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Critical Approaches to the First Amendment |
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Critical Approaches to the First Amendment |
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Critical Race theory challenges the ability of conventional legal strategies to deliver social and economic justice. Some of its basic tenets include:
1) the belief that racism is a "fundamental part of American society, not an abberation that can be readily be remedied by law;"
2) a belief that "culture constructs its own social reality in its own self-interest"71 (minorities are not part of the legal systems self-interest);
3) an understanding that "white elites will tolerate or encourage racial progress for minorities only if doing so also promotes white self-interest;"and
4) that because it is "skeptical of dominant legal theories supporting hiearchy, neutrality, objectivity, color blindness, meritocracy, ahistoricism, and single axis analysis," it draws from several different theoretical foundations such as liberalism, feminism, law and society, Marxism, postmodernism, pragmatism, and cultural nationalism.
We are beginning to flip stock arguments. Until now, the following argument has been determinative: the First Amendment condemns that; therefore it is wrong. We are raising the posibility that the correct argument may sometimes be: the First Amednemtn condmens that, therefore the First Amendment (or theeay we understand it) is wrong. Although it is often said that free speech is the best protector of equality, perhaps equality is a precondition of effective speech, atleast in the grand, dialogic sense. We can now take statements such as "The campus ought to be a bastion of free speech," and render them as "The campus ought to be a bastion of equal, respectful treatment." Or, finally, from the old saw "The cure is more speech." why not, "the cure is more equality."
Richard Delgado
Harvard Civil Rights/Civil Liberties Law Review
Racial insults are undeserving of first amendment protection because the perpetrator’s intention is not to discover truth or initiate dialogue but to injure the victim.
Charles Lawrence
Duke Law Journal
[T]he law's failure to provide recourse to persons who are demeaned by the hate messages is in effect second injury to that person. The second injury is the pain of knowing that the government provides no remedey, and offers no recognition of the dehumanizing experience that the victims of hare propaganda are subjected to. The government's denial of prsonhood by denying legal recourse may be even more painful than the initial act of hatred. One can dismiss the hate group as an organization of marginal people, but the state is the official embodiment ofthe society we live in."
Mari Matsuda
