Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment

169 Pages·1993·3.46 MB·English

by  Mari J. Matsuda

Words That Wound

Words That Wound
Critical Race Theory, Assaultive
Speech, and the First Amendment
Mari J. Matsuda, Charles R Lawrence III,
Richard Delgado, and
Kimberlè Williams Crenshaw
New Perspectives on Law, Culture, and Society
First published 1993 by Westview Press
Published 2018 by Routledge
711 Third Avenue, New York, NY 10017, USA
2 Park Square, Milton Park, Abingdon, Oxon 0X14 4RN
Routledge is cm imprint of the Taylor & Francis Group, an informa business
Copyright © 1993 by Mari J. Matsuda, Charles R Lawrence III, Richard Delgado, and Kimberlè
Williams Crenshaw
Chapter 2 reprinted with permission from Mari J. Matsuda, Public Response to Racist Speech:
Considering the Victim’s Story, 87 Mich. L. Rev. (August 1989); Chapter 3 reprinted with permission
from Charles R Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, Duke
L.J. 431 (1990); Chapter 4 reprinted with permission from Richard Delgado, Words That Wound:
A Tort Action for Racial Insults, Epithets, and Name Calling, 17 Harv. C.R.-C.L. L. Rev. 133 ( 1982)
Poetry excerpt on page 24 reprinted with permission from Lorna Dee Cervantes, Emplumada,
(Pittsburgh: University of Pittsburgh Press). © 1981 by Lorna Dee Cervantes
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form
or by any electronic, mechanical, or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.
Library of Congress Cataloging-in-Publication Data
Words that wound : critical race theory, assaultive speech, and the
First Amendment / Mari J. Matsuda . . . [et al.].
p. cm. — (New perspectives on law, culture, and society)
Includes bibliographical references and index.
ISBN 0-8133-8427-3 (cloth). — ISBN 0-8133-8428-1 (pbk.)
1. Libel and slander—United States. 2. Hate crimes—United
States. 3. Freedom of speech—United States. 4. Racism in
language. I. Matsuda, Mari J., 1956- II. Series.
KF9345.W67 1993
346.7303'4—dc20
[347.30634] 92-41562
CIP
ISBN 13: 978-0-8133-8428-3 (pbk)
New Perspectives on Law, Culture, and Society
,
Robert W. Gordon and Margaret Jane Radin
Series Editors
Words That Wound: Critical Race Theory, Assaultive Speech, and
the First Amendment, Mari J. Matsuda, Charles R. Lawrence III,
Richard Delgado, and Kimberlè Williams Crenshaw
Mind, Machine, and Metaphor: An Essay on Artificial Intelligence
and Legal Reasoning, Alexander E. Silverman
Rebellious Lawyering: One Chicanons Vision of Progressive
Law Practice, Gerald P. Lopez
Wittgenstein and Legal Theory, edited by
Dennis M. Patterson
Pragmatism in Law and Society, edited by
Michael Brint and William Weaver
Feminist Legal Theory: Readings in Law and Gender; edited by
Katharine T. Bartlett and Rosanne Kennedy
FORTHCOMING
Intellect and Craft: Writings of Justice Hans Linde,
edited by Robert F. Nagel
Property and Persuasion: Normativity and Change
in the Jurisprudence of Property, Carol M. Rose
Failed Revolutions: Why Good Intentions, Great Promise,
and Boundless Energy Fail to Transform the World,
Richard Delgado and Jean Stefancic
The Philosophy of International Law:
A Human Rights Approach, Fernando R. Tesón
In Whose Name? Feminist Legal Theory and
the Experience of Women, Christine A. Littleton

Contents
1 Introduction, Charles R. Lawrence III, Mari J. Matsuda,
Richard Delgado, Kimberlè Williams Crenshaw 1
What Is Critical Race Theory? 3
Critical Race Scholars Enter the First Amendment Debate, 7
Building Theory Through Reflection on Action, 10
Toward a Postcolonial University: Reflections on
the Right to Be Racist, 13
2 Public Response to Racist Speech: Considering the Victim’s Story,
Mari J. Matsuda 17
Outsider Jurisprudence, 18
Racist Hate Messages: The Victim’s Story, 20
International Law of Human Rights: The Emerging
Acceptance of the Victim’s Story, 26
U.S. Protection of Racist Hate Propaganda: The Civil
Libertarian’s Story, 31
Narrow Application and Protection of First Amendment Values, 35
Hard Cases, 38
The Unintended Story: The Meaning of Legal Protection
of Racist Hate Messages, 47
Conclusion, 50
3 If He Hollers Let Him Go: Regulating Racist Speech on Campus,
Charles R. Lawrence III 5 3
Brown v. Board of Education: A Case About
Regulating Racist Speech, 59
Racist Speech as the Functional Equivalent of Fighting Words, 66
Knowing the Injury and Striking the Balance: Understanding
What Is at Stake in Racist Speech Cases, 71
“Which Side Are (We) On>” 82
Epilogue, 87
vii
vili Contents
4 Words That Wound: A Tort Action for Racial Insults,
Epithets, and Name Calling, Richard Delgado 89
Psychological, Sociological, and Political Effects
of Racial Insults, 90
Legal Protection from Racial Insults, 96
Elements of the Cause of Action, 109
Conclusion, 110
5 Beyond Racism and Misogyny: Black Feminism
and 2 Live Crew, Kimberlè Williams Crenshaw 111
An Examination of Intersectionality, 113
Representational Intersectionality and Images That Wound, 117
Addressing the Intersectionalities in the
2 Live Crew Controversy, 120
6 Epilogue: Burning Crosses and the RA. V. Case,
Mari J. Matsuda and Charles R. Lawrence III 133
Notes 137
Bibliography 147
About the Book and Authors 153
Index 155
1
Introduction
,
Charles R. Lawrence III, Mari J Matsuda
Richard Delgado-, and Kimberlè Williams Crenshaw
This is a book about assaultive speech, about words that are used as weap-
ons to ambush, terrorize, wound, humiliate, and degrade. Of late, there has
been an alarming rise in the incidence of assaultive speech. Although this is
hardly a new phenomenon—hate speech is arguably as American as apple
pie—it is a social practice that has gained a new strength in recent years.
Incidents of hate speech and racial harassment are reported with increasing
frequency and regularity, particularly on American college campuses, where
they have reached near epidemic proportions. The National Institute Against
Prejudice and Violence in its 1990 report on campus ethnoviolence found
that 65 to 70 percent of the nation’s minority students reported some form
of ethnoviolent harassment, and the number of college students victimized
by ethnoviolence is in the range of 800,000 to 1 million annually.1
In response to this outbreak of hate speech, many universities and
other public institutions have enacted regulations prohibiting speech that
victimizes racial minorities and other historically subordinated groups. These
regulations have prompted a heated and wide-ranging public debate over
the efficacy of such regulations. Many believe that hate speech regulations
constitute a grave danger to first amendment liberties, whereas others
argue that such regulations are necessary to protect the rights of those
who have been and continue to be denied access to the full benefits of
citizenship in the United States. This debate has deeply divided the liberal
civil rights/civil liberties community and produced strained relations within
the membership of organizations like the American Civil Liberties Union
(ACLU).
Those civil libertarians who favor restrictions on hate speech find them-
selves in a distinct minority. They are called “first amendment revisionists”
and “thought police.” It is not a coincidence that the strongest sentiment
for regulating hate speech has come from members of victimized com-
munities. Persons of color, women, gays, and lesbians are disproportionately
1