The Conflicting Promises of Speech and Equality in America

This article originally appeared in the Huffington Post on Nov. 17, 2015.

By Laura Beth Nielsen

As college students at Yale, University of Missouri, the University of Chicago, and all around the country are making the case for equality on college campuses in recent days, these demands for America to fulfill one of its most fundamental promises -- that of equality -- are being met with charges that the students (and their faculty supporters) are intolerant bullies, unpatriotic and ignorant of America's founding principles, or children who seek to be "coddled."

Nothing could be further from the truth.

These students are bravely demanding to be heard about what it is like to be a member of a subordinated group on a college campus. Unfortunately, the free speech debate often occurs without hearing what subordination through speech feels like. Instead, we devolve into a shouting match about who is "silencing" whom.

For decades, First Amendment scholars have recognized that the dual goals of speech and equality are at odds with each other in the United States. Allowing hate speech (as has been our Constitutional tradition) makes the Constitutional goal of equality all the more difficult to achieve. It's a balancing act in which the Supreme Court allows hate speech until it becomes a targeted threat of violence.

That balancing act, and the current public debate skips right over questions about what it is like to simply be in public as a member of a subordinated group. Part of understanding how speech often is used to perpetuate inequality and subordination is listening -- really listening -- to the experiences of other people who are not like us.

This week a University of Missouri professor said that she had been "called the N-word too many times to count." And, while critiqued for how it was edited, hollabacknyc.org's undercover video demonstrated how different simply walking down the street can be for women than for men. Other social activists with video cameras have demonstrated similar experiences for people of different races and religions.

My research on racist and sexist harassment in public places analyzes the frequency and impact of these kinds of interactions (called micro-aggressions or "everyday" racism and sexism) in public places on target groups. It demonstrates that non-target groups dramatically underestimate the frequency and pervasiveness of harassment, even though it often occurs in public.

For example, 38 percent of the African-American people I interviewed reported hearing racist comments directed toward them, in public places, "every day" whereas only 8 percent of white interviewees guessed that African Americans hear comments like these "every day."

Similar patterns hold true for sexually harassing speech in public places. Over 60 percent of women reported hearing offensive or sexually suggestive comments in public places "every day" or "often" whereas only 14 percent of men estimated that women hear comments like this at that rate.

The First Amendment has always worked better for those with privilege. We "celebrate" difficult cases when it has been used to protect the speech we hate like Nazi hate speech and KKK cross-burnings. Considered another way, what we see is our laws protecting the speech of those who violently demand the status quo of white domination over people of color.

To be sure, balancing speech and equality is a difficult task. To have any hope of achieving the proper balance, Americans must first try to listen to each other so that we can understand the harms of hate speech. While "just speech," racist hate speech does the work of subordination and domination every day in public places by making salient the racist fissures undergirded by the violent past of slavery, lynching, and Jim Crow.

Instead of screaming about who is or is not being allowed to speak, America needs to take the time to listen to those who are bravely advocating for equality on college campuses. We are simply asking that America live up to a promise it made to white women and people of color long ago but has not yet fulfilled.

- Laura Beth Nielsen is Professor of Sociology and Director of Legal Studies, Northwestern University, and research professor at the American Bar Foundation. She is the author of License to Harass: Law, Hierarchy and Offensive Public Speech and is part of The OpEd Project's Public Voices Fellowship at NU.