Should Racist Speech Enjoy Protection Under The First Amendment Essay
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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 would therefore have no way to combat it. By allowing free speech to continue and
by researching other methods of ending racism, we can get at the root of the problem and stop racism before it
starts. The key is not to limit or control action, but rather to influence reason and thought.
There are a number of methods that the government could employ to attempt to eliminate racism from...
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