1st & 14th Amendments & Hate Speech
crossf at mail.utexas.edu
Mon Mar 5 10:24:09 PST 2007
As a threshold issue, I would be interested to see evidence on the harms of
hate speech. Surely it can't be enough to ban speech on the grounds that
it is considered "bad" or "immoral." The case must rest on the speech
causing actual harms, I would think. I'm open to evidence, but I would
think the most flagrant forms of hate speech are readily dismissed and
serve only to make the speaker appear the jackass. Banning more subtle
forms obviously does raise the slippery slope scenario.
One other consideration is important -- speech restrictions are reliant on
the government enforcing and the courts' applying. Even if a theoretical
ban on hate speech were justifiable, one needs to demonstrate that it will
function as proposed, when implemented. I've got a strong suspicion that
the first targets of hate speech prosecutions would be the Black Muslims.
At 12:10 PM 3/5/2007, Robert Sheridan wrote:
>Isn't this what time, place & manner restrictions are generally
>about? They allow the message content to be delivered and debated while
>restricting the means of delivery such that we must, for example, speak by
>turns in court, obtain a parade permit and only demonstrate here, not
>there. So if a young S.F. Asian Week reporter named Eng writes a column,
>which is published, entitled, "Why I Hate Blacks," provoking outrage and
>apology, it forces attention on hostility between groups, public meetings,
>etc., but no injunction against publication.
>Part of the problem is that what often happens is that a restriction is
>promulgated without a good explanation of the principle that under the
>First Amendment any idea can be promulgated and debated, provided only
>that it is done in a manner and place (and time) that rioting will not
>occur, with consequent bashing of heads, etc.
>Perhaps the schools wishing to adopt anti-hate-speech codes need better,
>more practical lawyers who are able to make the point.
>On Mar 5, 2007, at 9:57 AM, Steven Jamar wrote:
>>1.Not all in academia favor regulating hate speech -- many, many, and I
>>suspect most do not.
>>2.One can be for free speech and still be for limits on it. We have
>>limits. There are, of course, some (in academia especially) who take an
>>absolutist approach to free speech.
>>3.Free speech and the respect for the inherent dignity of each person,
>>and principles of inclusion and equality are indeed at loggerheads in
>>some instances. So is equality and special treatment for religion.
>>4.Every hate-speech legal scholar I have read (which, I am sure is not
>>all of them) struggles with the problem of where to draw the line and the
>>principled basis on which to draw it. That line drawing still exists in
>>free speech, of course, and we seem able to live with it.
>>On Mar 5, 2007, at 12:07 PM, Sean Wilson wrote:
>>>I am amazed at how academia appears to have turned its back upon free
>>>speech. It leads me to believe that the 60s generation and its progeny
>>>in academia never really believed in anything other than the assertion
>>>of its own political drama. I see a link between a set of attitudes that
>>>became hegemonic in academia after the 60s generation took power -- that
>>>the Court is "political" (in a non-descriptive sense), that ideology
>>>governs it, that knowledge is constructed, that morality is positional,
>>>that fundamentals only serve clientele, etc, etc, -- with the these
>>>anti-hate-speech arguments. Their goal seems to be nothing other than
>>>the establishment of a new set of generational biases.
>>>What is nice about the speech regime that became solidly constructed in
>>>the 1960s is that it seemed to transcend ordinary politics. The Court's
>>>content restriction doctrine is really one of the only areas of law
>>>where salient political conflict is resolved with less opinion
>>>differentiation among the justices (conservative and liberal judges tend
>>>to agree more). It is also one of the only areas where the epistemology
>>>of the decision making seems more a Kantian in flavor. My favorite is
>>>the confessional offered by Kennedy and Scalia in their concurring
>>>opinion in Texas v. Johnson -- that "law" requires them to vote for
>>>something they do not like.
>>>Isn't that the essence of what this area is all about? Why do you want
>>>to destroy it by constructing it around your favorite set of urges? If
>>>all that law in a grandiose sense amounted to was generational hegemony,
>>>we might as well not have constitution and just play like Britain does.
>>>Don't you understand that the fencing off of unpleasant things around
>>>the protection of "law" is what gives the concept its value?
>>>It used to be that academics looked, like philosophers, for better
>>>foundations. It used to be that buiding was better than destroying, and
>>>that encouraging the restraint of passion around cognition was still a
>>>sort of "virtue." Honestly I think that all of this talk about the
>>>politics of law over the last 30 or so years is really nothing other
>>>than a talk about a generation that has spent a lifetime wanting its
>>>cake and eating it too.
>>>Regards and cut me some slack for free speech, huh?
>>>Dr. Sean Wilson, Esq.
>>>Penn State University
>>>SSRN papers: <http://ssrn.com/author=596860>http://ssrn.com/author=596860
>>>Have a burning question? Go to
>>>Answers and get answers from real people who know.
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>>Prof. Steven D. Jamar vox: 202-806-8017
>>Howard University School of Law fax: 202-806-8567
>>2900 Van Ness Street
>>NW <mailto:stevenjamar at gmail.com>mailto:stevenjamar at gmail.com
>>DC 20008 <http://iipsj.com/SDJ/>http://iipsj.com/SDJ/
>>"In these words I can sum up everything I've learned about life: It goes
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