Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine
Cardozo Journal of Law & Gender, Vol. 19, Fall 2013, pp. 349-391
43 Pages Posted: 22 Oct 2012 Last revised: 24 Nov 2017
Date Written: August 1, 2012
In this Article I seek to shed light on freedom of speech jurisprudence as it is reflected in the Snyder v. Phelps and Skokie cases, as well as in two analogous Israeli cases, concerning anti-gay and anti-Arab picketing in Jerusalem and in the Arab town of Umm al-Fahm.
Comparing the cases, I identify the moral relativity built into the interpretation of freedom of expression doctrine in both countries. I introduce the concept of discriminating speech, which is speech that is designed to promote and enforce discrimination of vulnerable minorities, and therefore should be treated as an act and not as speech. I argue that both in the Snyder and the Jerusalem Pride cases the courts fail to notice this distinction between speech and act because of the courts’ entrenched heterophilia.
Unlike homophobia, which is easier to notice and to combat, heterophilia is hidden from plain sight. It is benign in that it does not fight any person, group or community, but rather privileges and idealizes a certain ideology, namely heterosexual ideology. Although heterophilia is not violent, and may well be accepting of LGBTs, its consequences are still discriminatory, and it can account for what seem to be sympathetic courts that end up handing down anti-gay decisions. Heterophilia, the Article concludes, is not the only philia that informs freedom of speech jurisprudence. While rejecting racism, both the American and Israeli courts have protected racist discriminating speech. Like heterophilia in the case of anti-gay hate speech, race-based philia can explain how non-racist courts can rule in a way that de facto endorses racist deeds as speech valuable to democracy.
Keywords: freedom of speech, First Amendment, gay rights, pride parades, discrimination, sexuality, homophobia, heterophilia, Israel, comparavie law
Suggested Citation: Suggested Citation