The Supreme Court went on to explain why even verbal and pictorial attacks that exploit racial and other stereotypes by “caricaturing” their victims—and that are intended to cause injury to feelings, sensibilities, and pride—must be protected for their social value:
Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events—an exploration often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters."
More recently, the Supreme Court affirmed twice—in 1992 (R.A.V. v. City of St. Paul) and again in 2003 (Virginia v. Black)—that cross-burning was a form of protected speech when it was not coupled with actual threats of violence, but merely acted as an expression of racial hatred. Expressing such hatred, noted the Court, is a constitutionally protected activity.
It was with all of this in mind that I undertook in the late 1990s to co-author a book attacking speech and “harassment” codes on college campuses. In The Shadow University: The Betrayal of Liberty on America’s Campuses, Professor Alan Charles Kors and I pointed out that under the guise of preventing “harassment” of students from what college administrators demeaningly called “historically disadvantaged groups,” over 90% of American colleges and universities had adopted speech restrictions to “protect” such students from being “offended” by mere words and ideas.
While I was writing this book, I had two experiences that sealed my view that “hate speech” performed an extremely valuable social function and fully merited legal – as well as broader societal – protection. As I was working on the hate-speech chapter of my book, I gave a lecture on free speech to a group of Harvard Law School students. (I found discussions with college students, in contrast with the administrators who claimed to want to “protect” students from “offense,” to be helpful in focusing and testing my thinking.) After I finished telling the students why I opposed campus “harassment” codes banning offensive speech (and Harvard had, and continues to have, among the most stringent such codes in the country), a white first-year law student stood up and posed a question that I’ve heard many times since the publication of my book: “Mr. Silverglate,” he intoned, winding up his pitch, “I’m not saying you’re a bigot. But doesn’t your view on hate speech give aid and comfort to bigots?” Just as I was about to respond, a third-year African-American student rose to his full height and addressed his white confrere in these words, more or less, that are burned into my memory: “I was born and raised in the South Bronx, where bullets flew by my bedroom window every week. I did well enough in school to attract the attention of an organization that gave me a scholarship to prep school. From there I went to Harvard College, where I did well enough to get into the Law School. I’m just a few months away from graduating. And do you really think that if someone were to call me a ‘nigger,’ I would be so upset as to pack up my stuff and leave to return to the South Bronx, rather than tough it out till graduation? Is that what you really think of me?”
