesting note is that Justice Antonin Scalia's majority opinion was written as a dissent. At the last moment one of the justices changed his mind, and the Scalia opinion became a 5-to-4 majority. Tom Foley, former Ramsey County (St. Paul) prosecutor, who argued the city's case (the ADL, NAACP, and People for the American Way also filed briefs on behalf of the city) before the Supreme Court, believes that if the "overbroad" opinion had been the majority decision St. Paul would have rewritten its "Bias-Motivated Crime Ordinance," and it would be on the books today. Samuel Walker, professor of criminal justice at the University of Nebraska and author of Hate Speech (University of Nebraska Press, 1994), concluded that R.A.V. v. St. Paul "by no means completely settles the matter" of racial restrictions on speech. Related cases involving laws more narrowly drafted probably will come before the court in the future. It should be kept in mind that since 1992 Bill Clinton has appointed two liberal Jews to the Supreme Court, thus making it probable that the court would reach a different verdict if a case similar to R.A.V. v. St. Paul were to be decided today.
Critical race theory can be viewed, in part, as a response to the failure of racial restrictions on speech to survive court challenges in 1989, 1991, and 1992. In 1993 four race theorists--Mari Matsuda, Richard Delgado, Charles Lawrence, and Kimberle Williams Crenshaw (an Asian, a Hispanic, and two Blacks, respectively)--published Words That Wound (Westview Press, 1993), a CRT manifesto. They set out to develop a rationale and a legal doctrine for explicit, rather than just implicit restrictions on freedom of expression for European Americans. What they came up with is not a single unified theory but rather a multipronged attack on Western jurisprudence and individual and collective White rights.
The four main principles of CRT are: First, the law can never be completely objective, neutral, or color-blind, so it should favor the historically oppressed peoples. Matsuda calls this favoritism "victim's privileges."
Second, there is no real distinction between words and deeds. Thus, critical race theorists constantly use terms such as: "verbal acts," "verbal assaults," "linguistic abuse," "assaultive speech," and "speech acts." They equate verbal attacks to physical attacks.
The third principle is that the expression of White racism is the real barrier to racial equality in our society. It is the devastating psychological effect of hate speech that is the cause of Black social pathology and lack of achievement.
Finally, critical race theorists believe that legal precedent for criminalizing White racism already exists under U.S. and international law, but new legislation is needed to strengthen these legal principles.
In the name of equality, critical race theory accords special privileges to minorities. One such privilege is the dispensation from the sin of racism and exception from racial restrictions on speech. Only White people can be racists by CRT standards.
What if a Black leader advocated violence against White people? Surely that would be prohibited "hate speech." Not according to Mari Matsuda: "Expressions of hatred, revulsion, and anger directed against members of historically dominant groups by subordinated-group members are not criminalized by the definition of racist hate messages used here." Such verbal attacks by non-Whites can provide a healthy catharsis. Matsuda gives an example: "I would interpret an angry, hateful poem by a person from a historically subjugated group as a victim's struggle for self-identity in response to racism."
Would Jews be afforded special protection from criticism by majority members under CRT law? Yes. Matsuda states: "Anti-Semitic literature is one of the most highly developed and despicable forms of hate propaganda." She especially despises revisionist historians: "To call the Holocaust a myth is to defame the dead, as Elie Wiesel has so eloquently put it. It is a deep harm to the living. In a range of different contexts, the common law has recognized the likelihood of emotional harm to the living from careless treatment of the dead."
Related to critical race theorists' belief in the equivalency of words and deeds is the principle of vicarious liability. This extremely dubious legal theory makes those who, through their spoken or printed words, may have incited or inspired others to act liable for the actions of those others. Vicarious liability already has been used in civil suits to bankrupt White racialists by holding them legally responsible for acts of violence they did not commit and may not even have condoned. Of course, the principle of vicarious liability is selectively applied.
The psychological harm to minority members attributed to White racism by critical race theorists has been posited for decades, though this explanation for racial differences in behavior and achievement has never stood up well to scientific scrutiny. Psychological harm was the main reason given by the U.S. Supreme Court in the Brown v. Board of Education decision for outlawing segregated schools. The plaintiffs in that case made fraudulent use of a psychological study, the "doll experiments" by Kenneth B. Clark, a Black psychologist, which claimed to provide evidence that poor academic achievement by Black children was a result of low self-esteem brought about by segregation. The argument was untenable then, and in the four decades since that court ruling a mountain of scientific data on genetically based racial differences in intelligence and behavior has accumulated. Yet the old "psychological harm" explanation for racial differences has kept pace. Richard Delgado echoes the words of the Brown decision: "Because they constantly hear racist messages, minority children, not surprisingly, come to question their competence, intelligence, and worth." The mental trauma inflicted by White racism, especially on Blacks, is now given as a cause for everything from low test scores to high blood pressure. Delgado believes: "The psychological effects of racism may also result in mental illness . . . . The affected person may react by seeking escape through alcohol, drugs, or other kinds of antisocial behavior."
Critical race theorists' claim of legal precedents for criminalizing White racism also rests on shaky ground. The constitutional justification used is the equal protection clause of the Fourteenth Amendment, which they say takes precedence over the rights conferred by the First Amendment. The judicial cases cited involve decades-old Supreme Court decisions: Chaplinsky v. New Hampshire (1942), the "fighting words" case; and Beauharnais v. Illinois (1952), the group defamation case. The Beauharnais decision has been largely overturned, and the Chaplinsky case did not involve racial issues.
Equally important to CRT legal arguments are certain provisions under international law. Article four of the United Nations "Convention on the Elimination of All Forms of Racial Discrimination" (1966) requires member nations to "declare as an offense punishable by law all dissemination of ideas based on racial superiority or hatred, [and] incitement to racial discrimination . . . ." Furthermore, member states must "declare illegal and prohibit organizations, and also organized and all other propaganda activities which promote and incite racial discrimination . . . ." The United States was a signatory to this convention. Fortunately, the U.S. Senate has yet to ratify it.
Another international agreement, which the Senate did ratify "with reservations," was the "International Covenant on Civil and Political Rights" (1966). Article 20, paragraph 2 reads: "Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law."
Critical race theorists find it natural to appeal to the authority of the United Nations to enforce their concept of justice on White Americans. Unfortunately for them the United Nations does not have the means at present to enforce its will on its larger member states. However, the internationalists of the New World Order have plans to change that in the near future.
Again it should be kept in mind that CRT is not being put forward by some wild-eyed, Trotskyite splinter group. Mari Matsuda, for example, is a law professor at Georgetown University. Her articles have appeared in the Michigan Law Review as well as several other law journals. Her writings were cited in a decision by the Minnesota Supreme Court. Words That Wound, the book she co-authored, was widely reviewed in academic journals as well as mass circulation periodicals. Reviewers, while expressing certain reservations regarding CRT, praised the book, describing it as: "grandly compelling," "articulate and persuasive," "a vital contribution," and a book which "deserves a careful, open-minded reading." It appears that mainstream academics, with their usual pusillanimity, are sitting on the fence until they see which way the chips will fall. No use being on record as opposing a legal doctrine that may become the new orthodoxy in a few years.
Before we completely dismiss critical race theory, however, as simply the latest variety of minority racism dressed in academic garb, let us take another look at a couple of its principles. Perhaps because these minority race theorists are our most dedicated opponents they sometimes have a clearer view of reality than deluded Whites, both liberal and conservative.
Many of us can agree with the first principle of CRT: the law cannot ultimately be objective or race neutral. It certainly never has been so in the past. The Anglo-American legal system evolved to meet the needs of a specific people, and it cannot serve a multiracial society equally well. For us that is an argument against a multiracial society, not against our legal system.
Another valid point raised by critical race theorists is the power of words. One important point of departure: Europeans traditionally have believed that words shape people's perception of reality, while CRT proponents posit that words shape reality itself. They believe that one does not discover truth; one creates it with words. The fact that words are so important is the reason our opponents require our silencing to win a complete victory.
The most recent twist in CRT is to equate White racialist literature with pornography. According to Laura J. Lederer, a Jewess at the University of Minnesota Law School, pornography and racist speech are both hate propaganda: "Hate propaganda functions solely as a mechanism to separate people and to create hierarchies based on race, sex, religion, and sexual orientation." She goes on for ten pages in a recent book (The Price We Pay, by Lederer and Delgado, Hill and Wang, 1995) describing other similarities between racists and pornographers: they both publish periodicals, they both use computer networks, they both sell via mail order, etc. Ergo, they are the same. This is what can pass for social analysis in academia these days.
It is certainly the height of ironies that the race that invented the concept of romantic love and created a culture that has traditionally given women a higher position and more freedom than any other culture--including, especially, that of the Jews--is now accused of being in league with those who degrade and exploit women. What an example of psychological projection! They degrade our culture and then blame it on us.
Having established the rationale and legal doctrine for their new laws, critical race theorists have taken the next logical step and drawn up model statutes for racial restrictions on free speech. In 1995 Hofstra University Law School held a conference to draft a model group-defamation statute for the state of New York. The result was a proposal which would outlaw "any oral, written, or symbolic speech . . . that by its very utterance inflicts injury upon members of a group or that promotes animosity against a group." Section three reads: "An agency shall be established whose function is to monitor acts of group defamation occurring within this state." Additional provisions of the statute would specifically prohibit group defamation on state university campuses, on military bases, and through the mail.
As one can see, despite their setbacks with campus speech codes and municipal hate-speech ordinances, our opponents are still hard at work pushing for racial restrictions on free expression. And they are very optimistic that within a few years they will succeed in their endeavors. They realize that the defensive strategy of White conservatives and civil libertarians, based on the belief that the Bill of Rights can fend off any challenges to our freedoms, can hold out only for a limited time against the dynamic, offensive strategy of the critical race theorists.
Race theorists Laura Lederer and Richard Delgado argue in their book The Price We Pay that we must "move beyond the current legal framework and into the future. . . . [N]ineteenth century concepts of freedom of expression [are] behind us . . . . [F]ormulations that worked for the white male dominant society of the past . . . are failing us in the present and will stand in the way of any real democracy in the future." They conclude that "our society is in the middle of a major sea change" regarding our concept of free speech, and they leave little doubt as to which way they believe the tide is running.
We should be grateful to the critical race theorists for giving us a better perspective on the real issues involved in the controversy over freedom of speech. The real issues are not different interpretations of the Constitution or disagreements over the proper extent of individual liberties. When critical race theorists say they want to criminalize the expression of White racism what they really mean is that they want to criminalize Whites as a people. They truly hate and fear us. Their ultimate goal is to destroy European Americans as a group. For what is racism if not a feeling of group solidarity, of group identity and pride that all peoples must have if they are to survive as a people? Mari Matsuda has no objection to White persons as long as they are nothing more than pale components of a deracinated mass of denizens living in the New World Order Empire. But without a nation, without a culture, and without a community they can identify with and call their own, European Americans will have become collectively, if not individually extinct.
America is now embroiled in a war. Traditional conservatives refer to it as a cultural war. The more blunt-spoken radicals call it a race war. Perhaps the most accurate description might be a cold civil war which occasionally flares hot, as in Los Angeles in 1992.
This is a strange, complex war that very few European Americans even acknowledge, yet most are at least vaguely aware of it. The conflict is in part a physical struggle for territory. It is in part an economic struggle for wealth and status. The conflict also has cultural, political, and legal aspects. But like most cold wars it is mainly a propaganda war, a psychological war, a war of words.
This cold civil war may be thought of as a by-product of the 1960s revolution of the Jews and their youthful White followers.
If one has any doubt about who won that revolution, any doubt about who now comprises the establishment and who is in dissent, just look at who is calling for greater use of state authority. In 1964 leftist students in Berkeley were demonstrating for free speech. By 1994 the leftists at Berkeley were more interested in controlling speech than in freeing it. During the 1960s the liberals and leftists complained about FBI surveillance. Now they want increased FBI surveillance to thwart potential domestic terrorists. Critical race theorists call for increased state intervention knowing that the government, the media, and academia will be on their side in any conflict.
Yes, our opponents, that strange coalition of non-White racialists, leftists, radical feminists, and sexual deviants, led and financed by organized Jewry, won the 1960s revolution, but in the cold civil war that has followed complete victory has eluded them. Our sheer numbers (we are still a majority, though a rapidly decreasing one), our economic clout, our potential political power, and a large dose of passive, unorganized, culturally based resistance of White people to multiracialism and multiculturalism have so far denied those forces complete victory. But for how much longer?
Our opponents know the present situation is volatile. Multiracial, multicultural societies are inherently unstable. They hope that by imposing racial restrictions on speech they can keep the melting pot from boiling over a little while longer. Yet they also know that they must be careful not to overreach themselves. If they try to move too far too fast they could provoke a backlash from the detested White masses.
Our job is to keep the heat on those who would destroy us. We who understand what is happening must continue to reach out to our kin everywhere with a message of White survival in a darkening world. That is why, come what may, we must continue to dare to speak out.
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