Making Racism Illegal

At the heart of the debate on the racist and sexist comments of Don Imus is the question: Where do you draw the line between acceptable free speech and unacceptable, illegal hate speech?

Before we can deal with that question, there is another: Is it even possible to legislate love and morality? The answer to this has usually been a resounding no. People’s hearts cannot be changed by the passage of laws, for no laws on matters of the heart can be enforced. So the reasoning goes. But a close look at American history shows that this widely accepted reasoning is simply untrue.

America legislated matters of the heart time and time again. Countless laws were passed to institute hatred and hostility where none existed. Our history is crystal clear: for the first five decades and more of slavery in North America there was no instinctual feeling of hostility between Africans and Europeans. Quite the contrary was the case. The two populations united so readily that by the 1670s slave owners feared they might lose slaves as a class. The children of black and white parents, so-called mulattoes, were far less likely to submit to slave culture, far more likely to rebel. It was as if calves and colts would simply walk away from the farm, an investment become lost because it gains a mind of its own.

The slave laws, and the later Jim Crow laws, were instituted to create systematic hostility between Europeans and Africans where none had existed before. They legislated that Europeans should hate Africans – and that they should love only Europeans like themselves. Social engineering at its worst.

So yes, you can idea legislate love and hate. But how to fix the Imus case? Simple. We make racism illegal, but we preserve First Amendment rights. If Don Imus wishes to use racist language that is his right under the First Amendment. But he does not have the right to jeopardize the community by subjecting the public to them. Free speech is a privilege and a responsibility. When speech becomes a danger to the public good then it is legally banned – the old “yelling fire in a crowded theater” analogy.

People who like to drink alcohol have the legal right to drink it; they do not have the right to drink it to excess and drive on public roads. People who hate have the legal right to speak racist statements; they do not have the to do so over public airwaves, for this, to mix analogies, would be yelling fire in a dry tinderbox.