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

Many radical critics acknowledge that any attempt to ban the expression of racist ideology or to prohibit sexually explicit material demeaning to women is unconstitutional under current free speech doctrine. Indeed, the essence of radical attack on this doctrine--that it systematically undervalues the interests of women and people of color--presumes this result. Despite inconsistency with their larger claim, however, some radical critics maintain that there may be room under current doctrine for far- reaching restrictions on hate speech and pornography demeaning to women. Some mainstream commentators as well have argued that current doctrine may permit such speech restrictions. But these arguments are really little more than wishful thinking, for it is about as certain as anything can be in constitutional law that broad hate speech or pornography bans are unconstitutional.

I want to emphasize at the outset that in claiming that broad prohibition of hate speech and pornography would violate the First Amendment as currently interpreted by American courts, I am not claiming that this interpretation is either wise or correct. Whether doctrine should allow such restrictions is a much more contestable question, one that is the focus of Part 3 of this book. My assertion here is purely descriptive, namely, that such laws would be declared unconstitutional. I also want to emphasize that my claim of unconstitutionality is limited to laws that would

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