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

By James Weinstein | Go to book overview

6
THE COMPLEX RELATIONSHIP BETWEEN FREE SPEECH AND EQUALITY

Neutrality, at least in the formal sense, is free speech doctrine's strong suit. This doctrine steadfastly refuses to exalt any norm, even the most basic ones, above the fray of public discourse and treats the most pernicious ideas as solicitously as benign ones. It is not surprising, therefore, that the radical claim that modern doctrine discriminates against minorities and women does not withstand analysis. Radical critics are on somewhat stronger ground, however, when they argue that the effect of this neutrality is to perpetuate and reinforce racial and gender inequality.

The traditional liberal view is that free speech and equality, far from being conflicting values, are consonant and reinforcing. For instance, liberal philosopher Ronald Dworkin writes that "[t]he most fundamental egalitarian command of the Constitution is for equality throughout the political process," which demands that "everyone, no matter how eccentric or despicable, have a chance to influence policies as well as elections."1 Similarly, the liberal Warren Court pushed both equality and free speech rights further than they had ever been extended before and rarely had to choose between them. In a seminal free speech decision, Justice Thurgood Marshall declared that "there is an 'equality of status in the field of ideas' and government must afford all points of view an equal opportunity to be heard."2

Radical critics, in contrast, tend to see free speech and equality as competitors in a zero-sum game: Free speech's gain is equality's loss, and vice versa. They argue that in light of the great disparities of wealth and power, free speech's formal equality results in massive substantive in

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