Locating freedom of speech in an era of global white nationalism

The chief spokespersons for this more refined sentiment against persons and voices that are new and unfamiliar to the campus and intellectual discourse are not the purveyors of gutter hate speech. They are polite and polished colleagues. The code words of this backlash are words like merit, rigor, standards, qualifications, and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend the powerful have become powerless.¹

~ Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlé Crenshaw, 1993

In 1982, Critical Race Theorist Richard Delgado published a law review article entitled “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling.”² This law review article served as the backbone for a new era of discussing the First Amendment’s guarantees of free speech and their relationship to racism in the United States. In 1993, that essay was published in a collection of four essays called Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. The collection, authored by now canonical scholars of Critical Race Theory and leaders in the struggle to create an inclusive academy, addressed the battle unfolding on campuses across the nation. In the post-civil rights era, white people had turned to free speech doctrine as a mechanism for protecting the right to engage in racist thoughts and practices. The “Introduction” to the edited volume observes: “Those civil libertarians who favor restrictions on hate speech find themselves in a distinct minority. They are called ‘first amendment revisionists’ and ‘thought police.’”³ These monikers for those who wish to limit freedom of expression have stuck – and seemingly succeeded in stalling conversations about regulating free speech in the US.

We were struck, upon reading Prof. Charles Lawrence III’s discussion of the exigence that gave rise to his essay “If He Hollers Let Him Go: Regulating Racist Speech on Campus”⁴ and the above passage, how little has changed in the over 25 years since the publication of Words That Wound. Prof. Lawrence describes a hate crime in which two white students defaced two posters, one of Beethoven and one for a Black fraternity dance. They had, after a discussion about Beethoven’s racial identity, transformed the former into an offensive Sambo image, complete with “wild curly hair, big lips, and red eyes”⁵ and scrawled the n-word on the latter, in large letters. The incident, which happened at Stanford University, was labeled an “unfortunate boyish prank by misguided undergraduates”⁶ that was protected by free speech. The harm that the racist speech caused went completely unaddressed, leaving the community without redress.

History repeats itself, it seems. Or rather, history has never truly broken with itself. Even in 1993, Matsuda noted, in a comment that describes our present day post-fact political difficulties: “Ideas that were once accepted as truth we now reject.”⁷ The free speech groundwork for our current global moment of ethnonationalism and neoliberalism was laid many years ago, in the 1960s during global negotiations over the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “the Convention”). As Matsuda notes, despite ultimate agreement that spreading racist ideas ought to be an offense punishable by law, the United States adopted a higher standard of incitement to violence than most other nations as the benchmark for actionable racist activity. And though the US signed the Convention in 1966, President Jimmy Carter did not refer it to the Committee on Foreign Relations until 1978 and the Senate did not ratify it until 1994. As demonstrated by its substantive reservations to the final Convention wording, the US maintains an ideological commitment to free speech absolutism that much of the rest of the world believes to be a threat to its people.⁸ Free speech is treated as an unequivocal ideological good in the US.

In the past five years, across the United States and indeed the world, hate crimes such as the one Prof. Lawrence describes have been perpetrated against Black people, Asian people, Indigenous people, Muslim people, Palestinian people, and Jewish people, among others, against a backdrop of neoliberal settler colonialism. The “polite and polished” white colleagues persist, using seemingly race neutral standards to maintain power, but the “purveyors of gutter hate speech” have returned as well. Donald Trump, also known as #45, has ushered in a new era of “overt racism,” in the words of the inimitable Stuart Hall. We write the introduction to this special issue in the midst of a global pandemic, prompted by a novel Coronavirus that the President of the United States has called, in Sinophobic language, the “Wuhan Flu.”⁹ Between dog whistles directed at Black and Latinx people, #45 tweets incitements to white nationalist violence, acts that just a few short years ago would have been unthinkable coming from the President of the United States.¹⁰ Until recently, private social media platforms adopted a laissez faire attitude toward his vitriol, in the spirit of the free speech that Words That Wound describes. While Twitter has stepped in to confront #45, the nation’s relentless obsession with free speech continues.¹¹ What Steven Shiffrin calls “free speech idolatry”¹² governs in the United States. Recently, this idolatry culminated in an act of supreme hypocrisy, in which #45 banned Critical Race Theory in the White House, calling it “divisive, anti-American propaganda”¹³ that threatens whiteness and nation.

Critical Race Theory, however, is no such thing. Rather, it is a deeply compassionate and justice-oriented movement with its roots in the legal academy, that emerged in response to the rollback of civil rights in the 1970s and 1980s.¹⁴ It is a theoretical framework and interdisciplinary movement that examines the continuation of racism in America, as an ideology that is built into law itself. Law, for Race Crits, is a mechanism for maintaining white supremacy, which Cheryl I. Harris explains is synonymous with white dominance not only white nationalism.¹⁵ The goal of Race Crits, then, is to locate and confront racism within the law, using methodological approaches such as storytelling that center the wisdom of people of color. Contemporary iterations of Critical Race Theory explicitly theorize the deep connections between racism in the United States and colonialism abroad. Indeed, scholars like Nikhil Pal Singh understand the mutually constitutive nature of racism/colonialism, as necessary elements of Empire, connected through a fetishization of property and wealth over ethics and care. These scholars show us that identifying, interrogating, and combatting ways that racism and colonialism are embedded within law is more pressing now than ever before. This is certainly true in the area of free speech studies. But understanding how law reinforces white supremacy is only one step in interrogating race and coloniality in free speech. Law is more than words; it is also performative. The social locations in which it is practiced, implemented, negotiated, and resisted deserve sustained scholarly attention. While we do not advocate for a policy action in this introduction, we believe that hate speech is a tool for spreading virulent ethnonationalism, in a manner that is detrimental to all people. And that communication scholars have an ethical obligation to engage the legal and lived intersections of the First Amendment. 

By our count, only one article in this journal has centrally and explicitly addressed Critical Race Theory in the past 15 years.¹⁶ Though other essays have taken on doctrinal analysis that implicates hate speech, e.g., the clear and present danger doctrine,¹⁷ they have done so using primarily legal doctrinal methodologies, that center cases and legal actors as the relevant sites for the study of free speech. As a result, these essays tend to focus on white men and their imaginaries of the First Amendment. In their analysis of First Amendment Studies (formerly Free Speech Yearbook) from 1969 to 2006, Pat Arneson and David R. Dewberry note that there have been three major entry points to studying the history of the First Amendment: 1) case law, 2) judicial history, and 3) individual jurists.¹⁸ While we acknowledge the importance of all three of these in understanding and theorizing law, we also caution against the types of fetishization of whiteness that Richard Delgado contends erase people of color and their experiences from American jurisprudence.¹⁹ We view this special issue as counterpoint to scholarly racial and colonial imperialism, as it manifests in the legal academy as well as in communication and related disciplines.²⁰ We also view it as an intervention into the tendency toward US-centricness in legal conversations around free speech.²¹

Kevin Johnson argues in his introduction that free speech increasingly pervades every aspect of life. This reality, we observe, illuminates the fact that free speech is not only an issue for the courtroom but also one that requires material consideration in cultural, political, and economic spaces. As Billie Murray observes of Snyder v. Phelps (2011):

Community responses to Westboro’s hate speech reveal a mode of resistance based in corporeal presence, as counter-demonstrators’ bodies are used to shield mourners from Westboro’s messages of hate … The corporeal nature of these responses reasserts the boundaries between the public and private in ways that judicial responses do not.²²

The performances of those protecting mourners materially constitute free speech, here by buffering hate speech. The title of Murray’s essay, “Words That Wound, Bodies that Shield,” invokes and rewrites Delgado by reading bodily resistance. In a similar vein, Brian Amsden’s work on lewdness in schools, which could easily be applied to racial and colonial content,  illuminates how the legal collides with the vernacular when school administrators must make assessments about freedom of expression.²³

These two essays are examples of how scholars have been forging new paths to studying free speech, such as performance studies and vernacular rhetoric. They point to the importance of burgeoning interdisciplinary approaches to the First Amendment. Theoretical and methodological interventions that locate new sites of interpretive significance for freedom of expression have the potential to center people of color, in the US as well as the Global South. They can aid in producing new strategies against harms such as hate speech as well. We advocate for such analyses here, by treating race and coloniality as lenses for making whiteness and white supremacy legible and thus contestable within free speech jurisprudence and its material realities. The essays that follow draw from diverse epistemological standpoints to make visible a different First Amendment than the one that traditional studies of free speech offer. They are anchored by Critical Race Theory, as an interdisciplinary and transnational approach to uncovering where race and coloniality are calcified within law and how they can be resisted.

The stakes of such studies are considerable, particularly at this moment. With threats from ethnonationalism growing by the day, scholars and activists alike require new methods, theories, and practices to interface with free speech. Free speech absolutists, given the outcome of cases such as Matal v. Tam (2017), seem to exist on both sides of the political spectrum. They continue to produce a world in which freedom of expression trumps the rights of Outsiders, in Critical Race Theory’s parlance. The inexorable move toward what Charlotte Garden calls the “deregulatory First Amendment”²⁴ requires a new set of schemas and strategies for contemplation and intervention. Yet, as multiple essays in this special issue show, the opposite of the deregulatory First Amendment – i.e. fascist state control over free speech – is also a growing threat, in the US and the globally.²⁵ What we refer to here as the “statist First Amendment” or “statist free speech” relies on disciplinary power to quell dissent. A statist approach to free speech limits freedom of expression and related rights in order to silence opposition to the government. In the US, the statist First Amendment looks like the violent policing of #BlackLivesMatter protesters and the gentle protection of Women’s March protesters. In India, statist free speech looks like the violent crackdown on those who oppose Hindutva and the enthusiastic support for those who embrace the colonial project. These hypocrisies are rooted in the toxicness of white liberalism, and the ideological manipulation of free speech.

The essays in this special issue, which explore freedom of speech in former colonies and settler colonies, tend to approach their arguments from different epistemological starting points than those which address US free speech rights, while also recognizing the shared ontological whiteness of freedom of expression as an outgrowth of liberalism and colonialism. They understand Outsider free speech practices on their own terms, without superimposing US national ideologies and constitutional frameworks on them. They also nonetheless put themselves in conversation with the liberalism and colonialism that foundationally constitute the US free speech framework. Freedom of expression, we contend, is a liberal and colonial idea that manifests in different, but nonetheless wildly unequal, ways in different nations. #45’s Executive Order on Combating Race and Sex Stereotyping illustrates this principle clearly. In a move that contradicts the spirit and text of the First Amendment, #45 calls for the elimination of all speech that he defines as “race and sex stereotyping” while also declaring US commitment to equality under law. The rhetoric of freedom of speech contradicts the practice of freedom of speech, all in the name of liberalism. Yet it retains its philosophical foundations and grounding in epistemological whiteness. This is to say that free speech is an outgrowth of whiteness and its political genealogies, organized through logics that are tied to violent civilizing missions and resource extractions.

The histories of free speech that the scholars in this collection highlight point to the need for theories and practices of decolonization, that untangle freedom of expression from its liberal and colonial roots. Decolonizing theory is part of a larger solidarity project, focused on decentering Western modernities and whiteness itself by identifying the effects of colonialism and articulating resistive epistemologies.²⁶ The negotiations that preceded the Convention highlight the diversity of national approaches to free speech and the complexities of the struggles to regulate and theorize it. As we argue in detail below, free speech studies should be treated as a pluriversal endeavor, rooted in the histories, positionalities, and scholarships of nations around the world. This special issue embodies such a pluriversal vision, by highlighting multiple narratives of free speech, across borders, methods, theories, and epistemologies. What is clear across essays is that whiteness and coloniality are frequently coproductive anchors for oppressive free speech policies, and that ideologically rigid adherence to free speech principles results in violence, which affects the subjects and perpetrators of racist speech. As Matsuda explains, unchecked free speech is corrosive to individual and community. Even the most ethical and self-aware people suffer in the face of hate speech, because they endure the psychic strain of consciously refusing the derogatory words applied to them and the fracturing effects of hate speech on their worlds.²⁷

The remainder of this essay proceeds in three parts. In Part I, we interrogate how free speech continues to be a raced endeavor in the US, with rights being enforced differently across different racial groups. Even seemingly content neutral free speech regulations presuppose a “marketplace of ideas” that, in practice, is less equal than we imagine.²⁸ In Part II, we consider how free speech operates structurally in the Global South, as a remnant of colonial occupation and a marker of corrosive whiteness. Decolonizing free speech scholarship, we contend, means recognizing that the US is not a benchmark for the rest of the world but a nation that has physically and discursively shaped the histories/modernities of the entire globe. Decolonization is not a metaphor but a call for new radical performative practices that can rewrite and circumvent oppressive imaginaries of free speech.²⁹ Finally, in Part III, we introduce the essays included here.

The racial double standards of US free speech absolutism

Despite conservative allegations to the contrary, the American Civil Liberties Union remains one of the most powerful advocates for expansive free speech rights in the United States, having defending individuals from accused terrorist Anwar al-Awlaki to political conservative Milo Yiannopoulos.³⁰ As an organization committed to free speech absolutism, the ACLU maintains that even the most offensive speech, regardless of content, ought to be protectable under the First Amendment to the US Constitution. Free speech absolutists most often defend their positions by contending that further regulating hate speech would create a slippery slope of content-based regulation in which progressive ideas would be banned. They also maintain that racist ideas need space to breathe, in the marketplace of ideas, so they can be rejected through decisive debate. Free speech moderation and free speech nuance are increasingly rare, as the Supreme Court and American publics find themselves in polarized camps in support of free speech libertarianism or restriction of hate speech.³¹ Though free speech practices outside of the United States, particularly in Europe and Australia, militate against free speech absolutism, boundless freedom of expression remains persuasive to many, across the political spectrum. The American way is that more speech is good speech.

The biggest flaw in the absolutist argument is that free speech has already been limited considerably, without the complete erosion of the First Amendment. Fighting words, incitement to violence, obscenity, child pornography, defamation, threats on the president, and commercial speech are all restricted because their actual and potential harm outweighs their benefits. The claim that there’s no way to implement hate speech laws dismisses the work of scholars who offer narrowly tailored proposals for limiting words that wound. Matsuda, for instance, argues that hate speech could be regulated by banning sui generis racist expression, which: 1) communicates a message of racial inferiority, 2) directed against a historically oppressed group, 3) in a persecutory, hateful, and degrading manner. She goes on to discuss the “hard cases,” from Holocaust deniers to racist social science, with great nuance.³² Though it is beyond the scope of this introduction to rehash all of Matsuda’s arguments here, we want to highlight that workable proposals to ban hate speech have been offered and rejected, with an almost cultish devotion to the slippery slope argument. We believe a path exists for regulating hate speech.

Though a number of causes may be to blame for these rejections, one important implicit one is the desire to maintain the illusion of equality in a world of racial inequality. The First Amendment is enforced in an unequal way but its advocates maintain that it is not. Stanley Fish attributes this to “boutique multiculturalism,”³³ a way of deriving pleasure from the incidental and superficial aspects of Outsider cultures while refusing to afford Outsider groups with, in Charles Taylor’s conceptualization, a “politics of difference”³⁴ instead of a “politics of equal dignity.”³⁵ Hate speech is only legible under the former framework, not the latter one.

The politics of equal dignity create a paradoxical situation in which free speech is neither applied in a way that is racially equal nor produces racially equal effects. For example, time, place, and manner restrictions, as laid out in Ward v. Rock Against Racism (1989), must be content neutral, narrowly tailored to serve a significant state interest, and leave alternate channels for communicating the speaker’s message. Yet, as Arneson’s work on the use of protected “offensive speech” in the context of historical fiction demonstrates, often those with cultural, political, and economic power have more avenues for communicating their messages to the public than those who do not, thereby entrenching white supremacy.³⁶ The implication of Arneson’s argument is that existing limitations on actions against hate speech serve to marginalize people of color while the lack of restraints on content neutral offensive speech serve to amplify the messages of white people with social power. Seemingly race neutral laws, in practice, produce a racially unequal First Amendment. The same is true of time, place, manner restrictions. As Dan V. Kozlowski demonstrates through close reading of Supreme Court cases, content and viewpoint discrimination have become muddled over the decades, producing confusion and inconsistency that tends to disadvantage those groups who already face disadvantages.³⁷ The inequalities of the always already skewed marketplace of ideas are amplified by inconsistent application of seemingly race neutral legal principles. In addition to disadvantaging racial minorities, the effect of confusion in time, place, manner restrictions is to chill free speech, a troubling outcome.

Delgado’s “Words that Wound” lays out a theory of tort action for hate speech on the basis that hate speech itself is a form of assault, with profound psychological, sociological, and political effects.³⁸ He reminds us that: “The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted … Not only does the listener learn and internalize the messages contained in the racial insults, these messages also color our society’s institutions and are transmitted to succeeding generations.”³⁹ This is particularly true in the context of children, who have a unique “impressionability to widely accepted prejudices.”⁴⁰ Critical race studies scholars have demonstrated the corrosive effects of racial microaggressions on people of color,⁴¹ as well as the unequal imperatives to physical and affective self-management and emotional labor of repair that they bear.⁴² When, as Richard Dyer argues, whiteness is an invisible norm,⁴³ the cultural support offered by mainstream society serves a protective function against the severe psychological harm of racism. Indeed, as David Eng and Shinhee Han show, in the tradition of radical Black scholars like Franz Fanon, even the Freudian, Bowlbyian, and Kleinian psychological theories that are used to treat patients with depression and anxiety tend to erase the permanent state of melancholia that racism produces.⁴⁴ The inability to see race produces an inability to theorize race. This is demonstrable in the world of physical health as well, where the cumulative effects of structural racism, rhetorical and material, result in devastating health effects for African American communities.⁴⁵ The emotional distress that comes from these harms is so considerable, Delgado argues, as to be actionable as a tort.⁴⁶ In short, the harms of hate speech do not adhere to the rules of equality or justice, even though the law governing free speech is purportedly applied by courts equally in a race neutral way.

Legal scholar Andrew Taslitz contends that, at its extremes, the effect of hate speech is to produce a state of “mutual indifference”⁴⁷ that jurists have an ethical imperative to address. The term mutual indifference originates with the theories of Norman Geras, a philosopher who studied the cultural conditions that gave rise to the Holocaust. The contract of mutual indifference, an analogue to Charles Mills’ racial contract,⁴⁸ explains not only contemporary hate speech troubles in the US but also around the world, across time. Taslitz’s analysis of the relationship between hate speech, the contract of mutual indifference, and slavery concludes by arguing that the Equal Protection Clause of the Fourteenth Amendment functionally rewrote the contract of mutual indifference, by implicitly promising to protect Black Americans from the dangerous dehumanization produced by hate speech. While not all hate speech gives rise to the type of systematic violence seen in slavery and genocide, it is a necessary precondition for both. Taslitz, invoking Lawrence, writes: “All threats of violence are bad, but racially-subjugating threats of violence are worse evils because they resurrect the humiliations of slavery that the Reconstruction Amendments sought to end.”⁴⁹ He concludes that “[t]he special harm of a hate crime, even if for a few brief moments between individuals, is its rekindling of slavery.”⁵⁰ Here, the Fourteenth Amendment provides the justification for rereading the free speech clause of the First Amendment as banning hate speech, because it violates the spirit and language of the Reconstruction Amendments.

In light of Taslitz’s reading of the Fourteenth Amendment, cases like Nationalist Socialist Party of America v. Village of Skokie (1977) and R.A.V. v. City of St. Paul (1992) involve acts of intimidation, not acts of free speech, by a white majority on historically enslaved peoples. Narrated in this way, Virginia v. Black (2003) is not a step forward in protecting Black people from acts motivated by racial animus but the exception that proves the rule of free speech absolutism. This reading is an elegant way of reframing the racial free speech inequalities of our contemporary moment. Instead of adopting a “perpetrator perspective,”⁵¹ it centers the perspectives of the aggrieved.

Take, for instance, Colin Kaepernick’s decision to kneel during the national anthem at football games. Many derided this choice, labeling it an affront to the nation and a violation of labor contracts as opposed to a radical act of freedom of expression. Even Justice Ruth Bader Ginsburg, a member of the liberal wing of the Supreme Court, reactively called Kaepernick’s actions “dumb and disrespectful.”⁵² “I would have the same answer if you asked me about flag burning,”⁵³ she said. Though Ginsburg apologized, Kaepernick was punished for his action, by the NFL and the nation. #45, who Alexander Tsesis might label a “charismatic bigot,”⁵⁴ seized the opportunity to demean not only Kaepernick but Black Americans and those who kneeled in solidarity with them generally. The response to Kaepernick highlights not only how Black people are denied equal rights to free speech in the United States but also dehumanized for their exercise of those rights. That dehumanization can be read as an abridgment of Kaepernick’s rights and a violation of equal protection under the Fourteenth Amendment that replicates the “humiliations of slavery.” Though Kaepernick’s freedom of expression was arguably limited because he was working for a private entity,⁵⁵ the pushback against his actions shows the willingness of many Americans to contradict their own free speech absolutism on the basis of race and how hate speech, particularly when defended and condoned by the President of the United States, erodes the empathy and compassion necessary to prevent the slide into a state of mutual indifference and, ultimately, overt racism.⁵⁶

Taslitz’s arguments about the “humiliations of slavery,” which echo Saidiya Hartman’s observations about the “afterlives of slavery,”⁵⁷ are more pronounced in the context of the protests in Ferguson, MO, which Justin Hansford demonstrates violated freedom of speech through the racially disparate imposition of rules against freedom of assembly. The First Amendment, he contends, is “a racial project: it results in predictable racialized outcomes that redistribute resources along racial lines.”⁵⁸ Comparing the treatment of antiracist protestors in Ferguson to Nazi marchers in Skokie not only demonstrates this reality but highlights the intentional protection of white property rights at the expense of Black people. Hansford lays out the historical embeddedness of freedom of assembly, which is an a priori necessity for mobilizing free speech in a protest context, with slave patrols. Black Codes, including fugitive slave laws and restrictions on gatherings, fueled suspicions about Black assembly, in a manner that persisted beyond the civil rights movement. Lawrence’s argument that Brown v. Board of Education (1954) is, in reality, “a group defamation case”⁵⁹ that finally recognized the racial impacts of segregation, anchors Hansford’s claim that “the civil rights movement can be re-understood as an effort to have the First Amendment equally applied for the first time, as Blacks sought protection from segregation’s hate speech in a manner that balanced dignity and freedom of speech interests.”⁶⁰

The legal history that Hansford lays out reveals how the federal judiciary protected protests in a manner that failed to expand freedom of assembly rights for Black people. The effect of these actions was to entrench “tiered personhood,”⁶¹ seemingly in violation of the Fourteenth Amendment. Informal “keep it moving” practices combined with “failure to disperse” laws worked together to limit the free speech and freedom of assembly rights of Black protesters.⁶² Even those Black protesters who performatively enacted surrender, as in die-ins and hands up don’t shoot gestures, were treated as “threat in abeyance,”⁶³ that when read from a position of white fragility, represented a clear and present danger to structural whiteness. While Black protesters in Ferguson were violently policed, white nationalist protesters in Charlottesville, VA - Trump supporters in Washington, DC - were treated with care, even after one of them drove into a crowd and killed a white woman, Heather Hayes. Ostensibly a case like Doe v. McKesson (2020), that asks whether protesters can be held liable for “negligently„ staged protests, would apply to the Charlottesville murderers. But, given the history of free speech jurisprudence, we are skeptical that the white perpetrators would be held to the same standards as Black people have been in even peaceful protests.

Though Taslitz focuses on the reproduction of slavery in his discussion of the Fourteenth Amendment, similar arguments can be made about any groups who are targeted by hate speech, in violation of their rights to equal citizenship. For instance, Native American mascots, protected under the Lanham Act, constitute disparaging representations of an historically marginalized group of people.⁶⁴ Read in this context, Tam appears as a disingenuous decision that claims to protect the rights of Asian Americans to self-identify using a racist name, i.e., the Slants, while laying the groundwork for undoing the gains of Indigenous People in canceling the disparaging Washington R******* trademark.⁶⁵ The Supreme Court’s unanimous decision was the result of Federal Circuit’s request for the parties in the case to sua sponte brief the question of whether Section 2(a) of the Lanham Act violates the First Amendment’s guarantees of free speech. The request to brief the constitutionality question, which courts had previously elided, demonstrates how free speech provides political cover for racist actions. In this case, Section 2(a), which was codified in 1905 and reenacted in 1946, became a site for freedom of expression analysis only when it implicated the rights of Asian Americans and Native Americans. Though Simon Tam, frontrunner for the band the Slants, considers the case to be a victory for self-representation, we contend that it was a pyrrhic one that ignores the fundamental inequalities of the First Amendment. The racial libertarianism of the Supreme Court entrenches the marketplace of ideas as an ideal but does nothing to ameliorate structural inequalities that prevent it from succeeding in practice.⁶⁶

Similar examples of the performative use of freedom of expression, as a shield from claims of discrimination, are plentiful. In one recent instance, signatories of the now infamous Harper’s letter advocating against #CancelCulture used their free speech rights to push back against one of the few, albeit imperfect, ways that people of color have to speak truth to power in the face of inequality. Free speech absolutism, far from exemplifying the egalitarian ideals of the Constitution, creates hierarchies of citizenship that are antithetical to it. In the next part, we interrogate the larger racial project that underlies the First Amendment, i.e., that of modernity itself and its relationship to colonialisms, past and present.⁶⁷ To unpack this embeddedness, we highlight the importance of critically interrogating the racist and violent roots of white liberalism. Quoting Italian philosopher Dominico Losurdo, Mills notes: liberalism has “been vigorously active in installing nouveaux regimes of imperial racial rule with a body count far greater than the anciens regimes of class.”⁶⁸ In the Global South, architectures of white liberalism have justified violent colonialism and racism, often through statist notions of free speech.

The colonial roots of the white liberal project

Liberalism emerged from the heart of the Empire, by marking colonized and enslaved peoples as savages who needed to be “civilized.” The civilizing project was fundamental to white liberalism, not incidental to it. Indeed, the civilized could only be defined in reference to their opposites, through the hegemonic lenses and structures of whiteness. Meditating on the imperial roots of the liberal framework, Robert Darnton writes (2001):

Many rulers genuinely cared for the welfare of the natives. Lord Bentinck, governor general from 1828 to 1835, did not simply seek to maximize power by abolishing suttee or even by admitting Indians in the East India Company. Nor did his advisor, Thomas Babington Macaualay, design an educational system to be conducted in English for an Indian elite merely in order to make the bureaucracy more efficient. They believed in the liberal principle of promoting happiness. In fact, the father and grandfather of liberalism, John Stuart Mill and James Mill, developed that principle into a philosophy while working for the East India Company. J. S. Mill’s testimony about the Company to the House of Lords anticipated his manifesto of liberalism, On Liberalism. And Mill’s biographer, John Morley, tried to translate that philosophy into government policy 50 years later while serving as Secretary of State for India.⁶⁹

Locating the origins of liberalism in the violent architecture of the colonial project of the British Empire speaks directly to the whiteness of liberalism, a political philosophy held up as promoting happiness and progress among colonized peoples. Liberalism offered a necessary utilitarian ideology for colonial expansion, giving credibility to colonial techniques of repression and methods of discipline. It worked to uphold and perpetuate the commercial interests of the white, Northern European in the colony, expanding the reach of the market as a civilizing mission and acquiring stolen land and resources as property of the colonizer.⁷⁰ In this sense, liberalism served as the schema that organized cultural values in hierarchy, identifying white culture as superior, and giving legitimacy to the instruments of violence posited as necessary to civilize the savage.⁷¹ Even as proponents of liberalism were developing the concepts of freedom of assembly, freedom of speech, and freedom of press, they were also legitimizing the suppression of anti-colonial speech, discipline of anti-colonial resistance, and repression of anti-colonial organizing. An ideological apparatus of whiteness that packaged liberalism with the civilizing narrative of modernization was essential to colonial expansion. White liberalism set up the cognitive framework in which colonial theft, violence, exploitation, and oppression were ethical because they were “communicatively inverted” or “materiality turned on [their heads,]” as benevolence and civilizational gift.⁷²

This relationship between the civilizing project of liberalism and colonial expansion through land occupation and management is evident in the vast acquisition of Indigenous land by Northern Europeans through the deployment of treaties.⁷³ The treaties operated as instruments of violence, by alienating Indigenous communities from the land they lived on and bringing expanses of Indigenous land under the control of speculative capitalism.⁷⁴ Liberal philosophies, originating with white men like Thomas Hobbes and John Locke, worked as necessary instruments in the expansion of white supremacist power and control, particularly when intertwined with ideologies that constructed land as private property. The Lockean construction of land as property to be improved through human labor and turned into a site of extraction, for instance, reflects both the whiteness of liberalism and its deep enmeshment with the justification of colonial expansion. By attaching market value to Indigenous territories, white colonizers perpetuated the uniquely Northern European philosophy of land as site of improvement, while passing the latter off as universal civilizational value. In many cases, liberal philosophies of property marked Indigenous and tribal lands as valueless and barren, unless successfully incorporated into networks of white labor and capital. Whiteness as liberalism brought civilization, turning Indigenous lands into a source of progress.⁷⁵ Indigenous peoples were framed as the backdrop for white liberalism’s civilizing mission, with white culture operating as the tool of violence integral to founding the US.⁷⁶

Historically then, white liberal articulations of freedom and liberty are constituted within the organizing processes of colonialism and slavery.⁷⁷ They are built on the denial of fundamental freedoms and liberties to colonized peoples and enslaved persons stolen and indentured from colonized land to perform the labor that propelled the proliferation and reproduction of white capital.⁷⁸ White capital has historically been deeply implicated in colonialism, both transacting in markets for slaves, and drawing on slave labor to drive the market. Stolen land and stolen bodies formed the infrastructures of white capital. The liberal project, with its origins in protecting the interests of capital, is thus always already imbricated in the politics of colonialism. The property bearing subject, replete with the freedom to assemble, freedom to express himself, and freedom to participate in the market is the white owner of property. Whiteness turns to property ownership as the basis of claims to freedoms, and this forms its infrastructure of violence.⁷⁹ Turning the bodies and labor of enslaved peoples into property produced the racist architectures of liberalism, an elaborate civilizational theory for articulating individual rights, that tautologically justified its own violence against colonized subjects.

Here, we argue that inherent to the production of liberalism is the previously discussed communicative inversion, turning on its head of materiality, of the violence of whiteness.⁸⁰ “Freedom,” in the purview of colonial whiteness, is fortified by the erasure of the freedoms of colonized peoples and slaves. This freedom is articulated in the language of Christianity, with the white civilized subject ordained by God to perform his labor to turn land into a resource for capitalist expansion.⁸¹ Colonized peoples, constructed in this ideology as savages and barbarians, were the targets of massacres and genocides, legitimized through the projection of market expansion as the civilizing mission.⁸² In this way, the Catholic Church anchored liberalism and colonialism, with its claims to white personhood and people of color nonpersonhood.

To establish the infrastructures of freedom and markets in the Empire, colonial powers engineered and deployed a wide array of techniques of surveillance, discipline, violence, and cruelty, which were frequently entangled with religion. Consider for instance the elaborate sedition acts enacted by the British Empire in its colonies to discipline colonized people expressing their fundamental right to freedom. In the wake of the Sepoy Mutiny and peasant uprisings in India in 1857–1858, the British introduced the Press and Registration of Books Acts of 1867.⁸³ The Act of 1867 was explicitly crafted to surveil and control dissent against British colonizers.

In colonized India in 1919, a crowd of unarmed people, mostly peasants and workers, were protesting the Rowlatt Act (hereinafter “the Act”), an oppressive British sedition act, at Jallianwala Bagh, a public park.⁸⁴ The Rowlatt Act allowed the British to target those individuals suspected of seditious activities, with expeditious judicial trial and no right of appeal. It placed power in the hands of the Governor-General, who could initiate appeals based on the advice of local governments. The Act thereby consolidated power in the hands of local governments, who were permitted to arrest people under suspicion alone and prolong the detention of those already in prison, as well as restrict the movement of “suspicious” individuals and order them to abstain from specific actions. In what became the Jallianwala Bagh massacre, General Reginald Dyer, of the British Army, ordered his soldiers to close all the exits out of the park, and without warning to the between 5000 and 20,000 protestors who had gathered to disperse. He then ordered his soldiers to open fire on the protesting crowd. The soldiers kept firing until they ran out of ammunition, resulting in one of the largest and bloodiest incidents of mass slaughter of protestors in history.⁸⁵ Responding to the Jallianwala Bagh massacre – or what is referred to in public discourse as the Amritsar massacre - the white liberal literary icon, Rudyard Kipling is frequently quoted as calling Dyer “the man who saved India.” In his response justifying the violence, Dyer noted:

I fired and continued to fire until the crowd dispersed, and I consider this is the least amount of firing which would produce the necessary moral and widespread effect it was my duty to produce if I was to justify my action. If more troops had been at hand, the casualties would have been greater in proportion. It was no longer a question of merely dispersing the crowd, but one of producing a sufficient moral effect from a military point of view not only on those present but more especially throughout the Punjab. There could be no question of undue severity.”⁸⁶

Integral to the deployment of colonial violence is the construction of the colonized peoples as threats to security.⁸⁷ In this passage, Dyer produces a communicative inversion, a necessary tool in justifying the violence of colonialism, by projecting British colonial pedagogy onto the protesters challenging the Act. We note that the “moral effect” he sought to convey through the use of violence is constitutive of the whiteness of the liberal project. The savage, as the subject of the colony, is a threat to colonial morality and the assembly to protest the Act is an immoral gathering that calls for colonial violence as an instrument of suppression. Morality in whiteness is the right of the colonizer to deploy violence and oppression to silence decolonial claims to sovereignty. The principle that the colonized subject is unfit to enjoy the liberties enjoyed by white citizens of the Empire forms the core of liberalism. Moreover, the participation of the colonized subject in expressing the mere desire for liberty, or even the mere freedom to exist, is immoral, and is therefore the target of techniques of disciplining and violence. The colonized subject is thus punished for colonial incivility defined by Empire.

As articulated in the previous section in the context of US histories of freedom of speech, the depiction of colonized peoples as less than human is necessary for perpetuating systems of white capital and colonial oppression. The history of modern colonialism is rife with instances of the colonizer’s suppression amid struggles for the colonized’s resistance. For instance, the depiction of the slave as a threat to liberty worked to justify strategies of violence targeting the slave.⁸⁸ The slave as savage in white colonial thought is “less than human” and therefore outside of the realm of laying claims to liberty. The construction of the slave as property owned by the white colonial master is integral to the violence of whiteness over the body of the slave. The white proponents of liberal principles in the American, British, and Dutch discursive spheres were slave owners, offering elaborate principles justifying the discipline and violence imposed on the slave. The whiteness of First Amendment scholarship systematically obfuscates and erases these colonial histories, validating notions of freedom of speech and freedom of assembly as universal progressive markers. The practices of freedom and liberty are deeply incorporated into infrastructures of white capital to provide the necessary resources for laying claims to freedom. Manu Karuka historicizes this connection through Citizens United v. FEC (2010), by demonstrating how the acquisition of property and corporate shareholder status came to be mutually constitutive in the US.⁸⁹ To be white was to have the ability to acquire property but also rights, by and through corporations. Within Empire, the right to private property that serves as the cornerstone of freedom works through the disenfranchisement of the proletariat, the slave, and the colonized “other.”

The colonial framework of obfuscation and erasure finds continuity in the colonial-era sedition laws that circulate in postcolonial societies. These sedition laws are often deployed to consolidate the reach of the capitalist free market while at the same time disciplining sites of dissent and protest. In India for instance, the colonial era sedition law is organized to mark struggles against the large-scale corporate land grab as anti-national. The widespread marking of academics and activists as Maoists seeking to dismantle the state order is reminiscent of the architecture of surveillance and discipline under British colonialism, continuous with the colonial tools of sedition. The trope of the anti-national protester is catalyzed to silence voices that are critical of the state’s role in organizing violence, displacement, and expulsion. The alienation and disenfranchisement of adivasi (Indigenous) people is orchestrated through the deployment of colonial sedition laws. By labeling Indigenous organizing as Maoist, the Indian nationalist state justifies inflicting violence, in order to acquire land for capitalist expansion and to expand the extractive zones of capital articulated by colonialism and liberalism.⁹⁰

Most recently, Hindutva forces propelling the neofascist politics of the ruling Bharatiya Janata Party (“BJP”) and organizing the Indian state into a majoritarian one through the active alienation and disenfranchisement of Muslims are silencing dissent in ways reminiscent of colonial methods through the Unlawful Activities Prevention Act (“UAPA”).⁹¹ Students protesting the climate of hate in universities have been labeled anti-national and jailed,⁹² while those protesting caste violence have been labeled Maoist and jailed.⁹³ The ongoing oppressions carried out by the settler colonial Indian state in Kashmir similarly work through the production of a fictitious, racialized security threat, invoking colonial era practices of interrogation and imprisonment to attack opposition voices.⁹⁴ Entire regimes of imprisonment without due process are held up by the projection of the threat to democracy, immersed in a wide array of bureaucratic processes, paperwork, and techniques of interrogation onto people of color.⁹⁵

Similarly, Singapore’s colonial era sedition law serves as a powerful tool for silencing dissent against the authoritarian excesses of the extreme neoliberal state. The sedition law that was integral to the silencing of anti-colonial struggles in British India finds continuity in the strategies of the ruling People’s Action Party.⁹⁶ Regimes of discipline target worker organizing in order to ensure the unfettered expansion of the global free market. In Singapore, white liberalism and violent authoritarianism collide, in a manner that evokes colonial era violence, in the guise of protecting the state.

In contrast, in settler colonial states such as Aotearoa New Zealand, the whiteness of the Crown is sanitized and perpetuated through claims to universal equality that actively erase the histories of violence against Māori peoples and ongoing inequalities attached to settler colonial occupation.⁹⁷ Racist lobbying groups, such as Hobson’s Pledge, historically mobilized under the slogan of “moving forward as one” while also actively erasing Māori experiences with historical and contemporary realities of colonial occupation, genocides, rapes, and violence. Their claims to “freedom of expression” actively perpetuated white supremacist tropes and further marginalization of Māori. Their gestures toward free speech were merely a way of producing racial divisions that further harm the Māori and grabbing power.⁹⁸ Read together, these three examples of anti-colonial sedition laws demonstrate how freedom of speech and related rights are weaponized in former colonies and settler colonies, in order to suppress dialogue, not produce equality.

Underlying the violent implementation of freedom of speech and related rights in the context of sedition laws is the concept of civility, which is deeply intertwined with colonialism. Civility in white liberal contexts functions as part of the civilizing mission, as a tool to secure private property from the colonized subject. In other words, claims to “freedom” in the context of white liberal civility and white civil society are intertwined with the occupation of Indigenous territories and the dispossession of Indigenous peoples, mediated through economic markets. Here, the market itself is constructed through principles of white capital. This is partly because inherent in the idea of the market is a white neoliberal hunger for resources, through colonial means such as dispossession, alienation, and extraction.⁹⁹ It is also because civil society historically played a vital role in the ownership and management of colonized peoples, serving to both discipline and civilize them in the techniques of democratic civility.¹⁰⁰ Civic participation, constructed in the ideology of the market, and taught through civil society replicates the power of whiteness by justifying colonial practices.

The politics of civility play out in many spaces, including academia itself. Consider, for instance, the frequent criticisms of those who express solidarity with Palestinians against Israeli occupation, which are often communicatively inverted as efforts to protect free speech. The trope of civility is deployed by colonizing forces – in this case, sometimes across racial lines – as a tool to mark the limits to appropriate democratic speech and thereby label anti-colonial voices as extremist. Rana Jaleel describes the fear and anxiety that surrounds conversations on Israel-Palestine. She writes that when she outs herself as someone who teaches about Palestine, she receives one of two responses: “that’s brave; I avoid it like the plague” and “you are going to get in trouble.”¹⁰¹ “But teaching Palestine is not about bravery or troublemaking,” she continues. “It is about academic freedom – about the ability to conduct research and teach about a topic of global import without undue constraint.”¹⁰²

Jaleel expresses deep concern about the hypocrisy of those who oppose Boycott, Divestment, Sanctions (“BDS”) moves against Israel while espousing free speech principles. She describes how claims of antisemitism are weaponized by organizations such as Canary Mission in a manner that, at best, chills free speech and, at worst, actively stifles dissent.¹⁰³ Grappling with the historically complex and rich conversations around Palestine is important. However, as the pushback against academics including Saida Grundy, Johnny Eric Williams, Mark Lamont Hill, Reshmi Dutt-Ballerstadt, Priyamvada Gopal, Steven Salaita, and others demonstrates, the marketplace of ideas does not operate equally in all circumstances.¹⁰⁴ Across campuses globally, the trope of civility is used to manage even Palestinian critics of Israeli settler colonialism. We contend that marking critics of settler colonialism as extremists in as many cases as possible aids in the settler colonial project and makes it considerably more difficult to make any claims about Palestinian freedom.¹⁰⁵ While we have serious doubts about the efficacy and ethics of a marketplace of ideas that is operating optimally, we find such a marketplace of ideas completely unworkable when claims by the colonized are chilled due to fears of incivility. A number of scholars have taken up these very issues in First Amendment Studies, through critiques of civility and constraints on scholarly free speech.¹⁰⁶ We wish to see them and others continue to do so, especially in light of calls for “unity.”

These complex problems of free speech, race, and colonialism require equally nuanced redress. Drawing on a culture-centered approach (“CCA”), we suggest that turning to lessons emergent from anti-colonial resistance practices would be useful in conceptualizing a decolonial reading of freedom of speech and all that it entails.¹⁰⁷ The process of cultural centering fosters interventions into hegemonic structures by putting forth a praxis of listening. CCA offers a framework for co-creating voice infrastructures at the “margins of the margins”¹⁰⁸ as the basis for decolonizing the silences reproduced by (neo)colonialism. The voices at the subaltern margins, organizing to challenge colonial violence, offer registers for freedom rooted in decolonization. Seeing contemporary threads of occupation, violence, and silencing as continuations of the colonial projects of white liberalism, many of those peoples at the margins are best situated to imagine alternatives outside and beyond those entangled with whiteness. Historically across colonial formations, as colonial structures sought to repress dissent, resistive organizing emerged to challenge this repression, as in the cases of the responses to the Rowlatt Act and other sedition acts. Māori articulation of Tino Rangatiratanga, or absolute sovereignty, is one starting point for constructing new bases for freedom, from decolonizing frameworks.¹⁰⁹ The Kaupapa Māori movement for theoretical sovereignty offers rich conceptual basis for imagining freedoms, rooted in te mana o te reo (dignity of voice), manaaki tētehi ki tētehi (respect for each other), tino rangatiratanga (community ownership), and aroha ki te tangata (an outlook of love and respect).¹¹⁰ Because of the history of silencing of colonized voices through liberal strategies of governance, building registers for those whose freedom of speech and freedom of assembly is most vulnerable is necessary and pressing work. The last section situates the essays in this special issue as addressing these issues and providing a starting point for these conversations.

Situating race and coloniality in free speech conversations

The essays in this collection focus on the complex issues of race and coloniality that we introduce here, through interdisciplinary analysis of the structural and legal aspects of freedom of expression, in the US and globally. The interdisciplinary approaches they have chosen encourage readers to see free speech differently, as a set of cultural and communicative practices managed through lived negotiation and embodied protest, in and out of the courtroom. We read the essays as making compelling arguments for examining free speech from a variety of methodological, theoretical, and epistemological vantage points. There is much creative scholarly engagement to be done around freedom of speech and freedom of assembly, in contexts across the globe. These articles showcase a few of the many paths to doing such analyses, in ways that are novel but also build on existing scholarship. We divide the essays into three categories: those that interrogate the racial conditions and production of free speech and its kin in the United States; those that consider free speech’s relationship to the continuation of white supremacy in law; and those that consider free speech in the Global South, vis-à-vis complex systems of colonialism. The nine essays we include here develop the thoughts of scholars of color and activists of color as a means of producing new lines of flight in free speech scholarship. Their themes are interconnected, through axes of white liberalism and colonialism.

In the first section, Maggie Franz’s piece takes up the issue of freedom of assembly, through the material practices of the caravan. Drawing on themes that Hansford considers in the context of Latinx and Indigenous peoples, she contemplates the complex spatialities of gathering, including state attempts to discipline those who congregate at and cross the border. Her reading of freedom of assembly is grounded in rhetorical discussions of space and place.¹¹¹ The micropolitics of the border crossing caravans organized by Pueblos Sin Fronteras (“PSF”) reterrorialize geographical borders by articulating their own terms and rewriting hegemonic geographies.¹¹² The caravans refuse white articulations of the illegality of border crossing in favor of Indigenous imaginaries of the border. Franz contends that using rhetorics of caravan and caravana and adopting media practices that emphasize the rewriting of the border itself reasserts the right of colonized peoples, here Latiinx and Indigenous ones, to freedom of assembly over that of colonial white sovereigns.

Like Franz, Annie Hill draws on women of color feminisms, specifically Black feminism, in order to situate her reading of the violating phone calls that white women often make in order to police Black people in public spaces. Structurally speaking, these phone calls impose the type of obstacles to freedom of speech and freedom of assembly that Hansford describes in Ferguson. They also constitute a notable extension of the carceral state into the daily lives of Black people, who are already surveilled for merely existing in public. In a world in which Black people are subjected to such virulent anti-Blackness, the consequences of speaking and gathering freely are formidable. The weaponization of words that Hill identifies is a mechanism for maintaining those power relations that entrench white supremacy and denigrate Black people. Instead of resorting to additional carceral responses in managing the “calls to harm” through which white people attempt to impose their wills on Black people, Hill highlights the power of virality on the Internet to transform racist cultures themselves.

In the second section, three essays, those by E. Chebrolu, Amardo Rodriguez and Caitlin Carlson, interrogate the structural politics of whiteness in the context of free speech. Chebrolu takes a psychoanalytic approach to understanding white nationalism online, through engagement with literatures on anti-Blackness. White male motivations for freedom of expression, he maintains, are deeply grounded in the anti-Black fantasy of racial crisis. Through a close reading of Kevin MacDonald’s antisemitic rhetorics, Chebrolu shows that free speech operates as a mechanism for restoring white nationalist communities to a perceived racial wholeness that denigrates both Jewish peoples and Black peoples. Chebrolu’s analysis is powerful as both a psychoanalytic explanation for racist actions and a rewriting of Lacanian theories that are themselves frequently steeped in, at best, white narcissism and, at worse, white violence. We read his work as in conversation with scholars such as Fanon, Eng, and Han who are also concerned with writing psychologies of the colonized.¹¹³ Chebrolu’s arguments are also important contributions to conversations on social media deplatforming, which has come to the fore as a tool for containing virulent white nationalist hate speech.

Rodriguez questions the white liberal foundations of communication’s professional organizations through a close reading of the NCA Executive Committee Statement on conduct that promotes equity, diversity, and inclusion. His critique militates against “rigid radicalism,”¹¹⁴ which Carla Bergman and Nick Montgomery call “a fixed way of being and a way of fixing.”¹¹⁵ Positioning himself as a postcolonial scholar from the Global South, Rodriguez reminds us of the dangers of superimposing narratives onto diversity initiatives, by prescribing the end result before a process has unfolded. In this case, Rodriguez pushes against the production of artificial narrative coherence, calling instead for pluriversality and dissent. These calls recall the myriad ways that free speech has been weaponized in national and institutional contexts, while publicly performing narratives about equal rights. In a complement and counterpoint to Rodriguez, Carlson returns to those Critical Race Theory conversations about the harmful nature of hate speech by examining how hate speech operates as an obstacle to power. Her argument, which parallels that of Taslitz, seeks to understand how hate speech entrenches white, male, cisgender, heterosexual power. Specifically, Carlson articulates hate speech as a structural phenomenon, through which subordination is enforced and in under the guise of equality. Her remedy, like that of Delgado and others, is to create civil remedies that confront the structural power of hate speech and move the US toward true equity. Carlson’s appeals to feminist theory as a means of situating her critique remind us that women too continue to face considerable obstacles to freedom of speech and freedom of assembly, which scholars like Catherine MacKinnon and Kimberlé Crenshaw continue to write about in the context of equal rights.

The final set of essays, by Sangeetha Thanapal, Nga Hua Christine Elers and Pooja Jayan, Ashwini Falnikar, and Soo-Hye Han explore freedom of speech outside of the US. Their insights help us to trace the lines of flight around white liberalism and colonialism, as phenomena that continue to shape the contemporary experiences of people of color globally, with respect to freedom of expression and freedom of assembly. Thanapal draws on her anti-racist activist work to explore how hate speech laws are weaponized in Singapore to silence opposition to Chinese hegemony. In her genealogy of freedom of expression in Singapore, Thanapal shows how, though the nation has free speech rights, they originate from British colonial practices and therefore operate like the sedition laws that were violently enforced in colonial India. By marking the specific legal histories of free speech in Singapore, Thanapal aids in the project of recovering and centering the experiences of colonized peoples, historically and contemporarily. Legal interpretation, as Race Crits show, is often the site for the consolidation of white expertise, via technocratic language. The writing that Thanapal does here, then, is a powerful counterstorytelling practice in performatively occupying space within oppressive legal regimes. When read against the other essays in this section, Thanapal’s work makes evident the consistencies in colonial strategies of silencing and reveals paths to articulating new futures in which Indigenous peoples, in particular, cannot only survive but thrive.

Similarly, in their essay on free speech in Aotearoa, New Zealand, Elers and Jayan discuss how whiteness structures purportedly equal and expansive free speech rights for the purpose of realizing the fantasy of a homogeneously white state. The violence of colonization is rendered invisible through a narrative of equality that holds up white supremacy. At particular risk in the legal and cultural negotiations over free speech are the Maori and Pasifika peoples, whose experiences of the world are treated as secondary to those of white supremacist structures and leaders. As we discuss earlier in the introduction, the laws that suppress and silence the experiences of Indigenous peoples replicate colonial logics, without necessarily invoking the language of the civilizing mission. In the context of Aotearoa, Elers and Jayan propose decolonizing white liberal notions of freedom of speech in order to center those Indigenous peoples who are at risk of being erased.

Ashwini Falnikar writes about the suppression of free speech by the Hindutva regime in India. On one hand, discourses of hate have been integral to driving the revenues of neoliberal media outlets in India, which are complicit in the production of the politics of hate. On the other hand, the neoliberal media outlets’ discourses have worked alongside the Brahminical Hindutva state to silence spaces of dissent. In tracing the rise of Indian nationalism under the BJP, Falnikar showcases how the media served a protective function for those most likely to be oppressed by Hindutva sentiments, e.g., dalits and Muslims. Yet because of the colonization of independent media by statist free speech practices, journalists can no longer perform such protective democratic functions. For Falnikar, Indian journalism requires epistemological revision, that allows for restoration of its watchdog function. The pressing problem that she highlights is one that is evident worldwide, as independent media is bought out by larger conglomerates and monopolized by authoritarian leaders, even in democratic nations.

Finally, Han turns to a central site of controversy in discussions over free speech: art. In her study of “Statue of a Girl of Piece,” a three-dimensional sculptural work that remembers and marks the histories of so-called “comfort women,” she shows how the Japanese government, in an act of considerable hypocrisy, shut down the exhibit while also doing nothing about hate speech directed at ethnic minorities in the nation. The conflict that Han identifies is reminiscent of those over obscenity in the United States in the 1980s and 1990s. This is perhaps no surprise given that the Japanese approach to free speech is heavily influenced by American approaches to the same. Even as a nation whose post-World War II experiences of occupation are quite contemporary as compared to India, Singapore, and New Zealand, Japan was influenced significantly by white liberal discourses of freedom of speech and concomitant silencing. The essay brings us full circle, showing us how the United States’ approach to freedom of speech fits within larger conversations about civil rights. Together these essays do considerable work in setting forth an agenda for a new era in freedom of speech and freedom of assembly scholarship.

Notes

1. Matsuda et al., “Introduction, 14.”

2. Delgado, “Words That Wound.”

3. Matsuda et al., 1.

4. Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus.”

5. Matsuda et al., “Introduction,” 8.

6. Matsuda et al., 8.

7. Matsuda, “Public Response to Hate Speech: Considering the Victim’s Story”; Meija, Beckermann, and Sullivan, “White Lies.”

8. Matsuda, 26–31.

9. The Editorial Board, “Call It ‘Coronavirus.’”

10. Haney-López, Dog Whistle Politics.

11. Trump, “Executive Order on Preventing Online Censorship.” Though this essay was written prior to January 6, 2021, we note that our observations about Trump and, indeed, the state of free speech in America, are even more timely now.

12. Shiffrin, What’s Wrong with the First Amendment?

13. Schwartz, “Trump Tells Agencies To End Trainings On ‘White Privilege’ And ‘Critical Race Theory.’”

14. Crenshaw et al., Critical Race Theory.

15. Harris, “Whiteness as Property.”

16. Gander, “Justice Scalia and the R.A.V. Mystery.”

17. Smith, “Circumventing the ‘True Threat’ and ‘Viewpoint’ Protection Tests to Deal with Persistent Campus Hate Speech.”

18. Arneson and Dewberry, “Mapping Free Speech Scholarship in the Communication Discipline,” 200–1.

19. Delgado, “The Imperial Scholar.”

20. Shome, “Postcolonial Interventions in the Rhetorical Canon”; Chakravartty et al., “#CommunicationSoWhite.”

21. Shome and Hegde, “Culture, Communication.”

22. Murray, “Words That Wound, Bodies That Shield,” 33.

23. Amsden, “Rhetorical Interventions in the Law.”

24. Garden, “The Deregulatory First Amendment at Work.”

25. For a discussion of the silencing of speech in the US, see Smith, Silencing the Opposition.

26. Gopal, Priyamvada. Insurgent Empire: Anticolonial Resistance and British Dissent.

27. See note 1 above.

28. Curtis, “Inequality in the Market for Speech.”

29. Tuck and Yang, “Decolonization Is Not a Metaphor”; Flores, “The Rhetorical ‘Realness’ of Race, or Why Critical Race Rhetoricians Need Performance Studies.”

30. Cole, “The ACLU’s Longstanding Commitment to Defending Speech We Hate.”

31. Hudson Jr., “Center Stage for the First Amendment.”

32. Matsuda, “Public Response to Hate Speech: Considering the Victim’s Story, 32.”

33. Fish, “Boutique Multiculturalism, or Why Liberals Are Incapable of Thinking about Hate Speech.”

34. Fish, 380–1.

35. Fish, 381.

36. Arneson, “Considering Social Divisiveness.”

37. Kozlowski, “Content and Viewpoint Neutrality.”

38. Delgado, “Words That Wound”.

39. Delgado, “Words That Wound.”

40. Tsesis, “The Boundaries of Free Speech Book Reviews, 155.”

41. Solorzano, Ceja, and Yosso, “Critical Race Theory, Racial Microaggressions, and Campus Racial Climate.”

42. Carbado and Gulati, Acting White?; DiAngelo, White Fragility.

43. Dyer, White.

44. Eng and Han, Racial Melancholia, Racial Dissociation.

45. Roberts, Fatal Invention.

46. Delgado, “Words that Wound.”

47. Taslitz, “Hate Crimes, Free Speech, and the Contract of Mutual Indifference Symposium, 1285.”

48. Mills, The Racial Contract.

49. Taslitz, “Hate Crimes, Free Speech, and the Contract of Mutual Indifference Symposium,” 1393.

50. Taslitz, 1397.

51. Freeman, “Legitimizing Racial Discrimination through Antidiscrimination Law.”

52. Sidahmed, “Ruth Bader Ginsburg.”

53. Sidahmed.

54. Tsesis, “The Boundaries of Free Speech Book Reviews,” 153.

55. Many would contend that this very limitation on the basis of employment was a manifestation of the plantation style labor politics of National Football League, particularly when read in contrast to the National Basketball League. Boylorn, “What Marshawn Lynch and Richard Sherman Teach Us About Respectability & Black Masculinity.” Both of these examples highlight how free speech and market demand is limited by a phenomenon that Johnson calls “market racism.” Johnson, 2009. In this instance, the employment constraints on Kaepernick are not incidental. They are produced by the racism of the market that both wishes to display and constrain Black NFL players.

56. Tsesis, “The Boundaries of Free Speech Reviews.”

57. Hartman, Scenes of Subjection.

58. Hansford, “The First Amendment Freedom of Assembly as a Racial Project.”

59. See note 4 above.

60. See note 58 above.

61. McKanders, “Sustaining Tiered Personhood.”

62. See note 58 above.

63. Brooks and José Muñoz, “Open Channels, 63.”

64. Guggenheim, “The Indians’ Chief Problem.”

65. Tam, “The Slants to NAPABA.”

66. Vats, The Color of Creatorship: Intellectual Property, Race, and the Making of Americans. In this, we refuse to accept that the recent decisions by corporations to change their racist trademarks constitute a success of the marketplace of ideas. Given the time that it took for these companies to change their positions and the recalcitrance with which they did so, we contend that recent battles over brands such as Aunt Jemima only demonstrate the propensities of the marketplace of ideas to fail.

67. Mills, Charles W. “Racial Liberalism.”

68. Mills, Charles W. Black Rights/White Wrongs, xiii.

69. Darnton, “Literary Surveillance in the British Raj,” 4–5.

70. Bhandar, Colonial Lives of Property.

71. Lal, 1998; Dossa, “Liberal Imperialism?”; Drayton, Nature’s Government.

72. Dutta, “Decolonizing Communication for Social Change, 124”

73. Case, The Relentless Business of Treaties.

74. Case.

75. Bhandar, Colonial Lives of Property; Karuka, Empire’s Tracks.

76. One example of this is Johnson v. McIntosh (1823), a case in which the US Supreme Court determined that title to land originating with the US government was superior to that originating with Native peoples.

77. Losurdo, Liberalism.

78. Gopal, Insurgent Empire.

79. Harris, “Whiteness as Property,”; Dutta, “Decolonizing Communication for Social Change.”

80. Dutta, “Decolonizing Communication for Social Change”; Dutta, Communication, Culture and Social Change.

81. Losurdo, Liberalism; Mills, “Occupy Liberalism!”; Mills, Black Rights/White Wrongs.

82. Gopal, 2019.

83. Darnton, “Literary Surveillance in the British Raj.”

84. Ram, The Jallianwala Bagh Massacre.

85. Wagner, Amritsar 1919.

86. Bose and Lyons, “Dyer Consequences, 203.”

87. Ram, The Jallianwala Bagh Massacre; Bose and Lyons, “Dyer Consequences”; Collett, The Butcher of Amritsar.

88. Losurdo, Liberalism; Mills, “Racial Liberalism.”

89. Karuka, Empire’s Tracks.

90. Padel and Das, “Cultural Genocide and the Rhetoric of Sustainable Mining in East India.”

91. Berda, “Managing Dangerous Populations.” This is evident in the National Register of Citizens (“NRC”) and Citizenship Amendment Act (“CAA”) as well.

92. Chattarji, “Student Protests, Media and the University in India.”

93. Suresh, “The Slow Erosion of Fundamental Rights.”

94. Bhan and Duschinski, “Occupations in Context – The Cultural Logics of Occupation, Settler Violence, and Resistance.”

95. Berda, “Managing Dangerous Populations.” Consider, as well, the continuity of colonial era surveillance, policing, and incarceration to silence dissent in Palestine, where anti-colonial struggles are repressed through the ideological apparatus of democracy, human rights, and liberty. Seidel, “Sovereign Bodies, Sovereign States.”

96. Rajah, Authoritarian Rule of Law.

97. Walker, “The Genesis of Maori Activism.”

98. O’Connell Rapira, “Free Speech as a Cover for Hate.”

99. Dutta-Bergman, “Civil Society and Public Relations.”

100. Thiranagama, Kelly, and Forment, “Whose civility?”

101. Jaleel, “Teaching Palestine | AAUP.”

102. Jaleel.

103. See note 99 above.

104. Discussing the particulars of these cases individually is beyond the scope of this essay. However, we cite these cases in order to highlight the consistency with which Israel-Palestine conversations are managed through the mobilization of free speech language.

105. Mohan has personally experienced these effects, in blogging and tweeting against Israeli atrocities and in solidarity with the African American communication scholar Mark Lamont Hill, who was targeted in response to his powerful speech in solidarity with Palestine at the United Nations. Mohan has, among other things, been labeled an extremist by the Israel Institute of New Zealand. David Cumin, author for the Israel Institute of New Zealand, created a Facebook page labeling Mohan an extremist, retweeted the Vice Chancellor of the University with his tweet, and sought to advocate to the university structures in what appeared to be efforts to silence Mohan’s voice witnessing Israeli settler colonialism. Cumin notably is also a key member of the NZ Free Speech Coalition. The Free Speech Coalition is a New Zealand organization that emerged in the backdrop of the Auckland Council’s decision to deny a venue to the white nationalists Lauren Southern and Stefan Molyneux. The Free Speech Coalition also played a key role in mobilizing against the Vice Chancellor of Massey University because of the University’s decision to cancel a talk by the racist Don Brash (covered in Elers and Jayan).

106. Cloud, “‘Civility’ as a Threat to Academic Freedom”; Macek, “The Perilous State of Academic Freedom in the Twenty-First Century”; Abraham, “Conceptualizing Academic Freedom After the Salaita Affair.”

107. See note 72 above.

108. Dutta, Communication, Culture and Social Change.

109. Durie, 2013.

110. Smith, “Kura Kaupapa Maori: Contesting and Reclaiming Education in Aotearoa.”

111. Sharma, “Taxi Cab Publics and the Production of Brown Space After 9/11.”

112. McInnis, “Black Women’s Geographies and the Afterlives of the Sugar Plantation.”

113. For a book review review of current literatures addressing anti-Blackness, psychology, and decolonization, see Lisa Corrigan’s history of these topics. Corrigan, 2019.

114. Bergman and Montgomery, “The Stifling Air of Rigid Radicalism.”

115. Bergman and Montgomery.