Back in 1993, W.E.B. Du Bois Professor of the Humanities and chair of the Afro-American Studies Department at Harvard University, Henry Louis Gates Jr. identified a glaring contradiction at the heart of the rising movement to ban hate speech. On the one hand, the Critical Race Theorists who advocated curtailment of speech offensive to minorities insisted that individual instances of hate speech are never, as the law professor Charles Lawrence put it, “the isolated, unpopular speech of a dissident few.” Rather, they were “manifestations of a ubiquitous and deeply ingrained cultural belief system, an American way of life.”
Hate speech was so dangerous, in other words, because it plucked chords that were so deeply ingrained in the culture as to be structural parts of everyday life and thought for large numbers of Americans—perhaps even a majority. Yet the “hidden foundation” of the movement was of course “implicit confidence in the anti-racist consensus.” As Gates points out, “Why would you entrust authority with enlarged powers of regulating the speech of unpopular minorities unless you were confident that unpopular minorities would be racists, not blacks?”
The contradiction that Gates exposed would have been fatal to any movement that stood or fell on the basis of whether it made defensible claims able to survive reasoned scrutiny. Racism was either pervasive and persistent, in which case one would only be able to muster a popular majority in support of measures to suppress the targets of racism rather than its bearers, or else racism was unpopular and dissident—in which case the argument for suppressing it, which rested on the claim of its pervasiveness and persistence, would be weakened to the point of inanition.
But Gates’ essay would go on to anticipate, remarkably, how and why his quite reasonable critique might not have any impact at all on the growing movement to pit civil liberties and civil rights against one another. For beyond the specific push to suppress speech, Critical Race Theory elaborated, as Gates put it, “an encompassing vision of state and civil society”—one that found its ultimate motive and sanction not within the protocols of legal scholarship or reasoned argument, but rather within the premises of the recovery movement and “the seductive vision of the therapeutic state.”
The therapeutic state that the critical legal theorists advocated would aid subordinated people who found themselves lacking the words to “name the injury” inherent in hate speech, and provide them with legal instruments to seek redress for the hidden injuries that were being inflicted on them. Gates quotes the legal scholar Mari Matsuda lamenting that “the government’s denial of personhood through its denial of legal recourse may be even more painful than the initial act of hatred,” and goes on to note that “what this grievance presupposes is that the state is there, in loco parentis, to confer personhood in the first place.” This was more than a politics, as Gates earlier declared, which seeks to “enlist rather than resist the state.” It was a politics that posited an entirely new vision of the state as both guarantor and repository of a claim to equal regard—a concept that marked a radical break with prior American legal norms and the Constitutional notion of individual rights.
The radical break that Gates gestured toward would mark the birth of the hypertrophied identity politics of 2017. As Gates diagnosed our time from back then: “Still, perhaps the widespread skepticism about any real divide between public and private made it inevitable that the recovery movement would translate into a politics, and that this politics would center on a vocabulary of trauma and abuse, one in which their verbal and physical varieties are seen as equivalent. Perhaps it was inevitable that the Citizen at the center of classical Enlightenment political theory would be replaced by the Infant at the center of modern depth psychology and its popular therapeutic variants. The inner child may hurt and grieve, as we have been advised; is it also to vote?”
Gates’s long essay, “War of Words: Critical Race Theory and the First Amendment,” was the centerpiece of a collection of writings on the challenge to free speech posed by academic feminists and anti-racists titled Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. The volume is one of many books from the 1990s that cast anticipatory light on the strange crossroad at which we find ourselves in 2018.
What’s especially fascinating about the book from the perspective of now is what the defenders of free speech in 1993 felt both permitted and compelled to say that their contemporary analogs hesitate to say. Like many contemporary defenders of free speech, the authors emphasize that the debate is strictly over means and not ends. All of the authors were committed lifelong partisans and veterans of the civil rights and feminist movements. Unlike contemporary defenders of free speech, the book’s forthright defense of civil liberties entailed a frontal assault on the illiberalism of those who claimed to advance the interests of women and minorities by prohibiting speech.
Ira Glasser, the executive director of the American Civil Liberties Union from 1978 to 2001, compares restrictions on speech to “poison gas” that invariably redounds to the injury of the minorities who venture it. His introductory chapter in Speaking of Race, Speaking of Sex includes a long peroration in which he cites the enormous disparities in education, health, income, wealth, and other indices of well-being that obtained between black and white Americans in 1993 and a call for strenuous exertions on behalf of black Americans to close those disparities.
“We are going to have to create a constituency that first comes to recognize these problems and then comes to find that they are intolerable,” Glasser writes. “We have to create what Garrison calls a ‘tremendous excitement.’ ” He goes on to ask, “Can anyone seriously believe that we can once again cause a tremendous moral excitement in this country, recapture a sense of moral urgency, create a constituency for change and actually do something about racially stratified social and economic inequities by focusing on racial epithets?” Glasser closes by quoting another contributor to the volume, the law professor Donald Lively, who noted that the agenda to restrict racist speech “seems framed largely from the tenured faculty positions and academic halls where intellectual output may be more the grist for publishing mills than an engaged concern with real-world disadvantages. Given its limited objectives and tortuous theory, the strategy seems better structured to impress and provoke colleagues than to effect real change. … ‘Racist-speech management,’ he [Lively] concludes, ‘effectively conspires with the established order by demanding cosmetic change rather than a reshuffling the cards of power.’”
Contrast this forthright confrontation with a contemporary defense of free speech by the Harvard English professor Jill Lepore in a recent issue of The New Yorker. Like Glasser, Lepore reviews the essential role that an expansive reading of the First Amendment played in laying the groundwork for the triumphs of the civil rights movement of 1950s and ’60s. In her thumbnail history of the illiberal turn against free speech on the left, Lepore mentions the influence of Herbert Marcuse’s notion of “repressive tolerance.” But she does not mention Critical Race Theory at all. Perhaps she chose to avoid an outright confrontation that she judged she could no longer hope to win in 2017.
Glasser’s contempt for the distraction that the fight against hate speech represented and his crusading faith in yet another round of moral exhortation surely fell on many deaf ears even back then. And indeed, there is something a little naive about his call, in 1993, for what Derrick Bell, theorist of the pervasiveness and persistence of racism, called “yet another round of ‘We Shall Overcome’ ” as the necessary and sufficient prelude to tackling the persistent inequalities afflicting blacks in America. The First Amendment may have been an absolute precondition for the attainments of the civil-rights movement in its heroic phase, as Gates notes, (ventriloquizing the critics who saw the limits of the political and civil equality to effect real change in the condition of blacks), “but what have you done for me lately?”
Gates goes on to argue that the precondition for black progress was increasingly contingent on building and learning from an empirical account of poverty that “can take on a life of its own, to the point where removing the conditions that caused it can do little to alleviate it,” citing the sociological work of Douglas Massey, William Julius Wilson, and Gary Orfield, and deploring the greater salience of the “totalizing theory of Catharine MacKinnon” in the work of the Critical Race Theorists. Rather than “forging new and subtler modes of socioeconomic analysis,” he writes “we have finessed the gap between rhetoric and reality by coming up with new and subtler definitions of the word racism.”
Here Gates guesses at the shape that future racial activism emerging from academia would increasingly come to take. Rather than a renewed bid to avail themselves of First Amendment rights to speech in order to create a “tremendous moral excitement” around the cause of black amelioration, the antiracists took to elaborating ever more expansive definitions of racism.
Gates was writing soon after the coinage of concepts such as structural and institutional racism, “that can operate in the absence of actual racists,” as he put it. He does not quite grasp how right he was about the direction to which racial activism would turn during the second term of the first black president, who was the realization of one vision of the redemptive promise of America, and therefore a dramatization of its limitations. A black president appeared to be powerless to shrink racial disparities in income, wealth, health, or incarceration rates—or even to bring a symbolic end to the cultural or legal idea of blacks as a permanently injured and disadvantaged class in America.
“By progressively redefining our terms, we could always say of the economic gap between black and white America: The problem is still racism … and, by stipulation, it would be true,” Gates wrote. And he was, of course, writing before the invention of terms such as “colorblind racism,” “microaggression,” and “white privilege” that would bring to fruition the tendencies that Gates lamented in 1993, of creating an elaborate system of racial determinism from which none could escape, in which all were either victims or perpetrators, and individual moral agency counted for little.
Gates discerned with arresting clarity the latent and implicit content of the hate-speech movement that would metastasize into the identity politics of the present. He goes on to note that the jointly written manifesto of the Critical Race Theory movement calls for a “fight for a Constitutional community where ‘freedom’ does not implicate a right to degrade and humiliate another human being,” (rejoining that such “sweepingly utopian rhetoric” would also “signal a regime so heavily policed as to be inconsistent with democracy”). He assumes that his readers will recognize this practical and moral constraint on such a program, and does not anticipate a new generation educated by Critical Race Theorists and their epigones who will try to execute it in earnest.
In 2017, the avatar of a politics of white resentment who openly threatens the press and calls for the suppression of dissenting speech holds the presidency. Meanwhile, various sub-state actors (journalists, activists, intellectuals, social movements, social-media mobs) who purport to advance the interests of women and minorities are promulgating expansive doctrines of hate and harassment through online vigilante campaigns intended to subvert from within and hollow out liberal commitments to freedom of speech and due process. The campaigns seek to enforce ever-ramifying definitions of right conduct and belief against an ever-multiplying litany of sins against groups, some of whom scarcely have any existence independent of the imperative to redefine vast swaths of the population as bigots. No sooner have the transgendered made the list of protected groups than the agendered and the genderqueer have added themselves to the ever-proliferating list of sexual minorities demanding our recognition and protection.
Rather than regard this as a reductio ad absurdum of the politics of identity, in which all are compelled to collaborate with the frivolous whims and pathologies of every moral entrepreneur that has concocted a claim of victimization, the intellectual class moral arbiters, and even legislators, solemnly sign on to advance these causes, seemingly hours or days after a new acronym has been coined on social media. Novel forms of identity proliferate for the purpose of producing visible bigots and compelling public deference to demands for recognition, against which liberals have no immunological defense.
No part of Gates’ 1993 essay rings as clearly today as when the scholar quotes the Critical Race Theorist Charles Lawrence, who in a reflective movement airs a concern that “I fear that by framing the debate as we have—as one in which the liberty of free speech is in conflict with the elimination of racism—we have advanced the cause of racial oppression and placed the bigot on the moral high ground, fanning the rising flames of racism.” Who now seriously doubts that Lawrence spoke both correctly of his own time, and prophetically of ours?
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