FW: LPBR: HATE SPEECH, PORNOGRAPHY, AND THE RADICAL ATTACK ON FRE E SPEECH DOCTRINE by James Weinstein (fwd)

[Volokh, Eugene]

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> -----Original Message-----
> Sent: Tuesday, April 25, 2000 12:05 PM
> To:   Weinstein Jim
>
> HATE SPEECH, PORNOGRAPHY, AND THE RADICAL ATTACK ON FREE SPEECH DOCTRINE
> by
> James Weinstein.  Boulder, Colorado: Westview Press, 1999.  282 pp.  Cloth
> $75.00. ISBN 0-8133-2708-3.  Paper $25.00.  ISBN 0-8133-2709-1.
> Reviewed by Donald A. Downs, Department of Political Science, University
> of
> Wisconsin, Madison.
> It was not until the 1960s that the United States Supreme Court began to
> truly liberalize the constitutional jurisprudence of free speech.  Today,
> virtually no country enjoys the degree of expressive freedom afforded
> individuals and groups in the United States, especially in such areas as
> racist rhetoric, libel and slander, campaign and electoral speech,
> advocacy
> of lawless action and violence, and, to a lesser extent, sexually explicit
> expression.
> Conservatives have often objected to the liberal model of neutrality.  But
> recent decades have witnessed a new attack, stemming from the Left.  This
> attack was foreshadowed by Herbert Marcuse's famous 1965 essay,
> "Repressive
> Tolerance."  Flouting the conventional wisdom (inspired by John Stuart
> Mill
> and Justice Holmes) that linked free speech and historical progress,
> Marcuse
> declared that a neutral speech policy cannot contribute to social progress
> and justice because the marketplace of ideas is rigged in favor of the
> repressive status quo.  To achieve true progress, speech policy must
> balance
> the scales by disfavoring socially and politically regressive speech.
> Thus
> was the notion of "progressive censorship" born.
> Marcuse's plea went largely unheeded at first, perhaps because the Left
> needed all the support it could get from the First Amendment during the
> tumultuous 1960s and early '1970s.  However, beginning with the famous
> Skokie case in 1977-8 (in which a Nazi party won its right to march in a
> town inhabited by many Holocaust survivors), progressive reformers began
> to
> seriously question the wisdom of protecting the speech that ethical people
> hate.  By the 1980s, what James Weinstein calls the "radical attack on
> free
> speech doctrine" had emerged.  While this attack has yet to influence
> First
> Amendment doctrine per se, it has rattled the world of scholarship and
> public discourse, and left its mark upon such policies as sexual and
> racial
> harassment in the workplace, domains which the Supreme Court has thus far
> left largely outside of the First Amendment's purview.
>       Weinstein focuses on the two most prominent radical attacks:
> critical race theory, and the anti-pornography feminist movement.
> Critical race theorists (Charles Lawrence, Mari Matsuda, Richard Delgado,
> and others)  advocate reorienting First Amendment doctrine in order to
> permit greater restrictions on various forms of hate speech.  They claim
> that hate speech causes psychological harm to individuals, and that its
> presence in society reinforces the racist status quo.  Such
> anti-pornography feminists as Catherine MacKinnon make similar
> Page 278 begins here
> arguments about pornography, the very existence of which they allege
> constitutes subordination, discrimination, and defamation of women as a
> class.  Though Weinstein's portrayal of these schools of thought is not
> particularly pathbreaking or original, it is accurate and fair.
> Radical critics also challenge First Amendment doctrine on a broader
> plane.
> In their eyes, the cardinal free speech principle of government neutrality
> toward speech is a myth.  "The claim that free speech doctrine is so
> pristinely neutral is, according to these critics, a lie.  To the
> contrary,
> free speech doctrine is, in their view, biased against minorities" (p. 3).
> Neutrality is a myth, critics assert, for three basic reasons: (1) hate
> speech and pornography serve the underlying racism and sexism of American
> society;  (2) when powerful groups (government, business) require
> exceptions
> to speech to support their interests (e.g., laws concerning plagiarism,
> copyright, intellectual property, disrespectful utterances to judges or
> teachers, conspiracy, official secrets, trade secrets, etc.), free speech
> doctrine obliges; (3) resources are unequally allocated in society, so
> only
> the powerful are really heard.
> Weinstein answers these claims, though he pays most attention to the first
> two.  He points out that the exceptions mentioned above are widely
> acceptable on grounds that have little or nothing to do with the content
> of
> the expression; they are limited to "contexts not dedicated to public
> discourse" (p. 72).  More importantly, he demonstrates that the claim that
> free speech doctrine is on balance harmful to minorities is considerably
> overstated.  His critique deserves close consideration because of its
> fairness, thoroughness, and the sharpness with which it dissects the
> claims
> of radical critics and their supporters, including Cass Sunstein and Owen
> Fiss.
> In the first part of the book, Weinstein presents an overview of modern
> free
> speech doctrine.  His analysis in Chapter 2 of the basic justifications
> and
> theories of free speech is pretty standard fare, but his ensuing
> discussion
> in this chapter of how the forging of modern doctrine in the '60s and
> thereafter was a response to the widespread censorship of the preceding
> era
> is noteworthy.  Weinstein's historical perspective is an updating of David
> Rabban's (1997) pathbreaking analysis of a similar process in the
> aftermath
> of World War I, in which such liberals as Holmes, Louis Brandeis, Roger
> Baldwin, and John Dewey reacted to the suppression of dissenting speech
> during World War I by championing civil liberties.  In Weinstein's story,
> however, the liberals prevail.
> Radical critics "ignore or trivialize the fact that current doctrine is
> largely a product of the failure of early cases to protect against
> governmental suppression of radical ideology at turbulent times in our
> nation's history" (p. 16).  This conclusion is buttressed by Weinstein's
> deft analysis of the complex relationship between free speech and equality
> in Chapter 6, in which he repudiates the claim that free speech doctrine
> has
> essentially ignored minorities.  "The claim that the courts 'invariably
> construed the First Amendment' against the civil rights movement is ... a
> gross misstatement of knowable and verifiable fact" (p.  117).  In fact,
> the
> civil rights movement and other advocates of social change took advantage
> of
> the liberalization of free speech to further their causes.
> Page 279 begins here
> Chapter 3 is a useful analysis of the nature and mechanics of modern
> doctrine. After canvassing the basic rules, Weinstein distills this
> labyrinthine realm into three fundamental criteria.  Speech is most
> protected by courts when: (1) it is on a matter of public concern; (2) it
> occurs in a setting or medium dedicated to public discourse (public forum,
> newspaper, Internet, etc.); (3) when the law or government action "raises
> or
> dispels suspicion that it has been enacted for some purpose contrary to
> core
> speech values" (e.g., viewpoint discrimination) (p. 49).  In Chapter 5 he
> shows that these principles permit only narrowly defined restrictions on
> hate speech and obscenity/pornography, not the broad restrictions that
> radical theorists desire.  For example, Title VII's prohibition of sexual
> and racial harassment in workplaces is consistent with modern doctrine, as
> are certain restrictions of unwanted exposure to hostile speech in private
> or face-to-face contexts.
> Such critics as Lawrence and MacKinnon charge that modern doctrine's
> protection of hate speech and pornography unduly compromises the equal
> protection values of the Fourteenth Amendment.  Weinstein responds that
> this
> is often a false dichotomy, except in limited circumstances.  First, the
> Fourteenth Amendment is a restriction on the state, not private action, so
> most forms of hate speech and pornography do not involve the equal
> protection clause.  More importantly, there is no evidence that the
> general
> presence of hate speech and pornography in public discourse (as opposed to
> their being targeted directly at individuals) contributes to inequality
> and
> discrimination.  And even if equality has been enshrined as the preeminent
> constitutional value (as Fiss has argued), this hardly means that we
> should
> grant it a special privilege against being attacked in public debate.  "In
> failing to suspend the normal free speech rules for hate speech and
> pornography, free speech doctrine does not discriminate against Equal
> Protection Clause values.  Rather, free speech doctrine merely fails to
> give
> equality special immunity from the rough-and-tumble of public discourse"
> (p.
> 90).
> The last chapters of the book deal with the pros and cons of modifying
> speech doctrine along the lines advocated by the radical critics.
> Weinstein
> informs his reasoning by the assumption that "free speech doctrine is more
> a
> product of experience than theory"-an understanding no doubt related to
> Weinstein's appreciation of history and his own experience as a civil
> liberties lawyer (he is also a professor of law at Arizona State
> University).  He argues that critics overstate the benefits of excluding
> hate speech and pornography from public discourse, and that the costs
> would
> be substantial.  Racist rhetoric is "already extremely marginalized" (p.
> 138).  Experience has shown that such restrictions often lead to
> unintended
> consequences.  For example, government has too often used new powers of
> censorship against groups that the supporters of these powers want to
> protect.  Pornography seems to be a different matter, for, unlike racist
> speech, it less obviously involves public discourse.  But the history of
> censorship of pornography is intimately linked to the censorship of art
> and
> literature, where "it is much more likely"  that government is acting "for
> some reason that the First Amendment forbids"  (p. 179).
>       The fact that Weinstein shows due respect for his foes makes his
> argument all the more powerful, as does the way he
> Page 280 begins here
> patiently dissects the positions with which he disagrees.  (A lengthy
> appendix deals evenly with the extensive empirical literature on the
> effects
> of pornography.)  The book will enhance any reader's understanding of free
> speech.  And Weinstein even offers something for radical critics of free
> speech: an opportunity to develop stronger arguments by dealing with the
> weaknesses he so tellingly exposes.
> REFERENCE:
>
> Rabban, David. 1997. FREE SPEECH IN ITS FORGOTTEN YEARS. Cambridge:
> Cambridge University Press.
>
> *****************************************************************
>
> Copyright 2000 by the author, Donald A. Downs.
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> Jennifer A. Segal, University of Kentucky.
> Previously published reviews may be obtained at the Law & Politics
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