License to Harass: Law, Hierarchy, and Offensive Public Speech

Princeton University Press
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Offensive street speech--racist and sexist remarks that can make its targets feel both psychologically and physically threatened--is surprisingly common in our society. Many argue that this speech is so detestable that it should be banned under law. But is this an area covered by the First Amendment right to free speech? Or should it be banned?

In this elegantly written book, Laura Beth Nielsen pursues the answers by probing the legal consciousness of ordinary citizens. Using a combination of field observations and in-depth, semistructured interviews, she surveys one hundred men and women, some of whom are routine targets of offensive speech, about how such speech affects their lives. Drawing on these interviews as well as an interdisciplinary body of scholarship, Nielsen argues that racist and sexist speech creates, reproduces, and reinforces existing systems of hierarchy in public places. The law works to normalize and justify offensive public interactions, she concludes, offering, in essence, a "license to harass."

Nielsen relates the results of her interviews to statistical surveys that measure the impact of offensive speech on the public. Rather than arguing whether law is the appropriate remedy for offensive speech, she allows that the benefits to democracy, to community, and to society of allowing such speech may very well outweigh the burdens imposed. Nonetheless, these burdens, and the stories of the people who bear them, should not remain invisible and outside the debate.

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About the author

Laura Beth Nielsen is currently Research Fellow at the American Bar Foundation and will be Assistant Professor of Sociology and Law at Northwestern University beginning in the fall of 2006. She is the editor, with Robert L. Nelson, of Handbook of Employment Discrimination Research: Rights and Realities.
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Additional Information

Publisher
Princeton University Press
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Published on
Jan 10, 2009
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Pages
248
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ISBN
9781400826292
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Language
English
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Genres
Law / Discrimination
Law / Jurisprudence
Social Science / Discrimination & Race Relations
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Content Protection
This content is DRM protected.
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Available on Android devices
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Eligible for Family Library

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The book that helped free an innocent man who had spent twenty-seven years on death row.
 
In January 1982, an elderly white widow was found brutally murdered in the small town of Greenwood, South Carolina. Police immediately arrested Edward Lee Elmore, a semiliterate, mentally retarded black man with no previous felony record. His only connection to the victim was having cleaned her gutters and windows, but barely ninety days after the victim’s body was found, he was tried, convicted, and sentenced to death.
 
Elmore had been on death row for eleven years when a young attorney named Diana Holt first learned of his case. After attending the University of Texas School of Law, Holt was eager to help the disenfranchised and voiceless; she herself had been a childhood victim of abuse. It required little scrutiny for Holt to discern that Elmore’s case—plagued by incompetent court-appointed defense attorneys, a virulent prosecution, and both misplaced and contaminated evidence—reeked of injustice. It was the cause of a lifetime for the spirited, hardworking lawyer. Holt would spend more than a decade fighting on Elmore’s behalf.
 
With the exemplary moral commitment and tenacious investigation that have distinguished his reporting career, Bonner follows Holt’s battle to save Elmore’s life and shows us how his case is a textbook example of what can go wrong in the American justice system. He reviews police work, evidence gathering, jury selection, work of court-appointed lawyers, latitude of judges, iniquities in the law, prison informants, and the appeals process. Throughout, the actions and motivations of both unlikely heroes and shameful villains in our justice system are vividly revealed.           
 
Moving, suspenseful, and enlightening, Anatomy of Injustice is a vital contribution to our nation’s ongoing, increasingly important debate about inequality and the death penalty.


From the Hardcover edition.
White by Law was published in 1996 to immense critical acclaim, and established Ian Haney López as one of the most exciting and talented young minds in the legal academy. The first book to fully explore the social and specifically legal construction of race, White by Law inspired a generation of critical race theorists and others interested in the intersection of race and law in American society. Today, it is used and cited widely by not only legal scholars but many others interested in race, ethnicity, culture, politics, gender, and similar socially fabricated facets of American society.

In the first edition of White by Law, Haney López traced the reasoning employed by the courts in their efforts to justify the whiteness of some and the non-whiteness of others, and revealed the criteria that were used, often arbitrarily, to determine whiteness, and thus citizenship: skin color, facial features, national origin, language, culture, ancestry, scientific opinion, and, most importantly, popular opinion.

Ten years later, Haney López revisits the legal construction of race, and argues that current race law has spawned a troubling racial ideology that perpetuates inequality under a new guise: colorblind white dominance. In a new, original essay written specifically for the 10th anniversary edition, he explores this racial paradigm and explains how it contributes to a system of white racial privilege socially and legally defended by restrictive definitions of what counts as race and as racism, and what doesn't, in the eyes of the law. The book also includes a new preface, in which Haney Lopez considers how his own personal experiences with white racial privilege helped engender White by Law.

This volume contains a collection of original papers by leading legal scholars and social scientists that develop new perspectives on anti-discrimination law, with an emphasis on employment discrimination. The articles were written for a conference held at Stanford Law School in Spring 2003 that was sponsored by the American Bar Foundation and Stanford Law School. The purpose of that conference, this volume, and ongoing work by the Discrimination Research Group based at the American Bar FoundationandtheCenterforAdvancedStudyintheBehavioralSciencesistoadvance the social scienti?c understanding of employment discrimination and the operation of employment discrimination law as a social system, and to consider the legal and policy implications of this emerging body of social science. Now is a pivotal moment for an attempt at a deeper understanding of discrimi- tion and law. After three decades of theoretical development and empirical research onemploymentdiscriminationanditstreatmentinlaw,itiscrucialthatlawyers,social scientists,andpolicymakersassesswhatweknowanddonotknowaboutemployment discrimination and its treatment by law. To date, there are several streams of active research that only occasionally engage with each other. Economists and sociologists continue to debate the extent to which women, minorities, and other traditionally disadvantagedgroupsfacediscriminationinlabormarketsandorganizations. Orga- zation scholars and legal scholars have begun to map the effect of anti-discrimination law on organizational structures and processes, and to raise questions about the extent to which the legalization of organizational employment systems represents symbolic or substantive changes in employment practices.
Gerry Handley faced years of blatant race-based harassment before he filed a complaint against his employer: racist jokes, signs reading “KKK” in his work area, and even questions from coworkers as to whether he had sex with his daughter as slaves supposedly did. He had an unusually strong case, with copious documentation and coworkers’ support, and he settled for $50,000, even winning back his job. But victory came at a high cost. Legal fees cut into Mr. Handley’s winnings, and tensions surrounding the lawsuit poisoned the workplace. A year later, he lost his job due to downsizing by his company. Mr. Handley exemplifies the burden plaintiffs bear in contemporary civil rights litigation. In the decades since the civil rights movement, we’ve made progress, but not nearly as much as it might seem.

On the surface, America’s commitment to equal opportunity in the workplace has never been clearer. Virtually every company has antidiscrimination policies in place, and there are laws designed to protect these rights across a range of marginalized groups. But, as Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen compellingly show, this progressive vision of the law falls far short in practice. When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they’ve lost regardless of the outcome of the case. Employer defendants also are dissatisfied with the system, often feeling “held up” by what they see as frivolous cases. And even when the case is resolved in the plaintiff’s favor, the conditions that gave rise to the lawsuit rarely change. In fact, the contemporary approach to workplace discrimination law perversely comes to reinforce the very hierarchies that antidiscrimination laws were created to redress.
Based on rich interviews with plaintiffs, attorneys, and representatives of defendants and an original national dataset on case outcomes, Rights on Trial reveals the fundamental flaws of workplace discrimination law and offers practical recommendations for how we might better respond to persistent patterns of discrimination.
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