'Tell Your Faggot Friend He Owes Me $500 for My Broken Hand': Thoughts on a Substantive Equality Theory of Free Speech

Abstract

With two recent decisions in what is being referred to as the T-shirt Wars, Harper v. Poway Unified School District and Nuxoll v. Indian Prairie School District, as operational vehicles, this article explores what I term anti-identity speech and its effects on its targets. Traditional interpretations of the First Amendment rely upon free speech absolutism and formalistic notions of equality (if equality is considered at all) to render anti-identity speech (more narrowly: hate speech) as an evil that must be tolerated by its targets for the greater good. This article posits an alternative view of the right to free speech, which is grounded in a commitment to substantive equality and which would allow for the reasonable restriction of speech that has as its aim or effect the subordination and second-class status of historically disenfranchised minorities. In such discrete instances, speech is analyzed and regulated on the basis of harm, not viewpoint. The speech is restricted for what it does - eroding equality - not for what it says. To put it another way, equality provides the compelling state interest for restrictions of anti-identity, anti-equality speech. A theory thus articulated requires a conceptualization of the end product of anti-identity speech as actual harm - something more than insult or hurt feelings. It also requires that restrictions are related in constitutionally significant ways to the defense of equality. This approach calls to question a number of popular myths anchoring the absolutist view of free speech, as well as demands their answer through a realistic look at the interrelation of language, history, and context. Through an extended analogy between contemporary anti-Gay rhetoric in the United States and anti-Semitic saturation propaganda in Nazi Germany, I show why and how anti-identity speech must be subject to reasonable regulation. While focused largely on the public grade school setting, the arguments presented here are relevant to numerous situations in which the conceptual liquidation of the person is effectuated by speech or expression that then finds refuge in the First Amendment. As such, my arguments are relevant to anti-harassment laws, anti-bullying laws, and anti-hate speech laws.

Keywords: free speech, first amendment, gay rights, equality, hate speech, homophobia, anti-semitism, freedom of expression, freedom of speech, harassment, fourteenth amendment, T-shirt