Can America Make Racism Illegal? - OZY | A Modern Media Company

Can America Make Racism Illegal?

Can America Make Racism Illegal?

By Sean Braswell

George Floyd's niece Gabrielle Thompson (C) cries as she hugs another woman during a "Justice for George Floyd" event in Houston, Texas.
SourceMARK FELIX/Getty


Because America needs to do a better job of deterring racism.

By Sean Braswell

  • New bills make it easier to charge those who enforce the law with breaking existing civil rights laws.
  • Laws could be passed to try to curtail hate speech, including racist speech, which currently enjoys broad protection in U.S.

The recent Black Lives Matter protests across the United States have again highlighted the argument that even in 2020 the American legal system still does not adequately prevent harmful actions taken on the basis of race. 

Civil rights laws already protect Americans from being discriminated against on the basis of race in public accommodation, employment, housing, schooling, voting, military service and more. And racially motivated hate crimes are against the law. But is there more that the law could do to help prevent racism and its harmful effects, especially in the context of law enforcement, in the U.S.?  Here are a few proposals that have been made to expand the law’s ambit in cases involving racial animus.

End Protections That Shield Law Enforcement From Civil Rights Violations

One of the first ways to combat racism under the law is to make it easier to charge those who enforce the law with breaking existing civil rights laws. Recently, U.S. representatives Joseph P. Kennedy III (D-Mass.) and Hakeem Jeffries (D-N.Y.) introduced a bill in Congress to make it easier for police to be charged with civil rights violations. The bill changes just one word in the federal code. It would require prosecutors in police brutality cases to prove not that the officer acted “willfully” in depriving an individual of their rights, but only “recklessly,” a much lower evidentiary threshold that would likely make it easier to bring such actions and produce convictions, including in cases involving racially motivated conduct.

U.S. Rep. Ayanna Pressley (D-Mass.) has also introduced a bill in Congress that would eliminate the legal doctrine known as qualified immunity, which helps shield police officers and other government officials from lawsuits involving civil rights violations, a move that was quickly endorsed in a letter to Congress from more than 1,400 current and former professional athletes, coaches, and front-office personnel spanning the NFL, NBA and MLB.

Eliminate Protections for Racist Hate Speech

The broad protections afforded by the Constitution’s First Amendment actually make the U.S. an outlier when it comes to free speech. In the wake of widespread anti-Semitism during World War II, most Western nations passed laws to curb the incitement of racial and religious hatred, and such incitement is outlawed in most liberal democracies today. In America, according to the Supreme Court’s decision in Brandenburg v. Ohio (1969), only speech that directly incites “imminent lawless action” (or is likely to do so) can be restricted, which means that most hate speech, including racist speech, is protected. 

In an age in which social media provides racists with a powerful platform for spreading hate and inciting violence (which is usually not “imminent”), America’s rather anomalous protection of such speech provides shelter that racists do not find in other nations. But First Amendment holdings are hard to reverse or curtail, especially one like Brandenburg that is now over half a century old. Even if Congress felt motivated to enact laws that would combat racially motivated hate speech, says Daniel Urman, a law and policy expert at Northeastern University, it is unlikely that the current Supreme Court, which has been highly protective of speech in other cases like Citizens United, would modify the Brandenburg standard.

Make Racist Voting Illegal

Finally, one somewhat wilder idea for combatting racism, this time at the ballot box, comes from Terry Smith, a visiting professor at the St. Thomas University School. In his book, Whitelash: Unmasking White Grievance at the Ballot Box, Smith argues that racist voting should be illegal, and there is some precedent for doing so. Smith observes that the National Labor Relations Board can already invalidate elections in which one side makes racist appeals, and in a recent case (Peña v. Rodriguez, 2016), the Supreme Court held that a jury’s verdict could also be invalidated when a juror expresses overt bigotry. It’s a provocative idea, even if determining whether an individual voter’s choices were motivated by racial animus could be challenging to say the least. 

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