When CBS silenced Don Imus last Thursday by terminating his program under the enormous public outcry led by self-appointed racial-decency czars Al Sharpton and Jesse Jackson (about whom more later), it was not good for free speech or for racial and gender harmony. Nor was it good for the already low level of public discourse to which our culture and media have fallen prey.
While growing up on the streets and alleys of the Bensonhurst section of Brooklyn, in a neighborhood populated about half by Jews and half by Italian Catholics, I came to appreciate the stings but also the benefits of what has since come to be called “hate speech.” The stings were obvious; it did not feel great being called a “dirty Jew” by the kids on my block. But there were also benefits to it. By listening to which of the kids called me names, I knew which ones to stay away from. Hate speech, in other words, had what, in my later legal career, would be called “redeeming social value.” Besides telling me which kids hated me merely for my religion, I also sensed that by getting their rocks off calling me names, the hostile kids were perhaps less prone to punching me. So I learned never to complain to Vinnie Calladrushio’s mother that he was calling me names; it was not in my long-term interest to silence the expression of what he felt toward me.
When I studied and then practiced law, these early lessons in the social benefits of hate speech were confirmed. I was pleased that the Supreme Court appeared to agree with me (or vice-versa, I suppose). In 1985, a Circuit Court of Appeals declared unconstitutional a municipal anti-pornography ordinance in Indianapolis that allowed “victims” of the sale of porn to sue the purveyors for violating women’s “civil rights” by demeaning them. Supporters of the ordinance claimed that pornography, freely on sale all around us, resulted in the “subordination” of women and in turning women into “sex objects.” The Court of Appeals had declared the ordinance in violation of the First Amendment, because it sought to promote a “preferred viewpoint” on the issue of relations between the sexes, favoring only “speech treating women in the approved way.” Not a single justice of the Supreme Court dissented when it affirmed the lower court decision.
The high court was similarly unanimous in 1988 when it threw out a $150,000 jury verdict against Hustler Magazine and Larry Flynt. The über-holy Reverend Jerry Falwell sued the magazine and Flynt, its (in)famous publisher, for suggesting, in a vicious parody, that the good reverend lost his virginity in a drunken orgy with his mother in an outhouse. The Supreme Court pointed out that even acidic speech such as the Falwell parody had redeeming social value, pointing to parody’s long history in the US:
Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. [Thomas]Nast's castigation of the Tweed Ring, Walt McDougall's characterization of presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.
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.