Free Speech: Sensitive Censors

The ubiquity of uniquity


Gangsta rap must be a particularly virulent form of speech. Billboard has editorialized against it. Sen. Carol Moseley Braun (D-Ill.) and Rep. Cardiss Collins (D-Ill.) have held not one, not two, but four congressional hearings about the menace. The National Political Congress of Black Women has illegally barricaded the Nobody Beats the Wiz record-store chain because it sells the music. In fact, the NPCBW's head, C. Delores Tucker, believes if stopping gangsta rap requires "regulation by Congress, so be it."

Yes, the music must be singularly wicked to demand such attention. But when Tucker gets to the Capitol to lobby for special protection against gangsta rap, she'll have to take a number and wait in line. There's already a bunch of folks ahead of her, all claiming that their particular object of disgust is so loathsome and so destructive that it requires—nay, demands—an exemption from the First Amendment's guarantee of free speech.

At the front of the queue are activists who hate "hate speech." "Racist speech [is] qualitatively different," says critical race theorist Mari J. Matsuda. Then there are the anti-porn people: "The way [pornography] works is unique," claims feminist legal scholar Catharine A. MacKinnon. And those who wish to rally around the flag have friends in very high places: "The flag uniquely symbolizes the ideas of liberty, equality, and tolerance," asserts Supreme Court Justice John Paul Stevens.

I'd like to coin a word, if I may: uniquity. This refers to the concept that some speech is so uniquely evil, so iniquitous, that the normal rules no longer apply—including the First Amendment. Although you might think that the uniquity argument would lose force the more often it's used (after all, how many worst forms of speech can there be?), the opposite is true. Over the past few years, the uniquity argument seems to have gained both greater currency and intellectual respectability.

Take campus speech codes (please). Critical race theorists supply much of the philosophical support for the regulation of "hate" speech. They take great pain to show that speech which disparages individuals or groups on the basis of race or ethnicity (and, potentially, gender, religion, age, marital status, sexual orientation, disability, etc.) is not like other sorts of offensive speech.

One of the leaders of the movement is Matsuda, a professor of law at the University of Hawaii. She makes no bones about her uniquity claim. As she states in a seminal law review article, recently republished by the Westview Press in Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment, "Racist speech is best treated as a sui generis category."

And why should racist speech be actionable while other forms of offensive language should not be? Matsuda explains the difference: Racism is plainly wrong. We know this "from our collective historical knowledge." Racist speech is "universally condemned." Except, one assumes, by those participating in the "marked rise of racial harassment, hate speech, and racially motivated violence" that makes speech codes necessary in the first place.

Under Matsuda's plan, only speech directed against historically oppressed groups would be censored. Therefore, an African American denouncing whites may be "troublesome," but there's nothing that legally should be done about it. If, however, that same African American uses anti-Semitic language, Matsuda would be "inclined to prohibit" it. Under this regime, could Khalid Abdul Muhammad feel free to assail whites in general as "hook-nosed, bagel-eating, lox-eating" blood suckers, as long as he doesn't mention any Jewish-sounding surnames?

For Matsuda, college campuses present a "special case" where less tolerance is needed than "in the community at large." College campuses have already proven hospitable to intolerance in the form of the anti-pornography movement.

The anti-porn crusaders, in fact, have upped the uniquity stakes by claiming that both the problem and its solution are special cases. "The feminist critique of pornography, which is not like anything else, is one in which pornography is presented as not like anything else," writes Catharine MacKinnon. And one more thing: "Speaking about pornography is not like speaking about anything else."

Leaving aside whether her critique is truly special (it's been compared to, among other things, Marxist analysis, the Big Lie technique, and a revivalist tent meeting), it's not entirely clear what MacKinnon's uniquity claim is based upon. In fact, she is constantly comparing porn to other things. To her, pornography is like "Whites Only" signs, war crimes, racial epithets, hypnosis, and Holocaust denial. It's related to forced sex, hierarchy, femininity, and atrocities. For something that's "not like anything else," it sure is like a lot of things.

The uniquity argument is not only found in the exhortations of radicals. It also shows up in the august chambers of the highest court in the land. In 1989, the U.S. Supreme Court decided Texas v. Johnson, better known as the flag-burning case. By a 5-4 vote, the Court declared unconstitutional a Texas law against flag desecration.

The two dissents, written by Justice William Rehnquist (joined by Justices Byron White and Sandra Day O'Connor) and Justice Stevens, were quick to point out just how special the flag really is. Rehnquist's acrimonious but picturesque dissent includes a lengthy history of the flag and quotes part of Emerson's "Concord Hymn" and the entire text of Whittier's "Barbara Frietchie." For the chief justice, "The American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning." What's more, the flag inspires "uniquely deep awe and respect…felt by virtually all of us."

Stevens's opinion is more succinct but no less insistent. The flag for him is a "unique symbol" with a "unique value" that simply "cannot be measured." First Amendment precedents don't apply here, since "the case has an intangible dimension that makes [previous cases] inapplicable."

U.S. v. Eichman, in 1990, presented the Court with another flag-burning case, resulting in another 5-4 vote in favor of protecting flag abuse. Stevens, joined by Rehnquist, White, and O'Connor this time, wrote the dissent. He stated, apparently without irony, that more than any other symbol, "the flag is a reminder… that our obligation of tolerance and respect for all of our fellow citizens encompasses those who disagree with us." Hence, the government should be allowed to throw flag burners in jail.

The uniquity argument against flag burning continues to smolder. In late March, the New York State Assembly approved a resolution urging Congress to propose a constitutional amendment prohibiting wanton destruction of the American flag. "This is not just a symbol or an icon," explains New Rochelle Democrat Ronald C. Tocci. "It is the embodiment of everything that America stands for."

Just as defenders of Old Glory see flag burning as a unique attack on patriotism and all that is good about America, critics of gangsta rap view this form of music as a unique assault on decency and authority. They claim the music is a combination of profanity, misogyny, and violence with its own particularly ugly gestalt. They say it hurts an already oppressed community. The NPCBW's Tucker has even thrown historical conspiracy into the mix: "For 400 years, profit has come before principle as African Americans bore the brunt of slave masters' degradation. Who owns the companies that put out all this garbage? From what I hear, the record industry is demanding in their contracts that these messages of degradation be in the music of the artists."

Perhaps Tucker is right. Maybe gangsta rap is the one great exception to the First Amendment. That would make it just like hate speech, pornography, and burning the flag. So much for uniquity.

Steve Kurtz is a writer in Los Angeles.