Racist Speech and the First Amendment

Abstract

In particular, this Article suggests that the use of crudely insulting racist invective, in the form of invidious racial epithets, alone or in the context of other speech, remains a significant problem. Most or all of such speech may constitutionally be restricted, chiefly on the grounds that such speech, inherently or in its context, does not amount to an attempt to communicate any particular social idea and therefore fails to fall within the class of speech in the constitutional sense, or speech the legal protection of which promotes the range of values or purposes that might be thought to underlie the free speech clause. In most or all cases in which racial epithets occur in the context of a more extended speech which by itself or in conjunction with the racial epithet communicates a sufficient social idea to otherwise qualify for free speech protection, it will ordinarily be possible to disaggregate the speech into a protected ideational component and an unprotected racist epithet component. Such speech may then be restricted not insofar as it conveys a particular social idea but insofar as the racist epithet's use either imposes social or psychological harms on its target or victim, or, more importantly, is thought of by the society as an act of deontic moral wrong.