The Paradox of Free Speech within the Context of White Supremacy

March 11, 2014 • R. Jamaal Downey • free speech

Kanye West was recently arrested for punching a man in his grill for calling his wife (Kim Kardishian) a nigger-lover. While it is up for debate as to the context in which the name-calling incident began, West settled out of court for roughly 250K of his hard earned cash.

(Image source)

Although I fully understand that violence is not the answer, there is power in language. More specifically, there is power in the word “nigger” – used by white people and people of color for very different historical and bloody reasons. Yet, this powerful word gets used and protected in the U.S. by the first amendment to the constitution, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I will not be arguing to take away or strike down the first amendment. The first freedoms granted to the citizens of The United States are among the most beautiful and poignant expressions of individuality to date; however, there are exceptions to every rule. The government cannot abrogate your freedom of speech, unless you happen to be in a crowded movie theater (Schenck v. United States). Therefore, our freedom of speech has limitations.

Given the historical context of white supremacy from the Spanish Asiento to English culpability in the institution of African slavery in the American colonies, the modern use of the word “nigger” continues to carries with it collective memories of a violent and oppressive era. It is because of this past that the use of this word by white people is unacceptable. No other word inflames the passion of black Americans more than the word “nigger” as it is a constant reminder of the debased status of blacks in the United States and justice that never fully materialized in our so-called post racial society.

Some white Americans, whether conscious or not, use the word “nigger” to provoke black Americans into confrontation. Marcus Smart, a sophomore basketball player at Oklahoma St. and a top 10 NBA prospect in the 2014 draft, dove into the crowd to save a ball during a game. As he stands and gathers his composure preparing to return to the court, a white man (who has been deemed the biggest Texas Tech basketball fan and was profiled by the team) yells a derogatory something at him.

(Image source)

Marcus Smart turns around charges and shoved the fan. It is up for debate as to the specific words used—the fan swears he did not use the word “nigger”; Smart is adamant that “nigger” was used in his direction by the fan. Again, violence is not the answer and this is not a call for vigilante justice. I am, however, concerned with the ability for a person to wave a piece of meat in front of a lion and then claim the lion to be a savage beast when it attacks. For black people, the word “nigger” is the carrot on a stick; it is used in order to generate a reaction that will then have serious and real-world repercussions, not for the name caller, but for the one called names.

Smart was suspended for three games and forced to write a full apology to the fan; the same man that Texas Tech and the media framed as a lifelong and avid fan which may have in the past toed the line of obscene comments, but that has never crossed said line. Bullshit. They praise the one who used the language; they made the victim, yes, the victim of racist actions surrender without any humility; dehumanization.

The ability of some white people to shout a single word to enact such rage among such a large group, and then cry when said rage ensues, should be charged with a crime. I understand that personal judgment is subjective and does not hold weight in court, but the use of this word to tease black people into confrontation should not be legally sanctioned, by omission.

I don’t know the answer I am trying to get at; hell I don’t know the question. I do know that in this age of colorblindness even though overt racism is evermore present today than in the past, the school to prison pipeline at its strongest, and capitalism’s uncanny stranglehold on education has created a false sense of a post-racial America. This pseudo-post-racial-world that is being created in attitudes and minds of younger Americans but which is not actualizing and materializing in real life, has as much supporting theory as trickledown economics.

We are on a slippery slope that descends us back into pre-civil rights times. The ability to use language in this manner, as a carrot on a stick in which I will beat you once you reach for the carrot, is the same structure that was used to dehumanize the large swaths of people that have been systematically oppressed.

(W)e (T)he (P)eople, pertaining to whites only, can freely speak their minds without thought.

(W)e (T)he brown (P)eople must succumb to their freedom of speech embedded in White Supremacy.

~ R. Jamaal Downey is a doctoral student at the University of Massachusetts at Amherst. You can find him on Twitter at @RJamaalDowney.

Cyber Racism & The Future of Free Speech (updated)

Two new cases of cyber racism – one in Moscow, the other in Denver – are both making news for the way that they highlight new forms of racism and for the way that they challenge our ideas about free speech.

In Moscow recently, A 21-year-old received a one-year suspended sentence for forming a racist group on the popular Vkontakte social network. In Russia, forming a racist group on their equivalent of Facebook was illegal because it violated Russia’s anti-extremist laws. This kind of action on a social networking site is not viewed as “free speech” worthy of protection. So, what about in the U.S.?

( photo credit: JeanbaptisteM )

Just last month, a former City of Denver employee Joel Pousson, 46, a former clerk at the City and County of Denver’s planning department, was arrested in August after authorities traced a racist, hate-filled e-mail to a computer in his Littleton home. Poussan, who is white, allegedly sent the email to an African American woman who works as a Human Resources Manager on the same day Pousson was notified that he was being terminated. In the email, Pousson repeatedly called the HR Manager a “n***” and suggested that she was now being targeted by the KKK (a very brief excerpt: “Because now the Klan has your name and address. And there are plenty of Klan members needing stroke with the klan. … Call it an initiation And the sheet-wearing ghost that takes you out, he gets a lot of rank.”) The reason that Pousson’s email was not considered “free speech” is that both the State of Colorado and the City of Denver have laws against “Ethnic Intimidation/Threats,” and Pousson’s email was prosecuted under this law.

Whether it’s a group organizing online or an individual sending email, the promotion of racism in the public domain threatens the sense of safety and security for those who are the targets of such cyber racism. Sometimes, it can also be the precursor to racially motivated violence. But, even if there’s no explicit threat of violence, racial hatred promoted online runs counter to the ideals of racial equality liberals say they value.

Yet, in the U.S. there’s very little dialogue about cyber racism, in part I think because of the liberal tenet that hate speech just an unfortunate consequence of free speech, even though that’s not true in Europe and other western democracies. And, free speech according to most of the leading intellectuals writing about the Internet, is considered the highest ideal, as in a post today by Tim Wu at The Chronicle of Higher Ed. In the piece (which previews a new book he has from Knopf), Wu deftly connects the early crusades against Hollywood movies by Catholics to current efforts to limit speech on the Internet by pressuring technology firms:

These firms are already under strong pressure to censor from powerful governments, religious groups, political parties, and essentially any outfit with a reason to want information suppressed. The Turkish government, for example, demands that Google take down mockery of the nation’s founder, not just in Turkey, but everywhere. The Church of Scientology has never stopped demanding of anyone who will listen to remove criticism of its practices from the Internet, usually claiming copyright infringement.

Wu’s assessment, like that of Mike Godwin and other cyberlibertarians, about the importance of free speech is flawed because it rests on an analysis of information as existing apart from political and social context. In such an analysis, “information” on the Internet is content free and should all be treated the same. I do agree with Wu, however, when he writes about what managing speech looks like today:

This is what speech management looks like in 2010. No one elected Facebook or YouTube, and neither one is beholden to the First Amendment. Nonetheless, it is their decisions that dictate, effectively, who gets heard. What’s the answer? There is no easy answer. Monopolies like Google, Facebook, and Hollywood have certain advantages: That’s why they tend to come into existence. That means the American public needs to be aware of the dangers that private censors can pose to free speech. The American Constitution was written to control abuses of power, but it didn’t account for the heavy concentration of private power that we see today. And in the end, power is power, whether in private or public hands.

While Wu evokes “power” at the end of this passage, he doesn’t go quite far enough in his analysis of how power shapes what constitutes information. Here, Wu is trapped within the same larger (white) frame as other scholars writing about the Internet without considering race. Within this frame, all “information” is the same offers no mechanism for evaluating claims for racial or social justice against the protection of free speech. Such a supposedly value-neutral frame for discussing free speech as separate from a social and political context systematically disadvantages some members of society and while it privileges others. To go back to the two cases of cyber racism I discussed at the top of this post, seeing all speech as neutral “information” would then mean that the racist group organizing online in Moscow and the racist email sender were both entitled to have their speech protected to defend the right to free speech.

Taking a stand against cyber racism isn’t a threat to the future of free speech. I don’t think we have to defend racist groups online in order to value free speech. And, I don’t think we have to defend the actions of people like the guy in Denver who sent the racist emails in order to value free speech either.

Outside the U.S., other democratic nations have taken seriously Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. This article requires countries such as Australia, NZ, the UK and Canada which are parties to the Convention to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred…and also the provision of any assistance to racist activities.” However, complying with this article in the global, digital era is no easy task.

Writing about the Australian context on today’s JWire, Peter Wertheim has a smart column in which he notes the difficulties of battling cyber racism across national boundaries when the U.S. acts as a haven and Internet companies (ISP’s) are recalcitrant, even proud, of hosting racist content. Wertheim writes:

ISP’s lack the knowledge and insight into racism to enable them to make an informed decision about whether a particular publication has crossed the line into racial vilification or harassment. More to the point, web-sites often generate advertising revenue for their owners, and the owners pay the ISPs. In social media platforms, the more viewers and discussion, the more advertising revenue can be created, and this advertising revenue usually goes directly to the platform provider. ISP’s and platform providers have a clear commercial interest against any form of regulation, and in being as permissive as possible. The final decision about whether or not to allow an allegedly racist publication to remain on the net should not rest with them.

Ultimately, even though the law is not the whole answer to cyber racism, it must be a critical part of the answer. Without the ultimate sanction of the law, the scourge of cyber racism will continue to grow unchecked. Like other contemporary scourges, such as terrorism and environmental degradation, cyber racism operates across national boundaries and governments acting individually cannot deal with it effectively.

Wertheim’s observation that Internet companies “lack the knowledge and insight into racism” to enable them to know what to do when faced with racist content is an astute one. I’ve worked in the Internet industry and I don’t think that the people there are evil, but have never learned to think critically about race or racism. Unlike that MCI commercial from the 1990s, the advent of the Internet has not meant “here – there is no race.” In fact, the advent of the Internet means that we need to be smarter about the new forms of racial hatred – like cyber racism – rather than dismissing them as just the price we pay for free speech.

As Werthiem points out, the law can’t be the whole answer but it “must be a critical part of the answer” is spot on, I think. And, as Wu notes, these decisions are already being made by those at the helm of Facebook and YouTube.

Cyber racism is a real problem of the Internet era but we shouldn’t confuse taking action against it as a threat to the future of free speech. In fact, it’s quite possible to balance free speech and concerns about cyber racism. Indeed, we must in this global, digital era.

Updated 11/16/10 @ 5:18PM ET: Just saw this on Twitter via @hopenothate: The BBC reports that in the UK, a man has been jailed 15 months for uploading racist video clips calling for a “racial holy war” on YouTube. Local law enforcement officials are quoted in the piece as saying: “Publishing something that is abusive and insulting and that is likely to stir racial hatred is against the law and [law enforcement] will work with the police to prosecute robustly anyone who does so.” This is not a threat to free speech, but rather recognizes that free speech has to be weighed in the balance with protecting the rights of those who are targeted by racist speech.

Hostile Racial and Religious Framing: The Consequences (UPDATED)

September 14, 2010 • Joe • free speech, Muslim Americans

Last year I did a post on hate speech and free speech issues, in relation to a New York Times post. Given the current anti-Muslim hostile commentaries and a decade of violent attacks on Muslim and Middle Eastern Americans, some of the issues raised in this earlier post are still highly relevant today. I fear that this generating of much anti-Muslim sentiment, especially in our right wing media is going to lead to yet more hate crimes. So I revisit here some of that earlier discusssion.

Last year the New York Times blog site had an editorial on the white supremacist and “free speech” issues arising out of recent killings. After their opening they have comments from a variety of criminological and legal experts (Phyllis B. Gerstenfeld, criminal justice professor; Chip Berlet, Political Research Associates; Eric Hickey, criminology professor; Edward J. Eberle, comparative law professor; Eugene O’Donnell, John Jay College of Criminal Justice; and Rabbi Abraham Cooper, Simon Wiesenthal Center.)

Here is what the Times editors open with under the general theme of “room for debate”:

The killing of George Tiller, the abortion doctor in Wichita, Kan., and the attack on the Holocaust Memorial Museum in Washington yesterday have raised questions yet again about the role that extremist propaganda sites play in inciting violence among some militant believers. In both cases, the suspect arrested was well-known among fringe “communities” on the Web. Most legal scholars and many experts on extremist violence in the U.S. oppose reining in of such sites, or restrictions on extremist speech generally. Should the United States consider tighter restrictions on hate speech?

Notice the language here and in later parts of the analysts’ commentaries. They talk about “militant believers” from “fringe communities,” and sometimes call them “extremist.” One has to ask why they do not call these terrorists by the term “white terrorists”? Indeed, “white” rarely appears at all in the editorial or commentaries. If these white men had been “Middle Eastern extremists,” they likely would be called by that term. Do white men get a pass when it comes go this group-linked terrorism? And not one of the scholars even raises this question and the related one about the very long U.S. history of white terrorism (e.g., thousands killed by Klan-type groups) against people of color, as well as others like Jewish Americans.

The main debate in the Times blog here is over “free speech,” and how we cannot restrict white supremacist and other hate speech because of first amendment protections. One of the Times blog commentators, Edward J. Eberle, law professor at the Roger Williams University School of Law provides what I see as very interesting comments:

The United States is perhaps the only country in the world that allows for protection of hate speech. Much of this has to do with the idea that a free exchange of ideas is important and that allowing speech — even hate-filled speech — can be a safety valve that helps prevent outbreaks of violence. Under this view, speech needs to be regulated only when it will present a clear and present danger, as when it is a direct incitement to violence.

OK, why is this point not central in our media and political discussions: We are the only country that protects aggressive white supremacist and other aggressive hate speech. Why is that? Is it only because of our first amendment and conventional ideas of “free speech” in the United States? Is it because we really do cherish freedom more than other countries? Is our past and present history one of much greater freedom and liberty than other countries? Or is it because we (especially elite whites who run the country) do not see aggressive racist or other extremist hate speech as threatening to them and the values they care about?

Yet, the United States does NOT have unlimited “freedom of speech.” This notion is in fact a myth. As Eberle points out, things like obscene speech are not protected speech, “even when there is no concrete demonstration of harm.” Indeed, numerous types of speech are not protected, including obscene words, “fighting words,” some deceptive commercial ads, etc, as this comment from the Electronic Privacy Information Center (epic.org) indicates:

Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection. As defined by Miller v. California, obscenity is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive manner specifically defined sexual conduct; and (3) lacks as a whole serious literary, artistic, political or scientific value. The definition of obscenity, developed in 1973, focuses on a local “community standard,” and has proven to be the crux of litigation surrounding internet censorship cases, which by their nature cannot depend upon local community standards.

So, let me get this straight, we do legally ban obscene words, sexual words, obscene speech in many contexts even when these words have not been, or cannot be, proven to create significant harm. We still ban them in numerous settings regardless of the first amendment. But it is OK to spout much racist hate speech all over the place, including on the Internet, when one can show it causes some or much harm–including inciting people like white terrorists to commit violence against people of color and others? (Some “communities’ standards” and views of what is harmful clearly count more than others.)

Eberle notes how isolated the “free” United States is from other free countries, including those we consider our closet allies and kindred countries. Most do not protect serious hate speech, but prosecute it:

This is the case in all the European countries, like Germany, France, Britain, etc., and also Canada.

Notice that these are countries with high levels of free speech, in many ways countries where speech is more diverse and/or free than in the United States (as many newsstands in these countries reveal). Their legal systems recognize a conflict in human freedoms. The right of freedom of speech is not so absolute and does not always trump the right freedom from extremist hate speech and related hate crimes. Eberle notes what he calls the U.S.

individualist model of a right to self-determination and expression. For the Europeans and others, there is also a right to speak your mind, but there are some bounds based on respect of others.

So, how did we get to this backward place of protecting extreme racist speech over the right to be free from such vicious, often violence-generating hate speech attacks? Not one of these criminologists and law professors speaks to how we as a country might reasonably regulate the most extreme forms of racist hate speech, the kind designed to incite people to discriminate and commit hate crimes. These analysts do not consider what other “advanced” democratic countries do in this regard as legal or political strategies we might just consider in dealing with aggressive and virulent hate speech. Why are we so ethnocentric and provincial in not even knowing about or considering other, often more democratic, legal and political systems–and what they do to free their citizens from such virulent racist attacks?

UPDATE: One reader asked about the numbers. The Southern Poverty Law Center has this useful summary of the most recent DOJ reports on hate crimes:

The FBI has reported national hate crime totals of between about 6,000 and about 10,000 since it began publishing the numbers in 1992, depending on the year (the new report counts 7,264 incidents in 2007). But a definitive 2005 study by the Department of Justice’s Bureau of Justice Statistics, based on detailed and highly accurate National Crime Victimization Surveys, found that the real annual level of hate crime in America averaged some 191,000 incidents — in other words, about 20 to 30 times higher than the numbers annually reported by the FBI.

There are a huge number of such incidents across the country. (This SPLC summary does not distinguish anti-Muslim attacks. However, in nine weeks after September 11, there were at least 520 violent attacks on people thought to be of Middle Eastern ancestry. Recently, CAIR reports 116 hate crime incidents targeting Middle Eastern Americans in 2008, the most recent year I’ve seen data on– and more than 1000 since 2001. Nationwide, the number of civil rights complaints processed in 2008 by CAIR and affiliates was 2728. These numbers appear to be at least that high since then. I have not seen similar reports for countries overseas. Maybe our European readers can fill that gap in? I did find one international [PDF] report that accents violent hate crimes and reviews the very variable and often missing or inadequate data for European and other countries. Better quality reporting seems necessary for the US and numerous other countries.)

SECOND UPDATE: Jessie has previously shown how US racism can shape overseas hate crime now that we all live in global internet “country.”

Racism and the Stroke of a Brush–Arizona Again

June 14, 2010 • José Cobas • children, education, free speech, popular culture, white racial frame, youth

A farcical show of racism took place recently in Prescott, an Arizona city of 34,000, located 120 miles north of Phoenix. The cause was the opposition by some local citizens to a public mural located at an elementary school. The mural’s purpose was to advertise a “green transportation campaign.” Likenesses of four elementary school children of various races were part of the display.

The presence of nonwhite children in the mural bothered some of the local white citizens. Regarding the painted wall, one of the mural artists, reported that as the artists and some children worked on the project they were heckled. “We had children painting with us, and here come these yells of (epithet for Blacks) and (epithet for Hispanics).”

Wall reported that subsequently school principal Jeff Lane asked him to make the children’s faces appear “happier and brighter.”

“It is being lightened because of the controversy,” Wall said. He added that, “they want it to look like the children are coming into light.”

It would appear that ‘brighter’ and ‘coming into light’ mean ‘whiter.’ Yet Lane denied any political pressure, asserting the changes were made “from an artistic view. nothing to do with race.”

It is important to note that the mural was funded by a state grant. Furthermore, Wall reported that thousands of town residents volunteered or donated to the project.

Nevertheless the ‘mural battle’ is a stark reminder that racism still is alive, even if sometimes it comes as tragicomedy.

Should We Regulate Extreme Racist Speech Like Other Democracies?

June 13, 2009 • Joe • antisemitism, cyber racism, free speech, government action, journalism, language, language & discourse, law, media

photo credit: Caveman 92223

The New York Times blog site (HT, Zulema) has an editorial on the white supremacist and “free speech” issues arising out of recent killings. After their opening they have comments from a variety of criminological and legal experts (Phyllis B. Gerstenfeld, criminal justice professor; Chip Berlet, Political Research Associates; Eric Hickey, criminology professor; Edward J. Eberle, comparative law professor; Eugene O’Donnell, John Jay College of Criminal Justice; and Rabbi Abraham Cooper, Simon Wiesenthal Center.)

Here is what the Times editors open with under the general theme of “room for debate”:

The killing of George Tiller, the abortion doctor in Wichita, Kan., and the attack on the Holocaust Memorial Museum in Washington yesterday have raised questions yet again about the role that extremist propaganda sites play in inciting violence among some militant believers. In both cases, the suspect arrested was well-known among fringe “communities” on the Web. Most legal scholars and many experts on extremist violence in the U.S. oppose reining in of such sites, or restrictions on extremist speech generally. Should the United States consider tighter restrictions on hate speech?

The United States is perhaps the only country in the world that allows for protection of hate speech. Much of this has to do with the idea that a free exchange of ideas is important and that allowing speech — even hate-filled speech — can be a safety valve that helps prevent outbreaks of violence. Under this view, speech needs to be regulated only when it will present a clear and present danger, as when it is a direct incitement to violence.

Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection. As defined by Miller v. California, obscenity is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive manner specifically defined sexual conduct; and (3) lacks as a whole serious literary, artistic, political or scientific value. The definition of obscenity, developed in 1973, focuses on a local “community standard,” and has proven to be the crux of litigation surrounding internet censorship cases, which by their nature cannot depend upon local community standards.

This is the case in all the European countries, like Germany, France, Britain, etc., and also Canada.

individualist model of a right to self-determination and expression. For the Europeans and others, there is also a right to speak your mind, but there are some bounds based on respect of others.

Addendum: Paul Krassner reviews some of the array of speech censored and banned under the “obscenity” regulations of various places in the country. But no hate speech.

When Antisemitic “Pseudo-Science” Gets Tenured and Promoted to Full

February 15, 2008 • Jessie Daniels • academic, antisemitism, free speech, neo-Nazi, scientific racism

There’s quite a controversy brewing within academic circles about a tenured full professor of psychology at Cal State U. Long Beach, Kevin McDonald, that raises important questions about the creation of knowledge, the academic enterprise and race. McDonald, who is an evolutionary psychologist, contends that Jews are a separate race driven by genetics and evolution to band together, both for “group survival” and to undercut white, Western culture. Further, he asserts that the Third Reich’s Nazi movement developed specifically to counter “Judaism as a group evolutionary strategy.” He claims to be “agnostic” about whether or not the Holocaust happened, and yet, testified on behalf of infamous Holocaust-denier, David Irving. Not coincidentally, McDonald says that he testified in support of Irving because he was motivated by a desire to defend academic freedom, not deny the Holocaust. Although McDonald includes a disavowal on his website that he does not “condone white racial superiority, genocide, Nazism or Holocaust denial,” his actions – and his research – suggest otherwise, as Scott Jaschik demonstrates in his piece in Inside Higher Ed (Feb.14). Jaschik points out that a favorable story about McDonald’s work appears on Vanguard News Network, a white supremacist website. And, in Heidi Beirich’s thoroughly devastating piece on McDonald for SPLC’s Intelligence Report, she notes that his work is more popular than Mein Kampf with neo-Nazis and white supremacists. In fact, David Duke draws heavily on McDonald’s work for his own antisemitic and racist autobiography, My Awakening, and the condensed version, Jewish Supremacism. McDonald and Abernethy And, according to Beirich’s report, in 2004 white supremacists David Duke (former Klansman and Louisiana legislator), Don Black, Jamie Kelso (of Stormfront, the main online portal for white supremacy) and Kevin Alfred Strom (of the neo-Nazi National Vanguard) all attended a ceremony in which McDonald was honored by The Occidental Quarterly, a white supremacist journal. McDonald is pictured here receiving the award, alongside Virginia Abernethy, a self-described “white separatist.”

As you might expect, the controversy is widely being framed as an issue that tests the bounds of academic freedom. This is both an obvious, and a deeply problematic, way to frame this particular case. On the one hand, McDonald is an academic with tenure (and a promotion by his peers to full professorship) who has controversial and unpopular views and should, within the rules of the academy, be allowed to express those views.

On the other hand, framing McDonald’s vile “scholarship” as within the bounds of what is acceptable and even protected within the academy is deeply problematic given the context of his position within a public university with a commitment to human rights, diversity, and to offering an equal educational environment for all who enroll there. I’m generally quite critical of absolutist defenses of “free speech,” and am persuaded by critiques of the first amendment grounded in critical race theory.

Yet, I find this particular case vexing Continue reading…

A New Noose and a Critique of ‘Free Speech’

October 23, 2007 • Jessie Daniels • free speech, harassment, hate crime, NYC

It seems we can’t go a day without a report of racial terrorism in the shape of a noose. The news here in NYC is reporting on the appearance of another noose, this one sent to a high school principal in Canarsie, Brooklyn, along with a note advocating “white power.” At the same time, the NY State Senate unanimously passed legislation that would make it a felony involving harsher punishment for people “who etch, paint, draw or otherwise place or display nooses on public or private property,” (quoted from the Newsday article linked above). And, even though that legislation passed unanimously, I fully expect that it will run into trouble in the House and in the public sphere as people defend it as a form of “free speech” protected by the First Amendment. The sort of knee-jerk defense of nearly any form of racism as “protected speech” is characteristic of what is by now a decades-long backlash against very modest gains by women and people of color, particularly in the academy. (I find it not at all surprising that so many of these incidents are happening in educational institutions, where these modest gains toward equality seem most evident.) Legal scholars Matsuda, Lawrence, Delgado and Crenshaw writing from a critical race perspective in their introduction to Words that Wound, merit quoting at length on this point:

“Contemporaneous with the recent outbreak of gutter hate speech and racial harassment, there is an emerging and increasingly virulent backlash against the extremely modest successes achieved by communities of color, women, and other subordinated groups in our efforts to integrate academic institutions run by and for white male elites. The chief spokespersons for this more refined sentiment against persons and voices that are new an unfamiliar to the campus and intellectual discourse are not purveyors of gutter hate speech. They are polite and polished colleagues. The code words of this backlash are words like merit, rigor, standards, qualifications and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend that the powerful have become powerless. …Stripped of its context this is a seductive argument. The privilege and power of white male elites is wrapped in the rhetoric of politically unpopular speech. …The first amendment arms conscious and unconscious racists — Nazis and liberals alike — with a constitutional right to be racist. Racism is just another idea deserving of constitutional protection like all ideas. ” [emphasis added] (Matsuda et al., 1993:14-15).

What’s at stake here is, as these scholars point out, “our vision for this society,” not merely how to balance one individuals’ freedom of speech against another individual’s freedom from injury but what the substantive content of that freedom and equality looks like. What they’re calling for – have been calling for, for some time now – is a radical shift in perspective so that it is the victim’s story that’s at the center of our response.

So, to take the current example, the laws should be written from the perspective of those who are on the receiving end of the noose. And, while the NY State Senate has taken a step in the right direction here, it ultimately falls short because this is not a problem that’s isolated to New York state or to a particular region of the U.S. Racism, and the racist terror that the nooses represent, is a national problem that requires a collective response; and, yet the federal government remains predictably silent on the issue.