The question of whether someone can be sued for being racist is not as black and white as one would assume. The simplest answer to the question is, no, not really. But there are caveats.
Before describing those caveats, it’s important to define racism. The easiest answer is that racism is the belief that members of a certain race possess characteristics that are superior or inferior to other race groups.
So is it possible to sue someone for a thought, opinion or belief? Of course not.
“You can’t be sued or punished criminally for what you think or believe,” says Dana Rothman, an attorney in Miami with a background in criminal law. “You can be sued or punished criminally for your actions, but not just for being racist. There are limitations though. First amendment right is not unlimited,” she added.
Expressing an opinion is generally protected by the First Amendment to the U.S. Constitution, which states that “Congress shall make no law …abridging the freedom of speech.” The definition of “free speech” is, however, ambiguous. The U.S. Supreme Court regularly struggles to determine what exactly constitutes protected speech. So far, it and the lower courts have determined that free speech includes the right:
- Not to speak (specifically, the right not to salute the flag).
- To wear black armbands to school to protest a war.
- To use certain offensive words and phrases to convey political messages.
- To contribute money (under certain circumstances) to political campaigns.
- To advertise commercial products and professional services (with some restrictions).
- To engage in symbolic speech, (e.g., burning the flag in protest).
Conversely, the courts have determined that free speech does not include the right to:
- Incite actions that would harm others (e.g., “shouting ‘fire’ in a crowded theater.”).
- Make or distribute obscene materials.
- Burn draft cards as an anti-war protest.
- Print articles in a school newspapers over the objections of the school administration.
- Make an obscene speech at a school-sponsored event.
- Advocate illegal drug use at a school-sponsored event.
Behind these rulings is the general notion that speech is free until it harms or impacts other people.
“Freedom of speech is limited because you cant express yourself in a way that’s going to interfere in the way of someone else’s freedoms,” says Rothman.
A scenario in which someone could be sued for being racist would necessarily involve forms of expressions that are unprotected by the First Amendment. These would include fighting words, true threats, child pornography, obscenity, perjury, defamation (including libel and slander), blackmail, solicitations to commit crimes and incitement to imminent lawless action.
Certain classes of people, namely those who qualify for special anti-discrimination protection by a law, also can sue someone if they are discriminated against because of their race, color, national origin, age, sex, citizenship, religion, family status, disability or veteran status. Usually, that involves invoking the Civil Rights Act. That person cannot be sued because of what they think, however. Only if those thoughts turn to action.
Bottom line is that you can harbor racist beliefs and even say racist things, but until those thoughts or words impact another individual in a physical, monetary or psychological way (and that impact can be proven in court) then they remain protected by the U.S. Constitution.
