Racist Speech, Democracy, and the First Amendment

Abstract

The curse of racism continues to haunt the Nation. Everywhere we face its devastation, the bitter legacy of, in William Lloyd Garrison's prophetic words, our "covenant with death and ... agreement with Hell." This is the living consequence of the history that has produced us. We cannot overcome that history without changing ourselves and therefore also our legal order. Since Brown v. Board of Education vast stretches of our law have passed through the flame of this challenge. The question is always what to preserve, what to alter. Now it is the turn of the first amendment. Largely inspired by Richard Delgado's article, Words That Wound, the past few years have witnessed an extraordinary spate of articles analyzing the constitutionality of restrictions on racist speech. This analysis is not merely academic. Motivated by an alarming increase in racist incidents, universities throughout the Nation have turned toward the task of restraining racist expression. The justification for these restraints, and their relationship to first amendment values, has become a matter of intense controversy.