DOES FREE SPEECH DOCTRINE DISCRIMINATE AGAINST WOMEN AND MINORITIES?
Radicals claim that contrary to the mythology propagated by civil libertarians, free speech doctrine is riddled with numerous exceptions that when critically examined are found to protect the interests of powerful forces in society. But when people of color and women want hate speech and pornography exceptions in order to defend their interests, they are told that the First Amendment permits no exceptions. A related claim of discrimination is based on the text of the Constitution: Radicals point out that although the First Amendment is just one part of the Constitution, free speech doctrine acts as if it were the only relevant constitutional norm. In particular, they assert that hate speech and pornography implicate the Equal Protection Clause of the Fourteenth Amendment but that free speech doctrine ignores this countervailing constitutional norm. Careful analysis of these indictments shows that they are, on the whole, unfounded.
According to Richard Delgado and David Yun, an examination of "the current landscape of First Amendment doctrine" reveals that the courts have "carved out" dozens of "exceptions" to the free speech principle, each of which responds to "some interest of a powerful group." But when