Racists in the United States have always been able to cloak their ideas in the First Amendment to the U.S. Constitution which governs freedom of speech. That our legal system not only shields racists but allows farmbelt Fuhrers like Gary Lauck to export hate around the world like nuclear waste can be confusing to anti-fascists in other countries. This article will explain some of the workings of the First Amendment, show how racists manipulate freedom of speech to commit terrorism in the U.S., and discuss how anti-racists can challenge fascist propaganda, individuals and organizations by using international human rights law.

Understanding the First Amendment

The United States has distinctive political principles and values that define its national identity. The First Amendment says that "Congress shall make no law...abridging the freedom of speech." The amendment was designed to insure that the debate on public issues is "uninhibited, robust and wide open." Those who believe absolutely in the First Amendment believe that racist ideas deserve as much protection as any other idea in a free democracy -- perhaps even more because of their odious content. Absolutists often quote Supreme Court jurist Oliver Wendell Holmes who declared that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." This "marketplace of ideas" approach is supposed to encourage the free exchange of ideas and a rational process by which listeners can choose the best ideas and ignore others.

Such interpretations are insufficiently conscious of the social reality of uneven power relationships between racists and their targets. Absolutists ignore the persistent inequality in the power of oppressed groups to communicate their ideas in the marketplace, just like Bill Gates can keep other companies from selling computer operating systems. In fact, the dominant group not only has the greater power to communicate their ideas, but they even have more credibility doing so. Inequities in racial power makes competition in the social marketplace purely hypothetical. There is no space not already occupied by the dominant white culture.

Manipulating the First Amendment

U.S. courts consistently fail to acknowledge that the purpose of racist speech is to continue the subordination of one people by another. This leads to a legalistic distinction between acts that constitute racial terrorism and the words and ideas that motivate the attackers. In our country, acts — assault, battery, vandalism, arson, murder, lynchings, physical harassment — are punishable under our court system. But words — like nigger — or symbols — such as Nazi swastikas or burning crosses -- are protected by the courts as acts of individual expression. To protect the status quo of white domination, our legal justice system first formally excluded African Americans from equality, and it now stands passively aside while private actors do the dirty work of legitimating social inequality and silencing victims.

U.S. courts have not always privileged white racists to express themselves at the expense of the safety of African Americans and other people of color. A pertinent Supreme Court case was decided in 1952 after two race riots in Illinois in which more than one hundred men, women and children were killed, forcing another 6,000 African Americans to flee the state. In that case, Beauharnais v. Illinois, the head of the White Circle League distributed a leaflet declaring that African Americans would terrorize white neighborhoods with "rapes, robberies, knives, guns and marijuana." The pamphleteer was convicted when the court decided that libelous statements aimed at groups of people, like those aimed at individuals, fall outside First Amendment protection. While it was certainly a victory for the anti-racist movement, this decision did not go far enough in banning the activities of racist individuals, largely because the government was not yet ready to outlaw its own racist policies. The Brown v. Board of Education school desegregation decision occurred two years later in 1954.

On the other hand, the current Supreme Court is dominated by the right wing. Its interpretations disconnect racial terrorism from the harm inflicted on victims. In 1992, the court decided in R.A.V. vs. St. Paul that a cross burned in the front yard of an African American family by white teenagers was a form of protected symbolic speech. This decision effectively trumped the family’s right to live in their home free from racial terrorism. Using the artificial distinction between speech and action, the Court decided that the act of burning a cross to intimidate a black family was equivalent to freedom of speech.

Fighting Human Wrongs with Human Rights

Anti-racists must lead the way in ensuring that our social vision of justice again triumphs over the cruder vision of equality limited by white supremacy. The government has a constitutional obligation to eliminate obstacles that prevent equal participation in society. Racial discrimination undermines a person’s or a group’s humanity. Racist speech, which not only silences its victims but denies them credibility in the eyes of the public at large, should be regulated.

Courts have often recognized that the right of free speech is not absolute. They have limited free speech when it becomes libel, incites a riot, threatens an elected official, or conspires to monopolize industries. Bans on cigarette advertising or liquor sales also narrow free speech. Anti-racists must become First Amendment realists who argue that individuals harmed by racist speech and symbols should be able to sue under defamation laws, intentional infliction of emotional distress laws, and/or assault and battery laws.

Moreover, racism is a violation of human rights, as stated in the International Convention on the Elimination of Racial Discrimination (CERD) ratified by the U.S. government in 1994. Article 2 of this international human rights treaty requires that governments "prohibit and bring to an end, by all appropriate means..., racial discrimination by any [private] person, group or organization." CERD goes further to say in Article 4 that "States will condemn all propaganda and organizations which are based on ideas or theories of superiority of one race...or which attempt to justify or promote racial hatred...and will adopt positive measures to eradicate such incitement to...discrimination."

The Race Convention is the only treaty that deals comprehensively with the elimination of all incidents of racial discrimination at the local, state and federal level, and supports positive actions by states, such as affirmative action, that are under attack in the United States. The treaty not only protects the right of a black family to buy a home, but also protects all African Americans from discrimination so that they may live in the neighborhood of their choice. In this way, the treaty not only protects individual rights, but also collective rights as a members of a group.

When ratifying the CERD treaty, the U.S. government decided to make a reservation to Article 4 saying that "suppression and criminalization of certain expression" such as racist speech and organizations is "inconsistent with existing First Amendment principles." Even while the ink was drying on the treaty, the government reaffirmed the constitutional shield for racists by declining to enforce this provision of the treaty.

The anti-racist movement now must build a human rights movement in the United States that will force the repeal of this crippling reservation to the Race Convention. We can use international human rights standards to develop effective laws to halt the worldwide spread of the dangerous virus of racism. By bringing human rights home, contagious boxes of hate literature will no longer be shipped around the world with labels saying, "Made in America."