Free Speech Aids Racial Justice. Activists Must Defend It.

Many legal protections are grouped under two related but distinct categories: civil liberties and civil rights. The former, which includes the right to freedom of speech, protects individuals from oppression. The latter prevents wrongful discrimination against groups based on race, religion, national origin, or other attributes.

On many issues, devotees of civil rights and civil liberties coalesce. Sometimes, however, they diverge.

Consider hate speech. Civil rights activists tend to argue (and have argued since at least the 1980s) that certain types of speech are so hurtful and offensive to racial minorities that they should be prohibited. In contrast, civil libertarians tend to maintain that virtually all speech, even the most deplorable, ought to be protected.

The result? Bitter disputes over speech codes on college campuses and beyond.

As an African American with strong, decades-long commitments to civil rights and civil liberties, I have been concerned to see racial justice activists in the African American community distance themselves from the most ardent champions of freedom of speech in recent years.

I have been concerned to see a notable paucity of African American students attending campus events focused on threats to civil liberties. And, in the broader world of civil liberties advocacy, I have watched with dismay as leading civil liberties organizations — such as the American Civil Liberties Union, the Foundation for Individual Rights and Expression, and the National Coalition Against Censorship — have struggled to attract the support of young African Americans, at least in part because those organizations are seen as defending the rights of racists.

This alienation between supporters of civil rights and civil liberties is harmful and avoidable. Reconciliation is essential and urgently needed.

Racial justice activists must realize that a speech-protective culture — a culture that defends even ugly expression — benefits minority communities that depend upon protest to make their presence and preferences seen and heard.

Especially at this moment, as state governments threaten to remove Black thinkers and artists from school curricula, the sentinels of racial justice must defend artistic, academic, and political liberties for all.

Many of the most important judicial rulings that extended civil liberties in the post-World War II era arose directly from protests seeking racial justice.

In the 1950s, when the state of Alabama sought to obtain the membership lists of the National Association for the Advancement of Colored People, lawyers persuaded the Supreme Court to protect NAACP members’ right to free association without fear of exposure and retaliation.

In the 1960s, when white supremacists arbitrarily denied Black civil rights activists the permission to hold rallies, lawyers persuaded the Supreme Court to protect the right to protest, requiring officials to issue clear, objective, uniform regulations, applicable to all on an equal basis.

Student-led activism also contributed to much of this liberty-protective jurisprudence.

In 1960, when Alabama State College expelled Black students participating in a sit-in at a racially segregated lunch room, a federal court of appeals determined that the punishment, administered without benefit of notice or a hearing, violated the students’ right to due process.

Later, in 1967, a federal district court ruled in favor of Black students at South Carolina State College, protecting their right to protest without prior approval from the college administration.

Indeed, there is a long history of the intrepid champions of racial justice being among the fiercest defenders of freedom of expression.

In 1952, for example, the Baltimore Afro-American newspaper criticized the prosecution of a white supremacist who had been convicted under a state law that criminalized racist group vilification. In an editorial, the newspaper wrote that the battle against bigotry can be fought most effectively “in an atmosphere in which freedom of speech is not restricted or confined.”

“We seek for those with whom we disagree,” the editorial continues, “the same rights and privileges we demand for ourselves.”

Thurgood Marshall, Pauli Murray, and Eleanor Holmes Norton — all stalwart fighters for racial justice — echoed that same sentiment, defending the rights of racists to speak freely because they could see the bigger picture.

The most aggressive censorship efforts in American history have attended the imposition and maintenance of racial hierarchy. In the 19th century, many states enacted laws that criminalized teaching literacy to Blacks — an egregious effort to erase the African American mind.

As new attempts at suppression rear their head today, we must remember that tragic experience and subsequent iterations of ideological and intellectual tyranny. Racial justice activists ought to use those acts of censorship as rallying points to resist all undue encroachments upon freedom of speech, listening, teaching, and learning — because free expression helps, rather than hurts, the fight for racial justice.

Randall L. Kennedy is the Michael R. Klein Professor at Harvard Law School. His column runs bi-weekly on Thursdays.