When academic bureaucrats and civic busybodies try to regulate, ban, or even criminalize "hate speech," they often rely on a core proposition — that racial, ethnic, religious, and sexual epithets are different and uniquely powerful in a way that takes them outside of normal First Amendment analysis and normal freedom of expression principles, justifying extraordinary action. This theory — what I'll call the "magic words" approach — was the rationale for the wave of campus speech codes that reached high tide in the 90s, and that (as FIRE documents) still persist. Conservatives traditionally scorned this theory, arguing that words are just words, that they only have such force as people choose to give them, and that more speech, rather than the hand of government or other institutions, ought to address such invective. Conservatives, in other words, took an identifiably conservative stance — that the marketplace of ideas is a free market, that hate speech cannot be seen as a market flaw, and that the market should police itself.

Yet some conservatives have now embraced "magic words" theory and made it their own.

No, conservatives have not conceded that being called "nigger" or "faggot" is uniquely powerful and harmful in a way that takes the matter beyond the scope of the self-regulation of the marketplace of ideas. Instead, in a fit of unselfconscious self-satire, they are complaining that being called "racist" or "bigoted" is uniquely hurtful, market-distorting, and speech-suppressing, thus taking the matter beyond the normal rules of the marketplace of ideas to a dark and scary place where more speech cannot protect them.

The most recent occasion for this phenomenon is the sad strange case of Chip Saltsman, former Tennessee GOP chair, Huckabee campaign manager, and RNC Chair aspirant. Saltsman wants very badly to be RNC Chair in 2009, possibly as a form of penance for some crime I shudder to imagine. He diminished his chances somewhat by sending out a burned CD for Christmas — not of his fave holiday tunes, but of Republican red meat satire like "Barack the Magic Negro":

The song, performed by an Al Sharpton impersonator, was written by satirist and Saltsman friend Paul Shanklin to the tune of "Puff the Magic Dragon." It played off a Los Angeles Times opinion piece by freelance writer David Ehrenstein, who characterized Obama as an archetypal cinematic "Magic Negro" — a black man who assuages white guilt, like the character played by Sidney Poitier in Guess Who's Coming to Dinner.

The CD also contained other satirical songs enjoyed by the sort of people who could imagine themselves as RNC Chairs and who think Mark Russel is too subtle. Saltsman finds himself in a holiday tempest, with people on the left and the right rising to denounce the song — and by extension him — as offensive, as his opponents jockey for advantage. Now, this is an uncommonly silly dispute on many levels. The "Magic Negro" song itself is a play on a column written by a leftist, David Ehrenstein, who wrote a column in the L.A. Times suggesting that Obama resembles classic cinematic figures of unthreatening black benevolence. Ehrenstein mouths, without soundly refuting, the implication that Obama is not "authentically black," which is the only thing that makes the column potentially obnoxious. Conservatives like Rush Limbaugh seized upon the column with delight and forged satirical songs featuring the term "Magic Nego," thus acting rather like folks who cheerfully use the word "nigger" in regular conversation because Chris Rock says it and therefore it must be acceptable. And now people are complaining about the song stripped of all that context that makes its provenance more complex than if Saltsman had simply decided, out of the blue, to start referring to Obama as "that Magic Negro."

The tumult has produced much defensiveness from the right. But one, spotted at Sadly, No, caught my eye in particular, because it embodied the conservative embrace of "magic words" theory. Rick Moran of RightWingNuthouse busts out with this:

That is, unless you’re a liberal seeking to make political hay and stifle free expression. You can criticize “Barack the Magic Negro” as unfunny or not in good taste. But when you use the inflammatory word “racism” to describe it, you go beyond critiquing the work and enter the world of pure politics. This liberals do on a regular basis and they get away with the sliming of political speech and speakers they disagree with because the press refuses to call them out on it.

In fact, the left has lowered the bar on what constitutes “racism” by redefining the term to suit their own political needs. And by refusing to acknowledge any set definition of the word, the left deliberately undermines free speech by cutting off debate with liberals firmly ensconced in a superior moral position while the person being unfairly smeared as a racist is unable to defend themselves. If one tries to stand up and fight the charge, they give automatic legitimacy to the left’s argument. And if they remain silent in the face of such slimeball tactics, the smear works and sticks to the accused like glue. [emphasis added]

Here are all the tropes behind "magic words" theory as used both by leftists and rightist: that such words go outside normal discourse, that they cut off debate (thus "breaking" the marketplace of ideas), and that they leave people flat-footed and incapable of defense. Of course, its all nonsense. Moran's complaint is utterly un-conservative — it's practically Marxist. It sounds like what you would expect from Noam Chomsky or a member of a French trade union; it's a straight-up complaint that the marketplace of ideas cannot be trusted and does not work. Yet the mere fact that people like Rick Moran keep writing and talking incessantly establishes beyond cavil that calling them racist idiots does not shut down the marketplace of ideas or render them incapable of self-defense. If being widely derided as a bigoted dick is actually unfairly debilitating, how in God's name are Rick Santorum and Al Sharpton and Mike "Don't Call Me a Weiner" Savage still bleating?

Now, you'd be right to point out that the conservative embrace of magic words theory has not yet reached the point where conservatives have sought to ban the words "racist" or "bigot." But conservatives are using magic words theory as an explicit component of public policymaking. Consider megachuch pastor, popular author, Syria apologist, and inauguration speaker Rick Warren, who explicitly argued that the danger of being called a bigot made it necessary to pass California's Proposition 8:

Because first the court overrode the will of the people, but second there were all kinds of threats that if that did not pass then any pastor could be considered doing hate speech if he shared his views that he didn’t think homosexuality was the most natural way for relationships, and that would be hate speech. We should have freedom of speech, ok? And you should be able to have freedom of speech to make your position and I should be able to have freedom of speech to make my position, and can’t we do this in a civil way.
….
What they desire is approval and validation from those who disagree with them, and they are willing to force it by law if necessary. Any disapproval is quickly labeled “hate speech. Imagine if we held that standard in every other disagreement Americans have? There would be no free speech. That’s why, on the traditional marriage side, many saw Prop 8 as a free speech issue: Don’t force me to validate a lifestyle I disagree with.

Warren is using the threat of being accused of bigotry as a justification for public policy — with the implied ridiculous fearmongering warning that any minute his speech might be criminalized. Once again, it's not clear why pastors can't simply use their pulpit to respond to such speech.

The conservatives are just as wrong as the liberals on this. The correct response to objectionable speech is more speech. The pathetic mewling from the likes of Moran simply demonstrates how adequate and effective response speech can be. When Rick Moran and Rick Warren get called bigots, the market is working — it is telling them that most people don't want to buy what they are selling.

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