All Commentary
Tuesday, May 1, 2001

Free Speech and the Politics of Identity by David A. J. Richards

A Toxic Mound of Antilibertarian Thought

Oxford University Press • 2000 • $65.00 • 296 pages

It’s no surprise that free speech is under siege today—those in power always try to suppress criticism. What is surprising is that the attackers now come from the traditional defenders of free speech, mainstream academics. Most colleges have “politically correct” speech codes that threaten serious penalties for speech that is “offensive” with respect to race, sex, or sexual orientation. How did this happen? Feminist, gay, and minority radicals claim that because of the historical abuse of their groups, speech offensive to them (including pornography) silences them and excludes them from participating in society and enjoying its benefits as full equals. This speech must be suppressed.

Although many oppose laws against “offensive” speech, David A. J. Richards, professor of law at New York University, is a welcome addition because he is a left-leaning academic and gay advocate. In Free Speech and the Politics of Identity he accepts the premises of feminist, gay, and minority radicals; and he is one of them, so his argument against speech restrictions cannot be dismissed as self-serving. Moreover, he bases his defense of free speech on a broad freedom of conscience that will appeal to advocates of liberty. Curiously, Richards also supports campaign-finance limits and laws both forbidding private discrimination against and granting legal preferences to his favored groups. Thus he offers something for everyone, but is unlikely to be entirely convincing to anyone.

Richards defends free speech on a principle of toleration stemming from the rights to “conscience” and “equal respect for persons.” Suppression of “offensive” speech reinforces stereotypes and harms those offended because it “disempowers” them “in the exercise of reasonable discourse that best challenges” offending speech. Permitting offensive speech also allows response, which, because it is “independent of the state, gives personal voice a moral authority it could not otherwise have.”

This is a claim that advocates of speech codes reject. People in power never think they gain by tolerating speech that offends them. Indeed, official condemnation of a viewpoint discredits it in most people’s eyes. Champions of political correctness openly expect speech codes to stigmatize speech they dislike. Richards’s claim also seems to clash with his support for group preferences, which stigmatize their supposed beneficiaries.

Richards also favors campaign-finance limits because they promote “equality,” which he considers a valid First Amendment value. He castigates the Supreme Court for holding otherwise when striking down some campaign-finance laws in Buckley v. Valeo. The politically correct will immediately point out that the purpose of “offensive speech” codes is to promote equality and thus charge Richards with being inconsistent.

Opponents of campaign-finance limits should agree and then note that if equality trumps free speech, free speech may be crippled. Richards casually glides over line-drawing issues in campaign-finance laws, but these issues are not trivial. The editors of the New York Times speak loudly in the marketplace of ideas. Campaign-finance laws prevent candidates they disfavor from speaking just as loudly. Moreover, political incumbents, who already enjoy greater recognition than most challengers, manipulate campaign-finance laws to entrench themselves further. Thus congressmen invade the public treasury to give themselves the franking privilege while restricting challengers in using even private funds to compete. Even in theory campaign-finance laws cannot achieve equality of voice, and in practice their effect is often perverse.

The same objection applies to “offensive speech” codes. The politically correct claim that these codes protect the weak, but rules are imposed only by those with the power to impose rules. Richards concedes this point in passing but never really grapples with it, probably because it would explode his defense of campaign-finance laws. And although he opposes “offensive speech” laws, which as yet hardly exist, he says nothing against campus “offensive speech” codes, which are ubiquitous. Is this academic nimbyism—favoring free speech only if it’s “not in my back yard”? Neither does Richards challenge laws that forbid private expressive organizations to define their own membership—as in the Boy Scouts’ excluding avowed gays as scout leaders. And although he criticizes discrimination against minorities, women, and gays, he never questions the gross discrimination in academia against political conservatives, libertarians, and traditionally religious people.

Richards’s book is essentially an article on free speech padded to book length by myriad repetitions and long digressions on race, gender, and homosexuality—with frequent footnote citations to his own prior work. Although he eschews the obscure jargon employed by many left intellectuals, his prose is turgid and graceless, bloated with innumerable reiterations of specialized phrases. In sum, Free Speech and the Politics of Identity offers a precious nugget—a strong, cogent critique of “offensive speech” laws—embedded in a toxic mound of antilibertarian thought.

George Dent is Schott-van den Eynden Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio.