Should Racist Speech Enjoy Protection Under the First Amendment?

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  • Topic: First Amendment to the United States Constitution, Freedom of speech, Supreme Court of the United States
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  • Published : July 22, 2002
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Persuasive Speech -

Should Racist Speech Enjoy Protection under the First Amendment?

Prejudice and racial stereotyping are two of this country's greatest problems today. Many people in our society have tried to find ways to eliminate or at least limit these types of behavior, but have met with very limited, if any, success. Because of the complex nature of racism and racist acts, coupled with the fact the first amendment prohibits the government from limiting the publics' right to free expression and speech, the Federal government has been ineffective in eliminating racist actions that pervade our society. State governments and institutions have attempted to set up their own laws condemning such actions, but have been wholly unsuccessful.

Some of those waging a war on racism have established anti-discrimination policies, and have had these policies challenged as a result. Central Michigan University, for example, had instituted a discriminatory harassment policy, only to have it shot down by the Supreme Court in 1995 on grounds that the policy "necessarily requires [the] university to assess racial or ethnic content of speech." Since Central Michigan University is a State school, the First Amendment prohibits it from enacting regulations that would limit an individual's right to free speech unless the regulations, according to a 1986 ruling by the Supreme Court, are "narrowly and precisely designed."

As you can imagine, precisely tailoring any statute in order to prohibit racist speech is nearly impossible - and as many other speakers have already said, banning the current racial slurs will only create new ones. Additionally, an outright ban on racist speech and ideas could likely lead to a higher level of violence in our society.

A number of other supreme court rulings have come out in favor of protecting all speech, including racist speech, such as:

A 1941 ruling on the case of Sullens v State, stating that the "Freedom of speech includes freedom to speak unwisdom or even heresy." A 1949 ruling on the case of Terminillo v Chicago, stating that "Attacks on racial and religious groups are protected by right of free speech in absence of showing of serious substantive evil that rises far above public inconvenience, annoyance, or unrest…" A 1952 ruling on the case of Joseph Burstyn, Inc. v Wilson, stating that: "[The] First Amendment prohibits [the] state from banning communication of ideas deemed by some to be blasphemous or sacrilegious." A 1965 ruling on the case of Cox v Louisiana, stating that "Freedom of speech is of paramount importance and may not be denied merely because it may create dispute." Thus with these rulings, and with the only notable exception being in the case of the utterance of "fighting words," which are defined as "words which by their very utterance inflict injury or tend to incite immediate breach of peace," racist speech is currently protected under the First Amendment.

Some would argue, however, that any racial slur or racist speech has no place in today's society, and that the general public does not want to hear and should not be subjected to hearing such outright bigotry. But does the right to speak one's mind outweigh the listener's rights? Apparently, yes, it does. According to the supreme court in the case of the National Labor Relations Board v Montgomery Ward & Co. (1946), the "First Amendment is concerned with freedom of thought and expression of [the] speaker or writer, not with conditions under which [the] auditor receives [the] message… [the] First Amendment does not require that [an] audience shall have volunteered to listen." This ruling essentially invalidates the argument, and forces the listener into a position where he must decide what to listen to and what to ignore, which is what we all do anyway.

Allowing racist speech is an important thing, though. Without it we would have no 'litmus test' available to test the racial tension in our country, and...
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