Hate Speech and Government Speech
Charlotte H. Taylor
Columbia Law School
April 1, 2010
University of Pennsylvania Journal of Constitutional Law, Vol. 12, No. 4, p. 1115, April 2010
After a spate of hate speech incidents involving nooses provoked outcry in 2007, the immediate response was regulation. A number of states passed laws proscribing the placing of a noose on private property with the intent to intimidate. This response reanimates the familiar debate between those who seek to ban hate speech - the “anti-subordination camp” - and those who oppose such prohibitions on speech - the “free speech camp.” At loggerheads since the movement to institute anti-hate speech laws first gathered momentum in the late 1980s, these two camps fundamentally disagree over how to reconcile the constitutional value of equality with the constitutional value of free speech. Those in the anti-subordination camp see hate speech as perpetuating systematic subordination and argue that regulating it is a crucial step toward achieving equality. Those in the free speech camp see such regulations not only as threatening freedom of expression but also as undermining key citizenship values and imposing an artificial rigidity on language itself. Debate between these two camps has long been at an impasse. This Article proposes a middle path: government speech.
As the Supreme Court affirmed this term in Pleasant Grove City v. Summum, the First Amendment places no restrictions on the government’s own speech. This Article explores, for the first time, how the government can use its expressive power to intervene against hate speech. The government speaks to its citizens in myriad ways: through the speech of elected officials, through the dissemination of information, by exercising regulatory and editorial control over channels of mass communication, by selectively subsidizing individual speakers, by educating the nation’s students. First Amendment scholars have generally been wary of this power, fearing that it can impinge upon the free expression of individuals. The overwhelming scholarly emphasis has therefore been on curtailing government excesses, and little sustained attention has been given to the ways in which government speech might have a positive influence on expression while still respecting the values of free speech.
This Article maps out and assesses an array of constitutionally permissible, non-regulatory interventions that government speakers might make against hate speech. These range from purely precatory speech - an elected official, for example, advising citizens of the historical connection between nooses and racially motivated violence - to forms of expression that possess a coercive power approaching that of regulation - a Congressionally maintained “blacklist,” for example, of individuals and organizations that promulgate hate speech. The Article then addresses anticipated objections to the various proposed interventions: the members of the anti-subordination camp may argue that government speech will be ineffectual; while the members of the free speech camp may argue that the First Amendment is offended when the government, even through non-binding measures, intentionally deters a specific kind of speech. In addition to evaluating the validity of these objections with respect to individual measures, the Article, on the one hand, questions the general assumption that regulation is a uniquely effective way to influence expression; and on the other hand, argues that outside the context of regulation, the First Amendment need not trump Fourteenth Amendment equality concerns.
Number of Pages in PDF File: 75Accepted Paper Series
Date posted: April 27, 2011
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