Free Expression for Some

OP-ED by: Graham Wielgos

For many Americans, the U.S. Constitution joins the Bible as one of the two documents that is to be revered and seen as categorically pure. Questioning the Constitution, or even providing a unique interpretation of it, is considered blasphemous. However, the people who profess the sanctity of the Constitution are the same people who have always benefited from it most - White men. It is easy for them to say that Constitution and its traditional interpretation, particularly their sweeping definition of “freedom of expression,” must be defended at all costs, because they will never be the ones paying the price for harmful expression. While many people claim that the First Amendment gives all Americans an equal right to freedom of expression, in practice, it primarily protects White people and allows for hate speech that works to silence people of color.

While White Americans generally have significant freedom to express themselves

without consequences regardless of harm to others, people of color are forced to abide by a separate set of rules that police their expression to a much higher degree. In “Mapping the Margins,” noted critical race theorist Kimberlé Crenshaw writes,

The history of social repression of Black male sexuality is long, often violent, and all too familiar. Negative reactions to the sexual conduct of Black men have traditionally had racist overtones, especially where that conduct threatens to "cross over” into the mainstream community. [T]he decision to prosecute [...] might reflect an established pattern of vigilante attitudes directed toward the sexual expression of Black men. (Crenshaw, 1991)

People of color have repeatedly been silenced throughout American history. In her essay, Crenshaw uses the example of 2 Live Crew, a Black rap group that was prosecuted for using offensive misogynistic language in their music. While Crenshaw does not defend their language, she highlights that many White acts have done the same without fear of reprisal. However, because they are Black and are expressing themselves through a traditionally Black art form, 2 Live Crew still found themselves in court and with their music legally deemed obscene. This case exemplifies how the First Amendment does not provide an equal right to all expression, but rather only to expression that is acceptable to White people. The Constitution was written exclusively by White men, and today, over 70% of federal judges are white (Cusick et.al., 2021). Given that the Constitution was written by and is still interpreted by White people, it is clearly used to protect a White social dynamic with little regard for the values and forms of expression of other groups. While the First Amendment provides significant freedom of expression to White people, it fails to give that same level of freedom to people of color.

Because the First Amendment protects the freedom of expression of White men at any cost, it routinely allows for hate speech that erodes the ability of women and minorities to express themselves. In The Cult of the Constitution, legal scholar Mary Anne Franks asserts that, “ever-expanding definitions of what counts as “free speech” give constitutional cover to practices that disproportionately harm women and minorities, while attempts to ensure women and minorities’ equal exercise of freedom of expression is labeled “censorship.” (Franks, 2020) As established, white men are given considerable flexibility to express themselves however, they want, regardless of if that expression hurts others. However, this expression frequently marginalizes women and people of color, which, by extension, limits their ability to express themselves while maintaining their own safety and security. When accommodations are made for these marginalized groups to be able to express themselves in a safe space, they are decried as oppressive to white men. When I was a freshman in high school, the administration at my school organized an assembly for Black students to share their thoughts and experiences about the Black Live Matter movement and racism in America. There was a swift backlash to the assembly, with many white parents claiming that the exclusion of white students impinged on their rights to express themselves. The incident made national news, with the backlash going so far that our principal, a Black man, received death threats that caused him to move out of his home. Not only does this show how hate speech is detrimental to the freedom of the victims, but how efforts to give marginalized people the freedom to express themselves are portrayed as attacks on White expression.

By forming a hardened deference for the Constitution, many Americans have implicitly accepted the ideas that it contains, regardless of the fact that the freedoms it espouses do not include all people. Opening up freedom of expression to all people will mean engaging in a deep analysis of how our interpretation of the law favors White men over other groups, and how the language of one person can take away the ability for another the express themselves. While the First Amendment claims to give all Americans an equal right to freedom of expression, reaching this ideal will take significant self-reflection and structural change.

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Crenshaw, K. (1991). Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review, 43(6), 1241-1300.

Cusick, J., Hananel, S., Oduyeru, L., Gordon Director, P., Parshall, J., Root, D., Buchanan, M. J., Volsky, I., Berger, S., Edmund, M., Graves-Fitzsimmons, G., Harris, K. M., & Katulis, B. (2021, November 4). Examining the demographic compositions of U.S. circuit and District Courts. Center for American Progress. Retrieved February 2, 2022, from https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts/

Franks, M. A. (2020). The Cult of Free Speech. In The Cult of the Constitution (pp. 105-157). essay, Stanford University Press.