Article 2 – The Expressive Paradox: How Free Speech and Racial Minority Protest Perpetuate Stereotypes in America – By Andrew Sternoff


Andrew Sternoff*

I. Introduction

People use stereotypes to help create dominant narratives and to inform their understanding and basic principles of the functional role individual groups play within society.  When individuals participate in events that deviate significantly from the traditional stereotype, people dismiss those events as atypical for the group.  Active racial protest is often seen as deviating from traditional stereotypes and narratives leading observers to view the protests and protestors with skepticism.  In brief, people find comfort in stereotypes because their common images are used to make sense of the world.  The tragedy of this comfort is that society rejects the events and the people participating in those events that do not conform to the stereotype.

Depending on the period of American culture, African Americans have been stereotyped differently.  For example, during the period of their enslavement, African Americans were portrayed as docile and obedient to allay the White society’s fears of their attempt to revolt.[1] After emancipation, they were depicted as savages in need of domesticity and culture.  Later, Blacks were characterized as passionate and talented, musically gifted and interesting.  Even later still, they were stereotyped as militants, style creators, innocuous television characters, and gang members.  Similarly, Mexican Americans have historically been stereotyped as banditos, greasers, lackeys, and illegal immigrants.[2]

The temptation is to think that countervailing texts may provide a normalizing effect on negative stereotypes because the stories and images of these texts portray characters as average or even heroic.  However, this belief is simplistic; the open dialog and countervailing texts do not automatically lead to a reduction in racism.  Scholars are starting to suggest that systems of free speech are positive in connection with small, clearly bounded disputes, but do not always help to correct systemic social ills such as racism.[3] Furthermore, free expression may exacerbate racism because speakers are permitted to feel somewhat irresponsible for their actions.[4] An empathic fallacy, “the belief that we can somehow control our consciousness despite limitations of time and positionality,” can easily impede efforts for reform, and create a system of free speech that ends up deepening racism, rather than correcting it. [5]

Civil rights protests have a prominent and storied past in the United States.  In the first half of the 1960’s, the Supreme Court routinely and enthusiastically protected nonviolent speech particularly in the form of the “sit-in.” [6] Tolerance of nonviolent speech fits well into the stereotype of African Americans as docile and obedient.  As Derrick Bell observes, courts tend to tolerate protests if mainstream society believes that the cause is just, that the protest is relatively peaceful, that it does not occur on a sacred area, and that it does not significantly interfere with business as usual.[7] In Letter from Birmingham Jail, Martin Luther King Jr. outlines four essential steps to an effective nonviolent demonstration: “collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action.”[8] Bell and King put forth ideologies that fit neatly into the docile and obedient African American stereotype.

While King Jr.’s paradigm characterized demonstrations during the time of the Cox decision, the stream of race riots in the late 1960’s and other violent disturbances led to a dramatic shift in the way society viewed and treated racial protests.[9] By the time of the Supreme Court’s 1967 decision of Walker v. City of Birmingham,[10] protests had become more violent.  A gradual shift in Supreme Court jurisprudence can be seen from tolerance of free speech to the creation of obstructions to prevent protests.  Such obstructions include court rulings designating certain places as off-limits to protesters and refusing to grant review for violent protests.[11] In Walker, the Court found that the laws used for restoring peace and order trump First Amendment protection.[12] The stereotype of African Americans as “barbarians” returned, and the law resumed its function as a “civilizing hand” for controlling the unruly.

The tension and historical friction between permitting free speech and racial protest has resulted in the “expressive paradox.”  The “expressive paradox” occurs when peaceful protests or properly filed petitions—constitutionally protected speech—do not receive any consideration, but illegal protests subjecting participants to possible legal repercussions do receive the desire attention.  As a result, the notion of “interest convergence,”[13] that Blacks only receive social advances simultaneously benefiting Whites, often necessitates active, raucous protest to convince Whites to grant concessions.  This paper will demonstrate that these forces make “original narrative dissent” extremely difficult even in a society that ostensibly embraces and encourages free speech.

As Walker demonstrated, courts only protect speech that is nonviolent and non-disruptive.[14] To be effective, civil rights leaders must risk arrest and entanglement with the legal system.  As Audre Lorde once famously said, “the master’s tools will never dismantle the master’s house.”[15] Consequently, protesters have been faced with the dilemma of either operating within a historically oppressive system, or demonstrating outside the system and risking arrest.

Part II of this paper examines the historically negative imagery of African Americans and Mexican Americans in society, describes a brief overview of nonviolent and disruptive civil rights protests by these racial minorities, and explains societal reaction to these protests.  In addition, this part analyzes the commonly held notion that the First Amendment is a panacea for racial ills and the countervailing “realist” view that racism is indelible.  Part III of this paper examines progressive tactics, such as promoting non-racist free speech and ameliorating racism and racial stereotypes through early education, legal action, lobbying, and boycotting.

Although the racial majority pays lip service to the First Amendment by encouraging minority protests, only docile and non-threatening racial protests are tolerated.  When racial protests become too lively or brazen, traditional negative racial stereotypes are revealed.  These stereotypes are reinforced until they ultimately guide the interpretation of the situation.  This paper aims to show that active racial protests generally lead to the reinforcement of negative racial stereotypes.  To resolve this predicament and maximize their effectiveness, solutions need to be subtle.  Some potential tactics for resolution of this issue will be revealed in this paper, but the “expressive paradox” often frustrates any possible solutions.

II. History of Racial Stereotypes and Dissent

A. African American Stereotypes

Beginning in the late 18th century, African Americans appeared in literature and theater as lazy, illiterate, and docile.[16] Minstrel shows popularized the “comic Negro” stereotype, which depicted African Americans as utter buffoons speaking nonsense with an impossibly sanguine demeanor.[17] Thus, the “comic Negro” stereotype vanquished any alleged Black threats invented by Whites.[18] By the 1830’s to 1840’s, minstrel shows featuring Whites in a black face became immensely popular and further perpetuated the “comic Negro” stereotype.[19] Characters such as Jim Crow depicted an elderly dancing Black man being impersonated by a White actor in a black face.[20] This caricature gained increasing popularity and is potentially responsible for informing Northern White Americans about the derogatory depictions of African Americans.[21]

By the mid-19th century, American society slightly modified the Black stereotype.  In 1852, Uncle Tom’s Cabin, the abolitionist novel by Harriet Beecher Stowe was published.[22] This book marked the beginning of the stereotype that Black men were tragic and pious, as opposed to comical and asinine.[23] At this same time, Black women appeared as “mammies” who cooked, cleaned with alacrity, and put their white masters’ welfare above their own.[24] African Americans were no longer depicted as happy-go-lucky oafs; however, they were not endowed with much substance either.  During the Reconstruction era, particularly from 1860 to 1880, Black males were portrayed as bestial, sexual figures posing a risk to White women and society.[25] During the Jim Crow era from the 1890 to 1920’s, African American stereotypes were still poor and continually depicted as threatening.[26] D.W. Griffith’s 1915 film, Birth of a Nation, emphasizes this stereotype by portraying a feral-looking Black man chasing a White woman off a cliff.[27]

Disheartened by racist treatment in World War I, African Americans returned home and rioted in the North.[28] As a result, Whites resurrected the stereotype that Blacks are barbarous and uncivilized.[29] While World War II provided a temporary respite from racism due to the need for Blacks’ service, post-World War II society produced multiple new stereotypes.[30] African Americans involved in the civil rights movement were stereotyped as militant and impudent.[31] Yet, other African American subsets emerged as innocuous and friendly, similar to the docile slave stereotype of the later 18th century.[32]

Furthermore, other African Americans appeared in the media as hip, street savvy “cats,” popularized by the “Blaxploitation” film genre and characters such as Shaft.[33] More recently, movies such as Menace II Society,[34] and television shows such as The Wire,[35] portray young Black males as gang members, drug dealers, rap stars, and criminals, and their female counterparts as uneducated, teenage Black single mothers.[36] While these stereotypes are fictitious and unfounded, they continue to pervade American media and inform people’s dominant narratives.

B. Mexican American Stereotypes

Mexican Americans have historically appeared in imagery as banditos, greasers, or easy-going, carefree musicians.[37] More recently, Mexican Americans have been stereotyped as immigrant farm workers, unable to speak English and in America illegally.[38] During and after the Mexican American war from 1846 to 1848, the “Western” film genre popularized the “bandito” stereotype as devious Mexican American desperados whom the white settlers heroically removed from their land.[39] On the heels of the “bandito” stereotype was the “greaser” and “musician-companion” stereotypes.[40] Similar to the stereotype of freed African American slaves in post-Civil War society, greasers were deviant thugs posing a threat to White women.  In contrast, the “carefree” Mexican American was jovial and loyal, and appreciated simple things such as playing the guitar and enjoying gastronomical pleasures.

In the beginning of the 20th century, a surge of Mexicans immigrated to the United States.[41] White Americans resented this insurgence and moved to oppress these individuals.[42] World War II brought the need for labor, which resulted in a minor respite of anti-Mexican American sentiment; however this negative viewpoint was not entirely abandoned.[43] “Western” films and other media still perpetuated the “bandito,” “musician-companion,” and “greaser” stereotypes.  Today, the most pervasive Mexican American stereotype is the “illegal immigrant” who fails at American societal assimilation and leaches off the system.  Studies have shown that this stereotype is exceedingly pernicious because an overwhelming majority of U.S. illegal immigrants are of Mexican descent.[44] This depiction has exacerbated racial tensions, caused the formation of anti-immigration groups—such as the Arizona Citizens Militia,—and instigated a wave of state and local anti-immigrant measures.[45]

C. History of African American Protest

Beginning in 1955, African Americans began a series of nonviolent, “coercive” protests that took the form of organized marches, boycotts, and sit-ins.[46] The Montgomery Bus Boycott of 1955 was an early manifestation of peaceful protest.[47] Montgomery’s public transit system mandated segregation on their buses, with the front of the bus designated to Whites and the back of the bus designated to Blacks.[48] After Rosa Parks’ arrest for refusing to give up her seat to a White person, Blacks in Montgomery participated in a peaceful boycott of the local transit system for one year.[49] The boycott resulted in a significant economic loss for the transit system.[50] Eventually, Rosa Parks’ arrest resulted in the landmark case, Gayle v. Browder, in which the Supreme Court upheld a district court ruling that ended segregation on city buses.[51] Thus, the Montgomery Bus Boycott was an early apotheosis of effective nonviolent protest.[52]

The “sit-in,” another form of effective nonviolent protest, began to take shape beginning with the Greensboro, North Carolina lunch counter sit-in of February 1960.[53] Sit-ins reached the Supreme Court in Boynton v. Virginia,[54] in which the Court reversed the trespassing conviction of a Black law student for peacefully refusing to leave the “Whites only” section of a restaurant.[55] This decision indicated that the Court would tolerate nonviolent protest; however, racism still persisted, especially in the South.

The Court’s tolerance of nonviolent protest became more overt in the Cox v. Louisiana decision, in which the Court overturned Reverend B. Elton Cox’s conviction of disturbing the peace, obstructing public passages, and picketing a courthouse.[56] Noting that Cox had protested peacefully,[57] the Court reaffirmed its prior tolerance of nonviolent protest, and expressed concern over potential violent protests.[58] The Court’s strong disapproval for unruly protests continued to appear.  In Brown v. Louisiana, the Court reversed an earlier conviction of breaching the peace for the demonstrators of a public library that forbade the entrance of African Americans.[59] While exonerating the protesters, the Court expressed concerns that the protest occurred at a “hallowed place,” which ”bore the ugly stamp of racism”[60] The Court’s decisions during this period demonstrated their consideration of protesters’ tactics and venue, and their tolerance of  nonviolent protest as long as a “hallowed place” was not involved.[61]

In Walker v. City of Birmingham, the Supreme Court again demonstrated their growing discontent with disruptive protest.[62] Martin Luther King Jr. and other demonstrators had been convicted of contempt for violating an injunction prohibiting scheduled marches on Good Friday and Easter Sunday.[63] In reaffirming the conviction of King Jr., the majority studiously ignored the injunction’s unconstitutionality, and instead, specifically focused on the need to maintain order and peace.[64] Moreover, the Court explicitly referred to the law as a “civilizing hand” that can help restore order.[65]

After Brown and Walker, the Court clearly identified two primary functions of the law.  First, the law was required to protect “hallowed places,” such as libraries, churches, and schools.[66] Thus, the mere threat of a disruption at a library in Brown guided the Court’s decision accordingly.[67] Secondly, the law was a “civilizing hand” in direct opposition to black barbarism.[68] The Court’s Walker decision was a manifestation of its intention to use the law as a force to restore order.[69] Additionally, the Court appeared to tacitly balance the amount of disruption a protest caused against the significance of the wrong engendering the protest.[70]

D. Reaction to African American Protest

Whites became more resentful towards Black protest as paranoia about the potential ramifications of protests became more widespread.  Bell observed that society and the courts blamed the protesters regardless of their genuine culpability for disruptions.[71] In a 1968 N.Y Times magazine article, Nine Men in Black Who Think White, NAACP attorney Lewis Steel observed, “White America . . . decided that demonstration and riots were synonymous.”[72] Thus, Whites began interpreting any protest form as disruptive and riotous, if a particular economic or political interest was threatened.  Moreover, the courts began considering Black boycotts as tantamount to violent protests, similar to their view of early labor union boycotts.[73] This view was certainly prevalent in the South, but Whites in the North generally sympathized more with African Americans’ plight, unless the protesting disrupted “business as usual.” [74]

Reaction to Black protest can be divided into three parts: police; White society; and the courts.  Police generally responded to protests by harassing, beating, and arresting demonstrators.  White society responded through economic and physical coercion.[75] Finally, the courts would tolerate and vindicate protesters if they were advocating a legitimate cause, and not demonstrating at a “hallowed place,” disrupting “business as usual,” or protesting violently.  Thus, Blacks were “damned if they did, damned if they didn’t” because Whites left very few protesting options.  Although Blacks were somewhat discouraged, if not explicitly deterred, from conducting protests, they were taken seriously only if their protests were disruptive and resulted in possible arrest.  Due to their resentment of active protest, Whites deployed and relied on stereotypes to justify the incongruity.  In effect, Whites’ unresponsiveness to peaceful African American civil disobedience pushed the civil rights movement to employ more disruptive protests.  Subsequently, Whites were propelled to resent any form of African American protest and to stereotype Blacks as uncivilized.

E. History and Reaction to Mexican American Protest

The Sleepy Lagoon incident of 1942 began a wave of racial tensions between Whites and Mexican Americans.  During this incident, a Mexican boy was found dead and prosecutors avidly ensured the public’s perception of the defendants as gang members.[76] As Whites and more-established Mexican Americans accepted this gang member stereotype racial tensions flared.[77] Tensions spread again during the 1943 “Zoot Suit”[78] riots of Los Angeles, which involved the targeting and beatings by American servicemen of young Mexican Americans wearing flamboyant garb.[79] White society reacted to the “Zoot Suit” riots with shock and disgust, but concentrated their blame on Mexican Americans.[80] The media labeled the protesters as “Mexican goon squads” and “marauding Latin gangs.”[81] According to the dominant narrative, society’s resulting depiction of Mexican Americans post-Zoot Suit riots was predictable; Mexican Americans were commonly portrayed as gangsters, provoking and deserving beatings by American servicemen.

Two decades later, César Chávez implemented the nonviolent protest approach advocated by Martin Luther King, Jr., and accepted by White society.  A prime example of Chávez’s approach was the Delano Grape Strike, beginning in 1965 and lasting over five years.[82] The United Farm Workers (UFW), a mix of Filipino and Mexican American laborers led by César Chávez, were unhappy with unequal pay and thus, performed a series of nonviolent protests against the California table grape growers.[83] Chávez began in 1966 with a combination of marches and boycotts, conducted his own hunger strike in 1968, and finally ended the strike with a collective bargaining agreement between the UFW and grape growers in 1970.[84] Chávez’s nonviolent, pious tactics earned him acceptance from White society, and the support and friendship of Robert F. Kennedy and a number of Hollywood figures.[85]

In the late 1960 and 1970’s, the “Brown Berets” formed and started to model their behavior based on the “Black Panthers” movement.[86] The “Brown Berets” movement took shape after the 1968 East L.A. Walkouts.  For this event, the Brown Berets organized the walkouts of Chicano high school and college students from their schools to protest unequal schooling conditions and violations of Chicano civil rights.[87] The walkouts were moderately successful and provided an impetus for pursuing further political action.[88]

From 1968 until 1971, the Brown Berets also organized a Chicano anti-Vietnam War movement called the Chicano Moratorium.[89] The anti-war movement peaked at an East Los Angeles rally in late August of 1970, when 20,000 to 30,000 protesters began marching.[90] The rally began peacefully, but soon turned chaotic when police intervened, deeming the protest to be an illegal assembly.[91] Police spread canisters of tear gas, arrested over one hundred protesters, injured many, and killed three.[92] Some protesters began to fight back by burning stores and defiantly resisting police.[93] Although police instigated the violence against the demonstrators, the media portrayal depicted the protestors initiating the incident.[94]

The student organization, MEChA, has been accused of using violent tactics to demand immigration reform and academic equality.[95] In 1993, the group caused $500,000 worth of damage to the UCLA campus while protesting for the creation of a Chicano studies department.[96] During a 1996 protest for immigration reform, MEChA group members were allegedly caught on videotape beating Black and White protestors.[97] Such actions have caused the group to be portrayed as violent and “radical.”[98]

In 2006, millions gathered throughout the United States to protest proposed immigration reforms.[99] The proposed reforms would have designated the crime of felony to any illegal immigrant or anyone helping an illegal immigrant remain in the U.S.[100] Although the protests were mainly peaceful, many protesters were angry and brandished portraits of Che Guevera and Mexican flags,[101] which prompted the predictable anti-American accusations by opposing groups.  One such group called the “Border Guardians” burned a Mexican flag in front of the Mexican Consulate in Tucson, Arizona.[102] Many Mexican American crowd participants protested the flag-burning by amassing thousands more.  Ultimately, the protest turned violent after demonstrators witnessed police arrest a girl for throwing a water bottle at a “Border Guardian” member.[103] In the aftermath, many protesters were doused with pepper spray and several were arrested.[104]

An examination of societal reaction to and media portrayal of Mexican American protest is helpful when discussing the expressive paradox.  Society is much more sympathetic and eager to understand the cause of Mexican American discontent when viewing depictions of nonviolent Mexican American protest or gentle interactions between Mexican Americans and Whites.  An example of an acceptable method to voice opinions can be seen in Figure 1, which shows the cover of Steven W. Bender’s insightful study, One Night in America.[105] Yet, when faced with an image of active Mexican American protest, White society is likely to react differently.  For example, Figure 1 also includes an image of the 2006 immigration marches, which shows Mexican American protesters gathered en masse and waving Mexican flags.[106] Images such the one in Figure 1 generated criticism that the demonstrators were anti-American and dangerous.[107] A juxtaposition of the two aforementioned photographs illustrates how the majority is willing to tolerate nonviolent, passive protest, but will employ stereotypes when protest becomes active and disruptive.

Figure 1[108]

F. Native American Stereotypes and Reaction to Protests

Early colonists came to America with a romanticized version of Indians as innocent and friendly.[109] Writings from this period portrayed Indians either as “Indian Princesses” or “loyal sidekicks.”[110] However, relations turned violent when Indians refused to acquiesce to settlers’ demands and vacate their land.[111] Consequently, Indians were stereotyped as savages, cannibals, and uncivilized beasts in both fiction and film.[112] The “Western” film genre particularly glorified images of Indians as drunks, raiders, and volatile natives waiting to rape White women and scalp White men.[113] After World War II, Hollywood presented the “noble savage” image, which damaged the public’s perception further.[114] Thus, Native Americans have been stereotyped similarly to Blacks and Mexican Americans, depending on how these groups needed to fit into the dominant narrative.

Native American protest originally began as nonviolent movements and grass roots attempts at effectuating change through traditional channels.  In the early 20th century, organizations such as the Society of Americans gained support from both Indians and non-Indians due to their emphasis on nonviolent protest and focus on self-determination.[115] Similarly, the National Congress of American Indians (NCAI) won broad acceptance largely due to their dedication to conservative avenues for change, such as political pressure, media exposure, and the legal system.  Though NCAI was concerned with gaining attention for their cause, a policy of non-protest was adopted and members would carry banners reading, “Indians Don’t Demonstrate.” [116]

Unimpressed by the progress and tired of the traditional tactics used by previous activist groups, the American Indian Movement (AIM) represented an ideological change in Native American activism by employing a more aggressive approach to protest.  AIM seized the Washington D.C. Bureau of Indian Affairs in 1972 and captured the town of Wounded Knee, South Dakota in 1973 for seventy-one days.[117] When the siege was over, two were dead and two was wounded.[118] In 2004, AIM marched on Alcatraz Island to protest the imprisonment of a Native American leader.[119] This march occurred after the previous 1968 march on the Island to declare Native Americans’ ownership of it under the Treaty of Fort Laramie.[120] These tactics have led to the criticism that AIM is a “social militant group.”[121]

F. The Tea Party Movement

In contrast with ethnic minority protests, the media’s portrayal of the rise of Tea Party movement has been much more magnanimous.  Spurred into action by the economic recession of 2009, the Tea Party movement consists mostly of White, upper class citizens who exalt fiscal responsibility and deplore big government.[122] The media’s portrayal of the movement has been mixed.  Liberals depict members as gun-wielding zealot nationalists concerned only with abolishing taxes and refuting liberal ideology, while conservatives support the Tea Party’s firm belief in democracy and small government.  The movement has conducted numerous protests and organized a convention that was held on February 4, 2010. [123]

By most measures, Tea Party protests have been just as disruptive as minority protests.  On August 7, 2009, a New York Times article reported that a Tea Party website explicitly advocated for the use of disruptive forms of protest over President Obama’s proposed health care overhaul.  As a result of this propaganda, Tea Party protestors shouted at members of Congress and conducted noisy demonstrations that led to “fistfights, arrests, and hospitalization.”[124] Other protests, such as the Taxpayer March on Washington on September 12, 2009, consisted of tens of thousands of marchers at the United States Capitol (a “hallowed place”) raucously waving flags and chanting slogans.[125] Additionally, conservative commentators such as Glenn Beck have used both radio and television to vociferously denounce big government and the “liberal ideology.”[126]

As the Tea Party movement has gained substantial membership, a significant change in the media’s portrayal has resulted.  Although most media outlets once ignored the Tea Party movement, it is being taken more seriously now.  At inception, many liberal media conduits, such as MSNBC and CNN, would either not cover the movement or would portray them negatively.  Currently, 35% of Americans view the Tea Party favorably whereas only 40% disapprove of the movement.[127] Opinions of this nature have led media sources to report on the Tea Party activities more objectively.  Thus, media portrayal of the mostly White, middle class Tea Party could further explain the expressive paradox by empirically demonstrating the American public’s tolerance protesting Whites over marching Blacks or flag-waving Mexican Americans.

G. First Amendment Doctrine and Race: The Theory of Original Narrative Dissent

Narratives help people to understand reality and social situations.  Often, stock narratives furnish sufficient tools for comprehending daily life.[128] Moreover, these familiar narratives serve as convenient mechanisms to aid in the comprehension of aberrant storylines.  In this Nation, free speech is highly touted and considered to be the primary factor that distinguishes us from more oppressive countries, where the expression of minority opinions or ideas is feared.  Thus, the temptation is to believe that the cure for a bad narrative, such as racism, is a better, more egalitarian one.  Indeed, our First Amendment jurisprudence presupposes such a marketplace of ideas.  Plainly stated, First Amendment ideals are an integral and defining characteristic of American culture; however, a myopic view believes that these ideals can serve as an elixir for deep-rooted societal problems, such as racism.[129]

Theologian Reinhold Niebuhr once argued, “It is hopeless for the Negro to expect complete emancipation from the menial social and economic position into which the [W]hite man has forced him, merely by trusting in the moral sense of the [W]hite race.”[130] Implicitly, Niebuhr seems to suggest that Blacks need to take charge if any significant change in social position is expected.  Indeed, a logical extrapolation of Niebuhr’s remarks is that Blacks need to employ non-traditional tactics.  The four steps for protest in King Jr.’s Letter From Birmingham Jail may have been desirable at the time; however its ability to affect change today is dubious.  Recall that only a few years later, King Jr.’s militant successors disregarded the legal system and peaceful protest as conduits for change due to their focus on the efficacy of their protests, rather than the potential to win a vigorously fought legal battle.[131]

After conducting several studies on the efficacy of demonstrations by the poor, Frances Fox Piven and Richard A. Cloward observed that the poor were less effective in effectuating change through political or legal conduits; mass disruptions proved more effective.[132] Piven and Cloward suggested that minority groups organize en masse and create a threat of insurrection, which in turn may precipitate change.[133] Piven and Cloward’s thesis gains strength when analyzing the differences in efficacy between peaceful and active Black protest.

Arguably Piven and Coward are correct to assert that “most of the time people conform to the institutional arrangements which enmesh them, which regulate the rewards and penalties of daily life, and which appear to be the only possible reality.”[134] In other words, exigent circumstances require drastic measures.  During the civil rights movement, race riots and disruptive protest were plainly more effective at garnering attention than passive approaches.

Courts and society have adopted a position in regard to racial protest that has produced a difficult conundrum for African Americans and other minority groups.  These groups are free to assert their First Amendment right of free speech, but courts will only protect nonviolent and innocuous speech.  Moreover, society will only justify protests that are not disruptive or violent.  Bell asserts, “Coercive tactics, even peaceful ones for the most justifiable cause, are deplored.  The absence of an effective alternative gains only minimum sympathy for protests with disruptive potential . . . .”[135] Consequently, if Black protest is too violent, the protesters are viewed as barbarous, untamed, and in need of the “civilizing hand” of the law.  On the contrary, if Blacks conduct passive, orderly protests, then less is accomplished, but a lower risk of ostracism exists.  Thus, Whites have created the “expressive paradox,” in which minority protesters must be disruptive or violent to be heard, but are stereotyped negatively for their actions.

In Images of the Outsider, Richard Delgado and Jean Stefancic posit that unfettered free speech is incapable of ameliorating racism simply because bigoted speech is never recognized at the time.[136] True change can only be accomplished after society adopts a different narrative and general perception shifts.  In the mid-20th century, smoking profusely was generally accepted by the American public; however, when medical studies revealed the dangers of smoking years later, a significant decrease in the number of smokers resulted.  Overall, most people are unable to remove themselves from their current reality or narrative, and diagnose a socially accepted situation as reprehensible when it helps their understanding of the world.  Consequently, regardless of how much free speech is involved with the issue of racism, only small progress can occur while the potential for exacerbating the problem still looms.

Furthermore, the assertion that traditional First Amendment doctrine can be used for racial reform encourages members of the free marketplace to consider themselves as sui generis, or acting without regard for other’s feelings.  Stereotypes are latently encouraged and protected as free speech because they can be used with relative impunity.  In his essay Repressive Tolerance, philosopher Herman Marcuse argues that repressive free speech should not be tolerated due to its marginalization of minorities’ voices.[137] A logical implication of Marcuse’s thesis is to revise some of the protection afforded racially-charged speech due to its ability to encourage people to act amorally and without sensitivity to racial concerns.

In addition, minorities are often depicted negatively and their speech does receive much credibility.  An unfounded, persistent stereotype can potentially influence a person’s racial understanding more than hearing words directly from a person’s mouth.  Absolute free speech can definitely magnify racism and thus, is not a solution to ending or mitigating racism the problem.  Moreover, the expressive paradox can make “original narrative dissent” extremely difficult, if not impossible.  Whites tacitly encourage unfettered free expression, but only tolerate passive, non-disruptive speech.  Whites preclude ethnic minority protesters from deviating beyond the dominant narrative and making their own contribution to the primary narrative; subsequently, limited avenues of expression exist.  Minorities must fit squarely into the dominant narrative or be subjected to the depiction of rabble-rousers or brutes.

III. Possible Approaches to Mitigating Racism

Assuming Bell’s notion of racial realism[138] is correct and racism is so firmly entrenched in society that complete abrogation is impossible, effective measures must be sought at least to mitigate the racism.  The First Amendment prohibits state governments from censoring or restricting racist speech.  Perhaps private agreements with media outlets—such as Hollywood and publishers—would mitigate the bigoted speech.  Yet, these agreements would be voluntary and possibly difficult to achieve because participants would need to be convinced to censor themselves and possibly eliminate popular content.  An active approach to counteracting racism would need to be seen as a progressive measure that is viewed favorably by the general public.

Constructing countervailing narratives could be another approach to combating racism.[139] Producing positive images with a focus on the favorable aspects of African Americans, Mexican Americans, Native Americans, and other minorities may gradually influence society’s perceptions.  Considering that unfounded, overly broad stereotypes are an extremely powerful tool to influence the majority’s opinion of minorities, perhaps deliberate, insightful depictions could also prove to be equally influential.  For instance, the Mi Familia example in Bender’s Greasers and Gringos provides an eye-opening narrative to the traditional negative stereotype of Hollywood.[140]

Finally, proactive local ordinances and statutes could be another approach to mitigating racism.  A Massachusetts statute imposes a $1000 fine, one-year imprisonment, or both for racist speech.[141] Although these measures require public consensus, the abrogation of racism is worthy of public support.  The threat of a fine and possible imprisonment may be an effective deterrent to bigoted speech.

IV. Conclusion

In conclusion, stereotypes are convenient stock stories that form the majority’s perception of events.  When unorthodox episodes transpire, such as disruptive minority protests, people default to negative stereotypes to help them understand the incidents.  Furthermore, society has created an “expressive paradox,” by encouraging minorities to exercise free expression and simultaneously tolerating only passive, nonviolent speech.  Subsequently, ethnic groups such as African American, Mexican Americans, and Native Americans are unable to deviate from the normal storyline or to effectuate their original narrative dissent.  Lastly, progressive measures—such as voluntary agreements, countervailing depictions, or local ordinances—need to be implemented to mitigate racism because racial realism makes the eradication of racism difficult, if not impossible.  Although the expressive paradox makes the effectiveness of these measures formidable, they could be a positive step forward in the ongoing battle against racism.

* J.D., Seattle University School of Law (2010), Cum Laude; B.A., University of Washington (Philosophy, 2006).

[1] Ethnic Notions (PBS 1987) (The film is directed by Marlon Riggs and covers the history of deep-rooted black stereotypes that were ubiquitous from the 1820’s until the Civil Rights movement.).

[2] Richard Delgado and Jean Stefancic, Images of the Outsider in American Law and Culture, 77 Cornell L. Rev. 1258, 1273-75 (1992).

[3] Id. at 1259.

[4] Id. at 1258-59.

[5] Id. at 1261.

[6] Cox v. Louisiana, 379 U.S. 536, 542-44, 551-52 (1965).

[7] See Derrick Bell, Race, Racism, and American Law 540-41 (Aspen Publishers 5th ed. 2004).

[8] Martin Luther King Jr., Letter From Birmingham Jail, in Why We Can’t Wait, 76, 79 (1964).

[9] John Charles Boger, Race and the American City: The Kerner Commission in Retrospect –An Introduction, 71 N.C. L. Rev. 1289, 1294-95 (1993).

[10] See Walker v. City of Birmingham, 388 U.S. 307 (1967).

[11] See generally Cox , 379 U.S. at 559 (protesting outside a courthouse held to be off-limits).

[12] Walker, 388 U.S. at 315-17.

[13] Derrick Bell, Brown v. Board of Education and the Interest Convergence Dilemma, 93 Harv. L. Rev. 518, 523 (1980).

[14] See Walker, 388 U.S. at 315-16.

[15] Audre Lorde, Sister Outsider: Essays and Speeches 112, 123 (2d ed. 2007).

[16] Ethnic Notions, supra note 1.

[17] Id.

[18] Id.

[19] Id.

[20] Delgado & Stefancic, supra note 2, at 1262-63.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 1263-64.

[25] Id. at 1264.

[26] See Delgado & Stefancic, supra note 2, at 1264-65.

[27] Ethnic Notions, supra note 1; see also id. at 1265.

[28] Charles J. Ogletree, Jr., Edward L. Barrett, Jr. Lecture on Constitutional Law: The Current Reparations Debate, 36 U.C. Davis L. Rev. 1051, 1061 (2003).

[29] See Delgado & Stefancic, supra note 2, at 1266.

[30] Id.

[31] Id. at 1267.

[32] Id.

[33] Peter Ukpokodu, African American Males in Dance, Music, Theater, and Film, 569 Annals Am. Acad. Pol. & Soc. Sci. 71, 83 (2000) (“[F]ilms referred to as ‘blaxploitation’ in which violence, pimps, and drug dealers were extolled.”).

[34] See Menace II Society (New Line Cinema 1993); see also Akilah N. Folomi, From Haberman to “Get Rich or Die Tryin”: Hip, Hop, the Telecommunications Act of 1996, and the Black Public Sphere, 12 Mich. J. Race & L. 235, 275-76 (2007) (illustrating how African Americans are portrayed in the media).

[35] See The Wire (HBO television broadcast); see also Folomi, supra note 34, at 275-76.

[36] See Menace II Society, supra note 34; see The Wire, supra note 35.

[37] See generally Arthur G. Pettit, Images of the Mexican American in Fiction and Film (Dennis E. Showalter ed., 1980).

[38] Lucila Vargas & Bruce de Pyssler, Using Media Literacy to Explore Stereotypes of Mexican Immigrants, 67 Soc. Educ. 407, 409-10 (1998).

[39] See Pettit, supra note 37 at 26-28 (telling the story of Ned Buntline, “the most persistent early exploiter” of Mexican American images in popular fiction during the 1840’s and 1850’s).

[40] Id. at 23-25, 39-40 (describing a stereotypical bandito and greaser in American film).

[41] Gloria Sandrino-Glasser, Los Confundidos: De-Conflating Latinos/As’ Race and Ethnicity, 19 Chicano-Latino L. Rev. 69, 78-79 (1998).

[42] See id. at 79.

[43] Delgado & Stefanic, supra note 2, at 1275.

[44] Jeffrey S. Passel, Size and Characteristics of the Unauthorized Migrant Population in the U.S, Pew Hispanic Center 4 (Mar. 7, 2006),

[45] See Jesse McKinley & Malia Wollan, New Border Fear: Violence by a Rogue Militia, N.Y. Times, June 26, 2009, at A9, available at; Passel & Wollan, supra note 44, at 4; Jon Hurdle, Judge Strikes Down Town’s Immigration Law, N.Y Times, July 26, 2007, (last visited April 24, 2011); Randal C. Archibold, Arizona Enacts Stringent Law On Immigration, N.Y. Times, April 23, 2010, at A1.

[46] See Bell, supra note 7, at 541.

[47] See Russell Freedman, Freedom Walkers: The Story of the Montgomery Bus Boycott (2006).

[48] David Garrow, Martin Luther King Jr., and the Spirit of Leadership, 74 No. 2 J. Am. History 439 (1987).

[49] Freedman, supra note 47, at 86.

[50] Id. at 55.

[51] Gayle v. Browder, 352 U.S. 903 (1956), aff’g Browder v. Gayle, 142 F. Supp. 707 (1956).

[52] Garrow, supra note 48, at 443.

[53] Davison M. Douglas, The Quest for Freedom in the Post-Brown South: Desegregation and White Self Interest, 70 CHI.-KENT L. REV. 689, 714 (1994).

[54] Boynton v. Virginia, 364 U.S. 454 (1960).

[55] Id. at 463.

[56] Cox v. Louisiana, 379 U.S. 536, 537, 558 (1965).

[57] Id. at 550.

[58] Id. at 554.

[59] Brown v. Louisiana, 383 U.S. 131, 143 (1966).

[60] Id. at 142.

[61] Id.

[62] Walker v. City of Birmingham, 388 U.S. 307, 316 (1967) (“When protest takes the form of mass demonstrations, parades, or picketing on public streets and sidewalks, the free passage of traffic and the prevention of public disorder and violence become important objects of legitimate state concern”).

[63] Walker v. City of Birmingham, 181 So. 2d 493, 499 (Ala.1965), aff’d 388 U.S. 307 (1967)

[64] Walker, 388 U.S. at 320-21.

[65] Id. at 316.

[66] Brown, 383 U.S. at 142-43.

[67] Id.

[68] See generally Walker, 388 U.S. at 316.

[69] Id. at 307.

[70] See id.

[71] Bell, supra note 7, at 553.

[72] Lewis Steel, A Critic’s View of the Warren Court Nine-Men in Black Who Think White, N.Y. Times, Oct. 13, 1968.

[73] See Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911).

[74] Bell, supra note 7, at 555.

[75] See United States v. Beaty, 288 F.2d 653, 657 (6th Cir. 1961).

[76] Steven W. Bender, Greasers and Gringos: Latinos, Law, and the American Imagination 35 (2005) [hereinafter Greasers and Gringos].

[77] Greasers and Gringos, supra note 76, at 35-36.

[78] A “zoot suit” refers to a style of clothing consisting of wide-legged pants and a long coat that became popular among racial minority Americans in the 1940’s.

[79] Greasers and Gringos, supra note 76, at 35-36.

[80] Id.

[81] Greasers and Gringos, supra note 76, at 36.

[82] Steven W. Bender, One Night in America 9-10 (2008) [hereinafter One Night].

[83] Id.

[84] Id. at 10, 14-15.

[85] Id. at 15, 47.

[86] Greasers and Gringos, supra note 76, at 49.

[87] Irantzu Pujadas, 40 Years After Walk-outs, Little has Changed, Latinos Say (Mar. 16, 2008), (last visited April 24, 2011)

[88] Id.

[89] John R Chavez, Eastside Landmark: A History of the East Los Angeles Community Union 1968-1993 71-72 (1998).

[90] Id.

[91] Id. at 73.

[92] Id.

[93] Id.

[94] Id.

[95], Bustamante Won’t Renounce Ties To Chicano Student Group (Aug. 28, 2003),,2933,95871,00.html (last visited April 24, 2011).

[96] Id.

[97] Id.

[98] Id.

[99] Michel Marizco, Mayhem in Armory Park (Apr. 10, 2006), (last visited April 24, 2011).

[100] Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, H.R. 4437, 109th Cong. § 202 (2d. Sess. 2006).

[101] Marizco, supra note 99.

[102] Id.

[103] Id.

[104] Id.

[105] One Night, supra note 82, cover (Figure 1).

[106] Charlie Norwood, The Truth About La Raza (April 7, 2006), (last visited April 24, 2011).


[108] One Night, supra note 82, used with permission.

[109] Raymond W. Stedman, Shadows of the Indian: Stereotypes in American Culture 6-10 (1982).

[110] Id. at 17-41.

[111] Fairfax Downey, Indian Wars of the U.S. Army 1776-1865 (1963).

[112] Media Awareness Network, Common Portrayals of Aboriginal People (2010), (last visited April 24, 2011).

[113] Patrick Cooper, What Is Redsploitation? (Aug. 6, 2010), (last visited April 24, 2011).

[114] Common Portrayals of Aboriginal People, supra note 112.

[115] James Stuart Olson & Raymond Wilson, Native Americans in the Twentieth Century 92-93 (1986).

[116] Bradley G. Shreve, From Time Immemorial: The Fish-in Movement and the Rise of the Intertribal Activism, Pac. Hist. Rev. 78.3, 404 (2009).

[117] US Marshals Service, History-Incident at Wounded Knee (last visited April 22, 2011),

[118] Id.

[119] Leonard Peltier is an active AIM member, was sentenced to two life sentences in prison for the alleged murder of two FBI agents in a shootout on the Pineridge Indian Reservation in 1975. AIM has fervently protested Peltier’s conviction due to inconsistencies in the federal government’s case.

[120] Treaty With the Sioux—Brule, Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arcs, Santee, and Arapaho, 15 Stat. 65 (Apr. 29, 1868).

[121] Tim Baylor, Media Framing of Movement Protest: The Case of American Indian Protest, 33 Soc. Sci. J. 3, 241 (1996).

[122] CNN, Who are the Tea Party Activists? (February 18, 2010),,+2010+tea+party&cd=5&hl=en&ct=clnk&gl=us&client=safari.

[123] Philip Rucker, Tea Party Convention Begins in Nashville, Wash. Post, February 5, 2010.

[124] Ian Urbina, Beyond Beltway, Health Debate Turns Hostile, N.Y. Times, August 7, 2009.

[125] Conservative Protesters Rally Against Big Government Huffington Post, September 12, 2009,

[126] Sarah Palin Talks Health Care, Tea Party Movement on Glenn Beck Fox News, March 19, 2010,,2933,589665,00.html.

[127] Gary Langer, Tea Party Shows Prospects; Less So For Sarah Palin, February 10, 2010,

[128] Richard Delgado, Legal Storytelling: Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411, 2416 (1988).

[129] Richard Delgado, First Amendment Formalism Is Giving Way to First Amendment Legal Realism, 29 Harv. C.R.-C.L. L. Rev. 169, 171 (1994).

[130] Reinhold Niebuhr, Moral Man and Immoral Society 252 (1932).

[131] Bell, supra note 7, at 554.

[132] Frances Fox Piven & Richard A. Cloward, Poor People’s Movements: Why They Succeed, How They Fail xiii (1977).

[133] Id. at xii-xiii

[134] Piven & Cloward, supra note 132, at 6.

[135] Bell, supra note 7, at 541.

[136] Delgado & Stefancic, supra note 2, at 1277-78.

[137] Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance 81, 109-10 (5th prtg. 1970).

[138] Derrick Bell, Racial Realism, 24 CONN. L. REV. 363, 373-74 (1992) (defining racial realism as a “mind-set or philosophy [which] requires us to acknowledge the permanence of our subordinate status.  That acknowledgement enables us to avoid despair, and frees us to imagine and implement racial strategies that can bring fulfillment and even triumph.”).

[139] Greasers and Gringos, supra note 76, at 169 (noting that “determining an effective means to eliminate and to counteract media and societal stereotypes is daunting”).

[140] Id. at 187-88.  The film follows Jose Sanchez as he leaves Mexico on foot, works as a gardener in the U.S., marries, and raises six children. The film then documents the varying lives each of Sanchez’ children decide to lead.

[141] Mass. Gen. Laws. Ann. ch. 272 § 98C (1994).