Words That Wound: Critical Race Theory, Assaultive Speech, And The First Amendment

"Words that Wound was written in the early nineties by a group of law professors who were part of the critical race studies movement. They focused on an issue that we’re grappling with to this day: How do you deal with the impacts of damaging and degrading speech, racist speech, sexist speech, bigoted speech and slurs. A few minutes ago, we spoke about libel, defamation and false advertising—three types of speech that are subject to sanction, despite the First Amendment. These scholars recognized that hostile speech can cause real harms too. So, they set out an interpretation of the First Amendment that permits the inhibition of hateful speech. “Few seem to know what the First Amendment protects and what it does not” The anti-racist movement is bringing more forceful and frequent calls to handle the hazards of speech with new prohibitions. My personal view is that more must be done to mitigate the impacts of noxious speech, but expanding the authority of government to suppress speech is counterproductive. Dialogue, education, condemnation, social taboos and other types of counter speech are healthier for our democracy. The idea is that if people are persistently heckled, ridiculed and otherwise victimized by hateful speech, their ability to participate in politics, their freedom of assembly and their access to all the rights of citizenship is compromised. I stress, in my book, that we have to take this seriously. I disagree with the defenders of free speech who downplay the harms of speech, for fear of opening the door to suppression. To keep the landscape for speech as free as possible, we must acknowledge the harms of speech forthrightly and robustly curb the damaging impacts of speech through measures other than legal constraints, otherwise it’s hard to counter arguments for censorship."