Hate Speech, Public Discourse, and the First Amendment
EXTREME SPEECH AND DEMOCRACY, Ivan Hare, James Weinstein, eds., Oxford University Press, Forthcoming
38 Pages Posted: 30 Jul 2008
Date Written: July 29, 2008
In recent decades, American courts have held that public hate speech, such as the Nazi march in Skokie, must be protected under the First Amendment because there is no principled way to distinguish that speech from other forms of political expression. Many American constitutional scholars take the same view. In this essay, which is a contribution to an international symposium on Extreme Speech and Democracy, I offer an alternative understanding of hate speech, public discourse, and freedom of expression. In Part I, I outline a general theory of the First Amendment. On this view, free speech is rooted in respect for the autonomy and dignity of human beings. But the same values that justify freedom of speech also give rise to other fundamental rights which are entitled to protection under the law. Speech that infringes these rights may be regulated by narrowly drawn laws, except in situations where the value of the speech is sufficient to justify the injuries it causes. Part II applies this approach to political hate speech like the Nazi march. I begin by arguing that this form of speech invades its targets' rights to personal security, personality, citizenship, and equality. The crucial question then becomes whether this form of speech nevertheless should be protected because of its political character. The answer to this question turns on our conception of political speech. After criticizing two of the leading theories in this area - Justice Holmes's vision of the marketplace of ideas and Robert C. Post's theory of public discourse - I argue that political speech is best understood as discourse among individuals who recognize one another as free and equal persons and members of the political community - a view that derives support from classic theorists such as Locke and Hegel as well as from contemporary theorists such as Meiklejohn and Habermas. By denying recognition to its targets, political hate speech violates the fundamental ground rules that should govern political debate. For these reasons, I contend that, in principle, this form of speech should not receive constitutional protection. Interpreting the First Amendment in this way would not only allow American law to reconcile the competing demands of free speech and human dignity, it would also bring that law into harmony with the approach to political hate speech that is taken by many other liberal democratic nations and the international community.
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