The lib­erty to speak badly about race

Free­dom gives haters the room to reap con­tempt of so­ci­ety

The Washington Times Weekly - - Front Page - By Andrew P. Napoli­tano Andrew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is an an­a­lyst for the Fox News Chan­nel. He has writ­ten seven books on the U.S. Con­sti­tu­tion.

Cliven Bundy should be happy for the pub­lic rev­e­la­tion of the pri­vate com­ments of fel­low racist Don­ald Ster­ling. The lat­ter has re­placed the for­mer as the per­son Amer­i­cans most love to hate. These two big­ots re­cently spewed racial ha­tred: Mr. Bundy sug­gest­ing that blacks might do well to con­sider slav­ery over free­dom, and Mr. Ster­ling of­fer­ing dis­jointed com­ments that re­veal his ev­i­dent be­liefs in white supremacy.

Mr. Bundy is a Ne­vada rancher who be­came a hero to the right for stand­ing up to the heavy hand of federal sup­pres­sion of property rights in the West. He and his fam­ily had been graz­ing their cat­tle on land they thought was theirs or the state of Ne­vada’s for more than 100 years, when along came the federal Bureau of Land Man­age­ment, which claimed the land and as­sessed Mr. Bundy for his use of it. A federal judge up­held the claims and the mil­lion-dol­lar as­sess­ment, yet Mr. Bundy re­fused to pay. In­stead of fil­ing the judg­ment in a court­house, as you and I would do if we had a judg­ment against Mr. Bundy, the feds showed up with 200 cam­ou­flage­clad, ma­chine-gun-bear­ing federal agents de­ter­mined to steal his cat­tle.

Soon, thou­sands of Ne­vadans showed up to sup­port Mr. Bundy, where­upon the feds en­acted a “free-speech zone.” They or­dered the pro­test­ers ei­ther to dis­perse, or to en­ter the zone and protest there. The zone was a 25-square-yard patch of earth in the Ne­vada desert, three miles from the site of the Bundy-vs.-govern­ment con­fronta­tion.

Mr. Ster­ling is a bil­lion­aire who owns the Los Angeles Clip­pers of the Na­tional Bas­ket­ball As­so­ci­a­tion and was a hero to the left for his pub­lic sup­port of lib­eral causes. He has given gen­er­ously to the Los Angeles chap­ter of the NAACP and to the Demo­cratic Party in Cal­i­for­nia. He is white, mar­ried and ap­par­ently en­joys the com­pany of a bira­cial girl­friend. Record­ings of his sev­eral wild, weird, dis­jointed rants di­rected to the girl­friend and ut­tered in the pri­vacy of his own home have been played pub­licly. In them, Mr. Ster­ling di­rects his girl­friend not to at­tend Clip­per games in the com­pany of her black friends.

Both of these men used hate­ful and hurt­ful words that were an­i­mated by truly con­demnable at­ti­tudes about race. No moral per­son cred­i­bly could sug­gest that slav­ery is prefer­able to free­dom, and no moral per­son cred­i­bly could sug­gest that whites are su­pe­rior to blacks in any re­spect. Those were at­ti­tudes ad­vanced by an­te­bel­lum slave­own­ers and 20th-century sup­port­ers of laws that used the ma­chin­ery of govern­ment to harm blacks dur­ing the 100 years fol­low­ing the Civil War.

I would not in­vite Mr. Bundy or Mr. Ster­ling into my home, nor would I be­friend them, but I will de­fend with zeal and dili­gence their con­sti­tu­tional free­doms.

All ra­tio­nal people, un­der­stand­ing the color­blind­ness of the nat­u­ral law, have a moral obli­ga­tion — but not a le­gal one — pub­licly to treat per­sons of dif­fer­ent races with equal dig­nity and re­spect. I can morally pre­fer a friend or a mate who is of my race, but I can­not morally hate a po­ten­tial friend or mate just be­cause the per­son is not of my race. I do not know what is in their hearts, but Mr. Bundy and Mr. Ster­ling are ap­par­ently haters.

What to do with them be­cause of their speech? Noth­ing. I mean noth­ing. Racially hate­ful speech is pro­tected from govern­ment in­ter­fer­ence by the First Amend­ment, which largely was writ­ten to pro­tect hate­ful speech. Nei­ther Mr. Bundy nor Mr. Ster­ling has been ac­cused in these in­stances of racially mo­ti­vated con­duct — just speech an­i­mated by ha­tred.

In the Bundy case, the feds did sup­press speech by keep­ing it three miles away from them. Free speech, free as­sem­bly and the right to pe­ti­tion the govern­ment would be­come empty and mean­ing­less if the gov­ern­men­tal tar­gets of the speech and as­sem­bly could not hear it. The First Amend­ment will con­done out­law­ing the use of a bull­horn by pro­test­ers in front of a hospi­tal at 3 o’clock in the morn­ing, but it will not con­done free-speech zones for the sake of govern­ment con­ve­nience. The en­tire United States of Amer­ica is a freespeech zone.

In the Ster­ling case, is it fair to pun­ish some­one for speech ut­tered in the pri­vacy of his home? It would be exquisitely un­fair for the govern­ment to do so, but the NBA is not the govern­ment. When Mr. Ster­ling bought his bas­ket­ball team, he agreed to ac­cept pun­ish­ment for con­duct un­be­com­ing a team owner or con­duct detri­men­tal to the sport. Is speech con­duct? For con­sti­tu­tional pur­poses, it is not; the Con­sti­tu­tion does not res­train the NBA. It is free to pull the trig­ger of pun­ish­ment to which Mr. Ster­ling con­sented. But it needn’t do so. Hate­ful and hurt­ful words have nat­u­ral and prob­a­ble con­se­quences where the people are free to counter them. The govern­ment has no busi­ness cleans­ing the pub­lic mar­ket­place of hate­ful ideas. The most ef­fec­tive equal­izer for ha­tred is the free mar­ket. It will rem­edy Mr. Ster­ling’s ha­tred far more ef­fec­tively than the NBA can. As ad­ver­tis­ers and spon­sors and fans desert Ster­ling-owned prop­er­ties, he will be forced to sell them, lest his fi­nan­cial losses be­come cat­a­strophic. The free mar­ket has re­moved Mr. Bundy from the pub­lic stage al­to­gether.

Don’t hold your breath, though, wait­ing for the forces of free­dom to nul­lify ha­tred. Soon the forces of dark­ness will at­tempt to do so as cre­ative prose­cu­tors and hun­gry lit­i­ga­tors bring the govern­ment into the fray. I hope they stay home and fol­low the nat­u­ral-law prin­ci­ple of sub­sidiar­ity, which man­dates that pub­lic prob­lems be solved us­ing the min­i­mum force nec­es­sary, not the max­i­mum force pos­si­ble — and no force at all where peace­ful mea­sures are just as ef­fec­tive.

I would not in­vite Mr. Bundy or Mr. Ster­ling into my home, nor would I be­friend them, but I will de­fend with zeal and dili­gence their con­sti­tu­tional free­doms.



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