Equality and Freedom of Expression: The Hate Speech Dilemma

55 Pages Posted: 24 Mar 2015

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Date Written: 1991


In recent legal scholarship, writers have proposed three approaches to hate speech, each with its own internal complexities and variations. The first approach allows hate speech in order to maximize opportunities for individual expression and cultural regeneration. The second, highly controversial approach represses hate speech through sanctions that range from official and private reprimands to criminal prosecutions in order to promote equality and the nonsubordination of potential hate speech targets. Aggressive versions of this approach urge that hate speech should be punishable only when directed at members of a historically subordinated group, not dominant group members. The third, emerging approach attempts to accommodate the "worthy passions" of the first two approaches. The accommodationists endorse tightly worded, cautiously progressive measures that tend to proscribe only targeted vilification of a person on the basis of race, gender, religion, ethnic origin, sexual orientation, or other protected characteristics. These philosophical, constitutional, and practical factors illustrate the extreme difficulty of striking an appropriate balance between the strong claims of civil discourse and the strong claims of untrammeled expression. The following pages explore these complexities in greater detail and defend an endorsement of an accommodationist approach to hate speech regulation.

Keywords: Hate speech, First Amendment, freedom of expression, offensive speech, content regulation

Suggested Citation

Massaro, Toni Marie, Equality and Freedom of Expression: The Hate Speech Dilemma (1991). 32 William & Mary Law Review 211 (1991); Arizona Legal Studies Discussion Paper. Available at SSRN: https://ssrn.com/abstract=2584632

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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