Racist Speech and 'Reasonable People': A Proposal for a Tort Remedy
46 Pages Posted: 10 Aug 2013
Date Written: 1993
The First Amendment protects the freedom of religion and the freedom of expression. One component to the freedom of expression is the right of free speech. When the framers of the Constitution established this right, they did so to protect political speech from being regulated by the government. In fact, some people assert that the First Amendment protects all forms of expression in all circumstances and the government is constitutionally restricted from passing laws controlling free speech. However, this creates an inequality in the legal system as it fails to adequately consider and sanction the harm of racist speech. I argue that within this debate, the Fourteenth Amendment must be used to counteract the existing disproportionate emphasis on the First Amendment through the mechanism of traditional tort law. I propose that we provide a new tort remedy for victims of racist speech. The tort would determine racist speech according to a reasonable person of the disparaged group standard. Thus, instead of judging an assault against an African-American from a reasonable person standard, the assault would be assessed based on a reasonable African-American standard. I also propose that the victim must assert and prove four factors to establish a prima facie case. This narrowly tailored plan should ultimately protect not only the victim but the speaker as well; the plan would apply a very stringent test of what constitutes racist speech, and would determine whether the speech in question harmed the victim so as to warrant a sanction.
In Section II, this note provides a working definition of racist speech. Section III discusses the effects of racist speech on the victim. Section IV addresses the history of the First Amendment in its development from English philosophical influences to the Constitutional Convention to the modern traditional applications. Section V examines the Fourteenth Amendment and its guaranteed protection of historical victims and Section VI proposes the tort standard and discusses how it should be implemented.
Keywords: First Amendment, Fourteenth Amendment, racist speech, tort, standard, free speech, rights, reasonable person
JEL Classification: K13, K19, K30, K39, K42, K49
Suggested Citation: Suggested Citation