Civil Rights Laws and Freedom of Speech

The goal of civil rights is to achieve equality, itself definable in various ways, in place of discrimination. Free speech can powerfully advance that goal, and hence is often linked historically with it. Yet free speech can also mean the expression of ideas or attitudes that are at odds with civil rights, and hence there are times when the two are in conflict or at least in tension with one another.

The civil rights movement, and civil rights laws in the United States, center first and foremost on the idea of racial equality, especially in opposition to the pervasive discrimination that was long directed against Black Americans. Free speech, and freedoms of association and assembly which have close practical links to free speech, in turn have a long and positive association with the cause of civil rights, dating back to the movement for the abolition of slavery before the American Civil War. Freedom of speech was uncertain at best for many opponents of slavery. The abolitionist editor Elijah Lovejoy was shot dead and his press destroyed by a mob in Alton, Illinois, in 1837. Southern opponents of slavery, like Angelina and Sarah Grimke´ of South Carolina, fled or were driven out of the South. Southern postmasters would not deliver anti-slavery literature, and Congress for some years during the 1830s and 1840s even adopted a ‘‘gag rule’’ against antislavery petitions.

For a century after the Civil War, segregation and discrimination (‘‘Jim Crow’’) made for a racial caste system in the American South. Protest against Jim Crow was often perilous, just as protest against slavery had been. In the 1890s the offices of several black newspapers were destroyed by mobs, including—after it printed an editorial against lynching—the offices of the Memphis, Tennessee, ‘‘Free Speech.’’ Throughout the South, there were many decades of violence, both official and unofficial, against opponents of segregation. As protest against Jim Crow gathered force in the 1950s and early 1960s, civil rights rallies and marches were broken up by force. Civil rights demonstrators, including Dr Martin Luther King, were arrested, and there were notorious incidents of police dogs and fire hoses being turned on marchers. Three civil rights workers were murdered in Mississippi in 1964 with the apparent connivance of the police, and churches where civil rights meetings took place were attacked, including the Baptist church in Birmingham, Alabama, where four children were killed by a bomb in 1963.

With advocacy of civil rights under threat, civil rights and free speech became intertwined as causes: support for the one seemed easily interchangeable with support for the other. Constitutional law reflected this. In the 1950s and 1960s, the U.S. Supreme Court quashed disorderly conduct convictions of civil rights marchers, for example, and struck down parade permit laws as applied against civil rights demonstrations. The hostility of Southern officials, courts, and juries against civil rights advocates provoked a series of Supreme Court decisions safeguarding free speech and freedom of association, in some cases perhaps extending those concepts further than they might have been extended were it not for the struggle over civil rights. Thus, in NAACP v. Alabama, when the state of Alabama sought the local membership lists of a national civil rights organization in the course of a civil lawsuit, the Supreme Court held that freedom of association, with its ‘‘close nexus’’ to freedom of speech, precluded the disclosure, despite otherwise liberal ‘‘discovery’’ rules in litigation, since rank-and-file members would be open to local reprisals if their identity were revealed. In NAACP v. Claiborne Hardware, the Supreme Court also upheld, on free speech grounds, a business boycott organized by civil rights groups in Mississippi, although in addition to peaceful picketing and urgings to support the boycott, there had admittedly been threatening speeches and publications by the organizers against those in the local Black community who failed to observe the boycott. And the law of libel took a new constitutional direction in New York Times v. Sullivan, when an Alabama police commissioner sued the New York Times and was awarded $1.25 million in damages by a local jury over an advertisement criticizing law enforcement for a ‘‘reign of terror’’ against peaceful civil rights groups in the South. The Supreme Court not only quashed the verdict, it laid down very narrow conditions under which a ‘‘public figure’’ could successfully sue for libel, so that statements that would readily be deemed libelous in many other countries and, at common law, are now immune from lawsuits in the United States. It is at least imaginable that these cases, with their liberal view of what should be protected as free speech and freedom of association—even at the expense of other values or interests—might have been decided differently had they not arisen in the civil rights context.

By the mid-1960s, the social and legal revolution associated with the civil rights movement brought an end to the old regime of racial segregation and discrimination in the South. With the end of Jim Crow, the climate of threat and violence against opponents of segregation, once so pervasive in the South, also came to an end. Campaigns for civil rights certainly continued, aimed at achieving racial justice, defined in various ways. The success of the civil rights movement in the South also inspired others to frame their causes in civil rights terms: ethnic advocates, feminists, sexual minorities, and many others put their claims in this framework. These civil rights advocates, like advocates of any cause, have an obvious interest in freedom of speech and of assembly and association. In this sense, there continues to be important common ground between civil rights and free speech. But with the disappearance of the sort of hostility to free speech that typified the Jim Crow South, various tensions between civil rights and free speech have also come to the surface.

The tension was implicit, in a sense, even in landmark legislation like the Civil Rights Act of 1964. By forbidding employment discrimination, for example, the law inevitably diminished freedom of association for employers who wished to discriminate. It also amounted to a direct ban on certain sorts of ‘‘speech,’’ such as ‘‘Whites only’’ or ‘‘No Irish need apply’’ in employment advertisements. It can plausibly be said that freedom of association is always subject to a variety of limitations, especially in economic life, and that discriminatory want ads are ‘‘verbal acts’’ and hence should not be protected as free speech. In any event, the national interest in banning discrimination was great. Yet the fact remains that prohibiting discrimination does affect freedom of association; as for ‘‘verbal acts,’’ the distinction between ‘‘expressive speech’’ and ‘‘verbal acts’’ is a notoriously slippery one. Even here, then, there was some inevitable tradeoff, however fully justified the Civil Rights Act was.

In the decades that followed, a variety of civil rights laws, regulations, and policies have been directed at least in part at the expression of insulting or otherwise unwelcome attitudes or opinions, revealing more sharply and perhaps more troubling how civil rights and free speech interests can sometimes diverge.

Hate Speech

Criminal penalties for racial insults, and commonly for sexual or religious insults as well, have been adopted in several states. The courts have generally struck down these laws on free speech grounds, although in R.A.V. v. City of St Paul, four Justices of the Supreme Court indicated that they would uphold such laws if they were restricted to ‘‘fighting words’’ and did not seek to punish a broader range of insults such as those which (merely) ‘‘arouse anger’’ or ‘‘resentment.’’

Hate Crimes

The federal sentencing guidelines, and many state laws, punish various crimes—such as assault and vandalism— more severely if the crime was committed because of the race, ethnicity, gender, or sexual orientation of the victim. Unlike ‘‘hate speech’’ laws, the Supreme Court has upheld ‘‘hate crime’’ legislation, on the theory that punishment often takes motive into account; that the culprit has been convicted of a crime, not an opinion; and that the law may consider ‘‘bias’’ crimes to be especially dangerous to society, by terrorizing particular groups for example, and hence may punish the crimes more severely. From a free speech point of view, the trouble is that the extra punishment is for the culprit’s attitude or opinion, not for the crime itself. In that sense, ‘‘hate crimes’’ smack of the old criminal syndicalism laws, which punished ordinary crimes more severely if they were committed with socialist or anarchist motivations.

Speech Codes

Many colleges and universities, public and private, have adopted ‘‘speech codes,’’ which, typically, prohibit speech that ‘‘stigmatizes’’ anyone on the basis of race, ethnicity, gender, sexuality, or on any number of other bases. Supporters urge that these codes are necessary to ensure that members of groups who might otherwise be stigmatized should feel welcome on campus. Critics say that these codes contribute to enforcing a climate of political conformity on campus, since any expression of unwelcome intellectual or political views can easily be alleged to stigmatize one or another group. When adopted by public institutions, the courts have mostly struck down these codes as content based, vague, and likely to chill free expression. The state of California, by statute, also forbids private colleges to impose limits on free speech that would be unconstitutional on a public campus. But many private colleges and universities elsewhere maintain such speech codes.

Harassment in the Workplace

Federal and state employment discrimination laws have been interpreted to forbid speech in the workplace that creates a ‘‘hostile environment’’ on the basis of race, gender, ethnicity, or various other characteristics. Speech by employers or fellow employees that might be deemed harassment, if ‘‘pervasive’’ enough, can range from racial or ethnic slurs and sexual propositions to religious proselytizing, posting sexually suggestive pictures (including reproductions of works of art), and statements about political or social questions felt to be offensive. If an employee is harassed by fellow employees, it can be the basis for a discrimination suit against the employer. Hence employers have a strong incentive to forbid any workplace speech that could arouse complaint; and an employer might not give much weight to free speech concerns where it is a question of controlling the speech of employees, not the employer’s own speech. The tension between civil rights and free speech interests may be particularly stark here, because there is surely a danger to the effectiveness of equal employment laws if employees can be driven from their jobs by systematic verbal abuse. Yet most people spend a large part of their waking lives at work. Employers, pressured by federal and state civil rights enforcement agencies, and under threat of civil lawsuits, may seek to avoid harassment claims by closely policing what employees say, what topics they discuss, what views they express, and how they express them: even during mealtimes and work breaks, and with little regard for the chill on free expression.

Freedom of Association

Speech and advocacy by an organized group will usually get a better hearing than speech from an isolated individual: hence the obvious link between freedom of association and freedom of speech. But a group promoting a particular cause may ‘‘speak’’ with more unity and more effectiveness if membership is restricted to those likely to support the cause. To what extent can such groups lawfully discriminate in their membership? For example, may an organization promoting the advancement of an ethnic group restrict itself to members of that ethnicity? In 1984, the Supreme Court in Roberts v. U.S. Jaycees held that Minnesota civil rights laws could require the Jaycees to admit women as members, although the Jaycees’ stated purpose was ‘‘promoting the interests of young men.’’ In 2000, in Boy Scouts of America v. Dale, the Supreme Court apparently reversed itself by deciding, on free speech grounds, that the Boy Scouts could exclude adult gay volunteers, despite a New Jersey law forbidding discrimination against gays, because opposition to homosexual activity was one of the principles advocated by the Scouts. In recent decades, civil rights advocates have mostly favored a narrow right of ‘‘expressive association’’ and a robust enforcement of nondiscrimination laws, even as against noncommercial groups, and especially—as with the Jaycees and the Scouts—where advocacy is not the main or the only purpose of the group.

Feminism and Pornography

Many feminist activists and academics support bans on pornography, and a few cities and towns have enacted such bans on the theory that pornography is degrading to women and hence is discriminatory. Pornography in this context is typically defined as ‘‘sexually explicit subordination of women,’’ whether in words or pictures. This definition is much broader than the constitutional definition of obscenity: its ban would extend to works that have literary or artistic value, for example. Even some proponents of such laws are troubled when the law is enforced against homosexual or avant-garde literature, as has happened in Canada and other jurisdictions with feminist- inspired bans. Proponents of banning pornography do not deny the conflict with free speech: some deny that free speech is very valuable, but most urge that feminist civil rights concerns should weigh more heavily because pornography is ‘‘low value’’ speech. But celebrated twentieth-century campaigns against censorship involved works like James Joyce’s Ulysses, which had been banned as pornographic, and which might well fall under the feminist ordinances as well. When cities and towns in recent years passed ‘‘civil rights’’ laws against nonobscene pornography—and when Congress enacted restrictions on internet pornography— the courts struck down these laws on free speech grounds. Feminists and their supporters continue to debate, however, whether pornography should be banned and, if so, with what limits and definitions.

Inasmuch as civil rights are about equality, there is always a potential for conflict with free speech, especially when civil rights are thought to be threatened by inimical attitudes, insults, or ideas. Yet if the equality sought by civil rights is an equality of rights, few if any political rights are more fundamental than freedom of speech. Both as a matter of prudence and of principle, therefore, civil rights advocates might do well to respect and to defend free speech. It would be difficult to achieve civil rights, or any social change, without freedom to speak, to persuade, and to organize. And erosions of free speech compromise the goal of civil rights by eroding one of the fundamental rights which it is, or ought to be, the very purpose of civil rights to guarantee, equally, to all.

MAIMON SCHWARZSCHILD

References and Further Reading

  • Bernstein, David E. You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. Washington DC: Cato Institute, 2003.
  • Miller, William Lee. Arguing About Slavery. New York: Alfred A. Knopf, 1996.
  • Rauch, Jonathan. Kindly Inquisitors: The New Attacks on Free Thought. Chicago: University of Chicago Press, 1993.
  • Schauer, Frederick. Free Speech: A Philosophical Inquiry. Cambridge: Cambridge University Press, 1982.
  • Strossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: Scribner, 1995.

Cases and Statutes Cited

  • Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
  • NAACP v. Alabama, 357 U.S. 449 (1958)
  • NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)
  • New York Times v. Sullivan, 376 U.S. 254 (1964)
  • R.A.V. v. City of St Paul, 505 U.S. 377 (1992)
  • Roberts v. United States Jaycees, 468 U.S. 609 (1984)
  • Civil Rights Act of 1964, Public Law 82-352 (78 Stat. 241)

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