Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine

By James Weinstein | Go to book overview
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INTRODUCTION

A recent Supreme Court decision declares: "[I]t is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."1 Such claims are red flags to radical theorists, who deny that neutrality exists in the political world that legal rules inhabit. Radical legal theorists, like their kindred spirits in philosophy, history, and literature, view such assertions as just so much rhetoric disguising what is in fact some oppressive value choice imposed by elites on the less powerful.

Radical legal critics, especially adherents of "outsider jurisprudence" and critical race theory, have good reason to be suspicious of neutrality claims. American legal history is replete with what can now be recognized as outright oppression of racial minorities dressed up as the inevitable result of the application of some neutral principle. In the notorious case of Plessy v. Ferguson, the United States Supreme Court upheld a Louisiana law requiring "equal but separate" accommodations for "white" and "colored" railroad passengers.2 The Court brushed aside the claim that despite its formal neutrality in the treatment of white and black, the law was nonetheless based on racist notions of black inferiority. "[T]he assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority," the Court explained, "is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

The Plessy travesty was made possible by a brand of jurisprudence that had its heyday in the late nineteenth century and was so ubiquitous that it had no name but today is referred to, usually derisively, as "legal formalism." Formalist judges believed, or at least acted as if they did, that cases could be decided by mechanical application of legal rules. A key feature of this jurisprudence is its claim that it leaves no room for value

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