The Mythological Marketplace of Ideas: R.A.V., Mitchell, and Beyond

Abstract

The First Amendment lies at the core of our notion of a well-functioning democracy. It is the central tenet of our conception of the American polity. Given the permanence of racism in our society, it is a misconception that any effort toward regulating speech should be viewed as unconsitutional censorship (or viewpoint discrimination by the state). In First Amendment jurisprudence, the mesmerizing appeal of an ideological marketplace has elevated the cleansing properties of the marketplace of ideas. More speech is viewed as a panacea, especially when efforts are mounted to regulate hate speech. This article posits several theories: the First Amendment has been construed by the United States Supreme Court in a manner that is antithetical to equality; the constitutional legacy of R.A.V. and Mitchell is totally devoid of any principled analysis of hate speech because literal doctrinal concerns are placed above the rights of oppressed people; this tangled constitutional legacy has lead to disparate results amongst state courts where the decisional outcomes are invariably controlled by how an action is labelled; and states, as bulwarks of liberty, should adopt narrowly tailored hate speech regulations based upon the international approach to racist hate speech.

Keywords: First Amendment, Fourteenth Amendment, hate speech, race, free speech, hate crimes, regulation of speech, marketplace of ideas