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By John Bennett
Update: Philadelphia Magazine editor Tom McGrath and Robert Huber, author of the controversial “Being White in Philly” cover story, were rebuked at a public forum Monday night at the National Constitution Center in Philadelphia.
In what is developing into an alarming challenge to free speech, Philadelphia Mayor Michael Nutter has requested that a state agency “rebuke” Philadelphia Magazine and the author of an article titled “Being White in Philly” for committing an “incitement to extreme reaction.”
One of the nation’s most prominent First Amendment scholars, UCLA law professor Eugene Volokh, told WND that the Democratic mayor is supporting “outright suppression” of speech with which he disagrees.
The mayor’s letter claims that the article portrayed blacks “as an ethnic group that, in its entirety, is lazy, shiftless, irresponsible, and largely criminal.”
Worst of all, from the perspective of free speech advocates, the mayor accused the magazine of “the sin of having allowed this article to be published.”
Philadelphia Magazine’s editor, who self-identifies as “center-left,” told WND he believes the mayor’s description is a “gross distortion of the piece.”
Volokh said the letter “shows that the mayor supports not just criticism of opinions that he disagrees with but outright suppression.”
‘Being white in Philly’
Nutter personally sent the signed letter to the Human Relations Commission last week, criticizing the article “Being White in Philly.” The Human Relations Commission is the official state agency that “enforces Pennsylvania’s anti-discrimination laws and promotes equal opportunity,” and “investigates complaints of illegal discrimination.”
The article, which has drawn national attention, collected a large number of Philadelphia voices who believe black crime, dysfunction and political correctness drove discussion of race underground.
Those interviewed for the piece provided specific examples of their experiences with race in the city. They described conduct that had concerned or harmed them.
The legal language of censorship
Nutter called the article “an incitement to extreme reaction,” tracking the language of Brandenburg v. Ohio, the Supreme Court case which held that a state may censor speech when “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The only action advocated in the article was further discussion of racial concerns, including the views of whites, which are traditionally disregarded in mainstream “conversations” about race. The letter did not explain which statements were incitements or what action the statements supposedly incited.
See Nutter’s own comments on youth, trouble and race:
"Under well-settled First Amendment principles, the article doesn't fall within the very narrow exception for intentional incitement of imminent and likely crime," Volokh argued.
Nonetheless, Nutter's letter used the precise language from court cases that support restrictions on free speech.
The relevant part of Nutter’s letter reads:
I ask that the commission consider specifically whether Philadelphia Magazine and the writer, Bob Huber, are appropriate for rebuke by the commission in light of the potentially inflammatory effect and the reckless endangerment to Philadelphia's racial relations possibly caused by the essay's unsubstantiated assertions… I ask the commission to evaluate whether the 'speech' employed in this essay is not the reckless equivalent of "shouting 'fire' in a crowded theater," its prejudiced, fact-challenged generalizations an incitement to extreme reaction.
Volokh firmly disagrees with the mayor.
"The government is entitled to disagree with what people say, and to criticize them for what they say," he said. "But here the mayor is not just calling for a response to the article – he is claiming that the article is unprotected by the First Amendment."
The state 'rebukes' speech
The mayor's letter to the PHRC begins, "This month Philadelphia Magazine has sunk to a new low." It goes on to condemn the article as "pathetic, uninformed," full of "despicable, over-generalized" assumptions by people "too cowardly" to identify themselves.
Philadelphia Magazine's editor, Tom McGrath, describes himself as "center-left" politically. He told WND, "The mayor's characterization of the story is simply incorrect." McGrath sees the article as a collection of genuine voices that should be heard.
"The story quotes people in one section of Philadelphia talking about some of their experiences when it comes to race in their own neighborhood," he said. "Some of those people have ugly, disgusting things to say; others are extremely empathetic."
The mayor's letter requests that the PCHR "conduct an inquiry into the state of racial issues, biases, and attitudes within and among the many communities and neighborhoods in the city of Philadelphia."
He asks the commission to "take testimony from individual citizens and from organizations" about those issues.
McGrath told WND of his concerns about the mayor's official condemnation.
"We did this piece as a way to promote much-needed conversation about the difficult issue of race," he said. "That the mayor simultaneously says, yes, we need to have that conversation, but the people who started the conversation should be officially 'rebuked' – by the government, no less – is, at best, bizarre."
Critical race theory
It appears that the mayor and his staff are prepared to advance speech restrictions conforming to the doctrine of Critical Race Theory, or CRT.
CRT's originators, including professors Richard Delgado and Mari Matsuda, are among the most prominent supporters of hate-speech laws.
According to Delgado, a law professor at Seattle University, "American society remains deeply afflicted by racism." Delgado writes that because "they constantly hear racist messages, minority children, not surprisingly, come to question their competence, intelligence, and worth."
Therefore, "racial insult" and "mere words, whether racial or otherwise, can cause mental, emotional, or even physical harm to their target."
Delgado argues that hate speech is a significant social problem and that such speech, along with other tools of racism, holds minorities in inferior positions. Hence, words that are "highly insulting" and have a "racial component" should be grounds for a lawsuit against the speaker, Delgado argues.
Matsuda, a Georgetown law professor, claims that part of the "special harm of racist speech is that it works in concert with other racist tools to keep victim groups in an inferior position."
Matsuda lists "three identifying characteristics" of hate speech, which she proposes to regulate: the "message is of racial inferiority," it is "directed against a historically oppressed group" and "is persecutorial, hateful and degrading."
Nutter is one of the most, if not the most, powerful political figure to publicly and directly support censorship in recent years.
The PHRC website claims, "We encourage diverse workplaces, schools and communities where differences are not just tolerated, but celebrated."
The PHRC does not state whether it celebrates a diversity of political and social viewpoints.