Richard Delgado - Understanding Words That Wound

First published 2004 by Westview Press

Published 2018 by Routledge
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Copyright 2004 by Richard Delgado and Jean Stefancic.

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Library of Congress Cataloging-in-Publication Data
Delgago, Richard

Understanding words that wound / Richard Delgado and Jean Stefancic.
p. cm.

Includes bibliographical references and index.

ISBN 0-8133-4140-X (alk. paper)ISBN 0-8133-4139-6 (pbk. : alk. paper)

1. Hate speechUnited States. 2. Freedom of speechUnited States. 3.

Racism in language. I. Stefancic, Jean. II. Title.

KF9345.D45 2004

305.8 00973dc22

200320211

ISBN 13: 978-0-8133-4139-2 (pbk)

Text design by Reginald R. Thompson
Set in 10.5 Sabon by the Perseus Books Group

I believe any people in the world, when roused to a fury of nationalistic sentiment, and convinced that some individual or group is responsible for their continued and extreme misfortune, can be led to do or countenance the same things the Germans did. I believe that if conditions in the U.S. were ever to become as bad psychologically and economically as they were in Germany in the 1920s and 1930s, systematic racial persecution might break out. It could happen to the Blacks, but it could happen to the Jews, too, or any targeted group.

Sidney Hook

The Bible records the first known discussions of hate speech. In two passages, the Book of Exodus admonishes believers not to curse parents1 or the ruler of thy peoples.2 Later passages warn against cursing the deaf,3 rebuking neighbors,4 or scorning others, generally.5

Two thousand years later, Anglo-American law handed down some of the first decisions in which a citizen sued another for racial slurs and name-calling. In Contreras v. Crown Zellerbach, Inc.,6 the State of Washington Supreme Court considered the case of a Mexican American whose co-workers had subjected him to a torrent of racial abuse and vituperation on the job. Finding that the humiliation and embarrassment [that he suffered] by reason of racial jokes, slurs, and comments stated a valid claim against Contrerass employer, the court declared that racial epithets that were once part of common usage may not now be looked upon as mere insulting language.7

Less than a year later, the town of Skokie, Illinois, home to many Jews, a number of whom had lived through the Holocaust, was the site of a proposed Nazi march. Arguing that the demonstration and planned display of Nazi uniforms and swastikas would inflict psychological trauma on the towns many Jewish citizens, the town asked a judge to enjoin the march. A court of appeals acknowledged that many people would find [the] demonstration extremely mentally and emotionally disturbing. Citing the Contreras case, the court conceded that tort law was moving in the direction of recognizing the harm of hate speech. Nevertheless, the threat of criminal penalties, the court found, impermissibly interfered with the marchers First Amendment rights.8

This book explores some of the issues hate speech poses for a society like ours. It analyzes the teachings of social science on such matters as: How harmful is racist hate speech to the victim? To the perpetrator? To society at large? It looks at the way our thinking about these issues has changed to accommodate the Internet and virtual pornography, the advent of talk shows, campus hate speech codes, and hate directed against children. It describes how courts and legislators have wrestled with such issues as Confederate flags, words such as nigger, spic, and kike, hate speech against whites, and the experience of other countries in dealing with group-based hate.

Since one of us wrote the first article in the legal literature on hate speech, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling,9 in the Harvard Civil Rights Civil Liberties Law Review (1982), the literature on hate speech has exploded. Authors have deepened our knowledge of how hate speech feels to the victim, and, conversely, how it feels to be charged with a hate speech violation. They have expanded our knowledge of the international dimension of hate speech. Do other nations see hate speech as a problem, and what are they doing about it? Empirical science has sharpened our knowledge of who is victimized by hate speech, how often, and with what words. Courts have upheld penalties for hate crime andin a bewildering patchwork of circumstanceshate speech, often explaining their reasoning in the form of written opinions. And, of course, many scholars on the right or libertarian/ACLU left have registered their disapproval of any official discouragement of hate speech, putting forward a panoply of objectionsto which scholars on the other side have, naturally, put forward answers.

The hate speech controversy has sparked continual interest because it lies at the heart of two of our deepest valuescivil rights and equal respect, on the one hand, and freedom of speech on the other. Our society prizes liberty, so that we do not ordinarily tolerate restrictions on what a person can say, without a very good reason. At the same time, our system treasures equality and equal respect. For this reason, we do not lightly tolerate forms of behavior that demean and marginalize on account of race, sex, sexual orientation, or any deeply personal characteristic.

Not only is hate speech said (by those on one side of the fence) to fly in the face of certain intrinsic values important to democracy, scholars have argued that it is linked to actions, such as Indian extermination, Jewish pogroms, and lynching of blacks and Mexican Americans, that humanity has rightly condemned. Hate speech, for these writers, is instrumentally evil, even if it is not such in itselfor even if its regulation poses serious First Amendment problems.