What speech businesses / colleges / restaurants may engage in

[Rico Sebastian Liwanag]

Eric,

        Hate speech may impact not only on "equal liberties" but also on freedom
of speech itself.  Owen Fiss of Yale says that hate speech is restricted
because it discourages the target group from participating in the
deliberative activities of society.  They feel less entitled and less
inclined to voice their views in the public square, and withdraw unto
themselves.  It is as if the state intervened to silence them.


Rico Sebastian D. Liwanag
Associate Solicitor
Office of the Solicitor General
Makati City, Philippines


At 09:22 AM 11/23/99 +0800, Eric Vera wrote:
>  I have a vague idea on what test to apply to determine if speech should be
>protected or proscribed:
>
>First, here are my assumptions:
>
>  1. I assume a libertarian theory in the tradition of John Rawls,
>particularly his greatest equal liberty principle.  It reads: "Each person
>is to have an equal right to the most extensive total system of basic equal
>liberties compatible with a similar system of liberty for all."
>
>  2. The right to free speech falls under this set of liberties.
>
>Question:  Does the right include speech that undermines this total set of
>liberties?
>
>  Answer:  As a practical matter, if the society feels that such speech
>would indeed undermine (i.e., directly threaten) adherence to the set of
>liberties or any of its parts, society would be justified in restricting
>that speech.  The principle here is that the only justification for
>restrictng liberty is where the exercise of liberty threatens the existence
>of liberty.  Hence, whether a "No Chinese welcome here!" sign should be
>taken down depends on whether exercises of free speech like this will
>undermine the existence of equal liberties for all.  This will also depend
>on the historical social conditions.  If it's an idea that people can take
>seriously, given the social climate, then the speech threatens liberty, and
>should be proscribed.  On the other hand, if the institutions of equal
>liberty are more stable, and not enough people are going to take it
>seriously, then liberty is safe, and the speech may be *tolerated*.
>
>  Compare the two signs:  "White men's club:  White men get 20% discount"
>and "Ladies Night!  Women get 20% discount and complimentary drinks!"
>
>  I think the problems with my proposal involve the issue of what actually
>forms part of the set of liberties.  My first answer would be "the Bill of
>Rights" but I seem to beg the question here:  I am proposing a test that
>will determine the limits of the Bill of Rights and when asked about the
>details of my test, I seek refuge in the same Bill of Rights.
>
>  Is abortion a liberty?  If it is, then signs like "We believe abortion is
>murder!" loses its protection and I am not prepared to argue this.  On the
>other hand, "This establishment will serve neither women who have had
>abortions nor doctors who perform them!" doesn't sound like it deserves
>protection.
>
>  Nevertheless, I do believe the test could take us on the right track.  The
>only problem is determining which liberties need to be protected.
>
>  Hmmm ... perhaps we should look at why hate speech is restricted.  If the
>speech aims only to express an idea, it is protected.  On the other hand, if
>the speech also has the actual effect of undermining equal liberties, it
>should be proscribed.  I agree that "making minorities feel good" sounds
>unconvincing as a basis for civil liberties/rights.
>
>Eric Vera
>
>DAVID E. BERNSTEIN wrote:
>
>> To add my two cents to this discussion, I think there is a distinction
>> between requiring a person to refrain from acts of discrimination, and
>> prohibiting that person from expressing his dissent from the law while
>> obeying it.  Let's posit a landlord who wants to put up a sign in his
>> building that says "I hate kikes, and would never rent to them
>> voluntarily but the law says I have to rent to everyone, and, therefore,
>> I do not discriminate on the basis of religion or ethnicity," and,
>> indeed, he rents to an obviously Jewish "tester" with no hassles. I
>> don't see how the landlord can be held civilly liable for his sign
>> consistent with either the letter or the spirit of the First Amendment,
>> or liberal principles more generally.  (If you think the sign is too
>> much, how about a landlord that places an advertisement in the newspaper
>> to the same effect?)  It's true that no self-respecting Jew (will want
>> to live there which is why such a sign seems to be illegal under the
>> Fair Housing Act) , but so?  It also is possible that the sign will lead
>> the average Jew to suspect that he might not get equal treatment as a
>> tenant.  But, if that actually happens, that could be prosecuted
>> civilly.
>> If the purpose of the civil rights laws is simply to make all members of
>> minority groups feel good at all times, then we will have inherent First
>> Amendment problems.
>>
>> David E. Bernstein
>> Associate Professor
>> George Mason University
>> School of Law
>> 3401 N. Fairfax Drive
>> Arlington, VA 22201
>> (703) 993-8089
>> dbernste at wpgate.gmu.edu
>> <http://members.aol.com/deliotb/home.html>
>
>