Absorbing Power: The Courts and Hate Speech

In Judith Butler’s ‘Burning Acts, Injurious Speech’, she references the case of R.A.V. v. St. Paul to illustrate the ways in which the courts reabsorb power to incite violence. In this case, a white teenager from Minnesota, burned a cross in front of a house occupied by an African-American family. The defendant was charged and eventually convicted, by the St. Paul City Council in 1990, making it an offence to communicate racially offensive messages. The United States Supreme Court reversed the State Supreme Court decision. One of the most baffling aspects of Butler’s comments on this case, relates to the way in which the court’s use of language transformed the act of burning the cross on an African-American family’s property to the following – “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible” (the words of the majority opinion of the court). This transformation of language strips away any contextual meaning, and denies the racist history of the act of cross burning. John Onyando stated that “there is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics”, and I would have to agree with this. Butler’s example, serves as a constant reminder, as with all of the themes discussed throughout the LW928 module – the imaginary, legal fictions, and performativity, that law’s power reigns. In law’s quest to punish those who spread racist, transphobic, or otherwise out-of-fashion speech, it denies the weaker members of the community e.g. the poor, political minorities, and women, of the protection it claims to afford.