"Tangentially discouraging"

[Volokh, Eugene]

        1)  I agree entirely that antidiscrimination law, as written, is not
merely a veiled attempt by the legislature to regulate speech.  Neither was
the Espionage Act (cf. Schenck and Debs); neither were breach-of-the-peace
laws (cf. Cohen v. California and Cantwell v. Connecticut); neither were the
torts of intentional infliction of emotional distress and the torts of
intentional interferes with business relations merely veiled attempts by the
courts to regulate that first recognized them (cf. Hustler and Claiborne).
Would we call Schenck, Debs, Cohen, Cantwell, Hustler, and Claiborne
instances of the law "tangentially discouraging" speech?  If the answer is
"no," then we can't say that this case involves the law "tangentially
discouraging" speech, either.  Or am I missing some important distinction
here?

        2)  I confess I am still puzzled by the claim that expressions of
racist ideology, even really nasty ones (even assuming that this case
involves such an expression), are anything but core political speech.
Assuming "core political speech" is defined to include at least "speech that
conveys information, ideas, attitudes, or beliefs that may affect our
political decisions about election or rejection of a candidate, or the
enactment or rejection of various possible laws," then it clearly includes
statements that "black folks are a bunch of monkeys who [belong] in a
jungle."  (Here I borrow Hank's characterization of one possible
interpretation of the display in this case.)  Obviously such a statement is
extremely relevant to a variety of modern political debates on racial
matters.

        Perhaps Hank is suggesting that what makes this nonpolitical speech
is that it is a "virulently racist attempt to break anti-discrimination laws
through speech."  What part of this characterization, though, would make the
speech nonpolitical?  Not that it's "racist"; surely a racist motivation or
racist content doesn't make a political statement any less political.  Nor
can it be that it's "virulently racist," perhaps in the sense of "racist in
a highly offensive way" -- Hustler, Cohen, Cantwell, etc. tell us that
political speech doesn't become less protected simply because it is said in
a highly offensive way.  Nor can it be that it is an "attempt to break
[general] laws through speech" -- as the examples above show, Schenck, Debs,
Cohen, Cantwell, Hustler, and Claiborne all involved speech that broke
general laws aimed at a wide range of conduct, and surely that doesn't make
the speech any less political.  Nor, I think, can it be that it is an
"attempt to break anti-discrimination laws through speech" -- speech isn't
made any less political by the fact that it violates antidiscrimination laws
as opposed to draft laws, breach of the peace laws, or tort law.

        So I suppose I'm left again with the questions:  What definition of
"political speech" could one possible use to reach the result that racist
speech, such as that which we're assuming for the purposes of argument was
intended or understood here, is somehow anything other than "core political
speech"?  And what other speech might, as a consequence of this definition,
also lose much of its constitutional protection?

> -----Original Message-----
> From: Chambers Jr, Henry L. [SMTP:ChambersH at MISSOURI.EDU]
> Sent: Monday, March 20, 2000 7:30 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: "Tangentially discouraging"
>
> Eugene wrote:
>
>
> >        Well, I appreciate Hank's candor in admitting that he's arguing
> for
> >lowering -- in at least some measure -- the protection offered all speech
> (I >assume this is what he means by saying that he supports "non-core
> >protection" as opposed to "core protection").
>
> To be clear, if we cannot distinguish virulently racist attempts break
> anti-discrimination laws through speech from core political speech then I
> guess it all must be regulated the same. (Note that I am not opining on
> what
> was in the Boston bar owner's mind).  I simply suggest that you have boxed
> yourself into a corner by trying to treat nearly all speech as core
> political speech under the First Amendment.  Equal treatment of most types
> of speech/conduct might suggest that absolutist protection given to core
> political speech has been misguided.  Remember that just because something
> is near the core of an Amendment does not mean that it cannot be regulated
> at all.  I do not advocate going down that path, I just suggest that that
> is
> the path your arguments force me to take.
>
>
>
> Eugene also wrote:
>
> >But I'm not sure I can agree with his dismissal of the speech restriction
> here >as "tangentially discouraging speech."
>
> When I talk about the tangential discouragement of speech, that is
> shorthand
> for suggesting that a law involved is not merely a veiled attempt to
> regulate speech.  I think the anti-discrimination laws tangentially
> discourage speech.
>
> -Hank Chambers
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