Changing Counterspeech

Abstract

A cornerstone of First Amendment doctrine is that counterspeech — speech that responds to speech, including disfavored, unpopular, or offensive speech — is preferable to government censorship or speech regulation. The counterspeech doctrine is often invoked to justify overturning or limiting legislation, regulation, or other government action. Counterspeech forms part of the rationale for the “marketplace of ideas” that the First Amendment is arguably designed to promote. Yet critics assert that counterspeech is hardly an effective remedy for the harms caused by “hate speech” and other offensive words that are expressed in American society, given the realities of how speech is expressed. While increases in speech may be beneficial, limits on attention, structural inequalities, and the chilling effects that hate speech can create for counterspeakers can inhibit effective counterspeech from thriving.

This Article examines the evolution of the counterspeech doctrine throughout the 20th and 21st centuries and how academics, advocates, and the public have engaged with its premises and arguments since its popularization in First Amendment doctrine. It argues that the shifting justifications for counterspeech and the lack of clarity regarding its dynamics and defenses explains the growing criticisms and disapprobation of the doctrine. Yet counterspeech is also one of the most settled free speech doctrines — so much so that it has influence beyond the bounds of First Amendment-covered entities.

The Article begins by discussing how the Supreme Court initially formulated counterspeech in relation to its philosophical origins, and its development and evolution into a core doctrinal tenet. The Article then analyzes critiques of counterspeech that have proliferated as it has ascended to doctrinal permanence. The Article concludes by evaluating how counterspeech has become central to speech regulation in venues that are not subject to the First Amendment, and how our understanding of counterspeech should shift away from treating it as a cure-all to disfavored speech.

Keywords: counterspeech, free speech, first amendment