Racist Speech Outsider Jurisprudence and the Meaning of America
Almost thirty years ago, Harry Kalven, Jr., one of the leading legal scholars of the twentieth century, wrote a book in which he attempted to analyze the impact of changing race relations and the civil rights movement on first amendment law. 1 In the book he observed that African Americans did not often resort to the courts to combat racist speech. 2 He was "tempted to say that it will be a sign that the Negro problem has basically been solved when the Negro begins to worry about group-libel protection." 3 Times have changed (although few would claim that the plight of African Americans has basically been solved). 4 African Americans are deeply concerned with the problem of racist speech in American society, and they are not alone. Many have urged that punitive sanctions be imposed against the perpetrators of such speech. 5 Perhaps the most persuasive writings have come from practitioners of outsider jurisprudence, 6 a thriving school of thought in American law schools. 7 In the area of race relations law, 8 outsider jurisprudence frequently builds from the lived experience of people of color. 9 It utilizes particularistic analysis and is hostile toward false pretensions of universality and neutrality. 10 Its general orientation is pragmatic, 11 and its mission is to combat racism and injustice. From this perspective, rules affecting race relations depend for their justification on the extent to which they combat the racism present in the existing set of power relations; certainly, if they entrench ...