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

I have so far made two major points regarding proposals to regulate hate speech and pornography: In Chapter 4 I demonstrated that free speech doctrine permits neither a broad ban on hate speech nor the suppression of sexually explicit but nonobscene material; in Chapters 5 and 6, I examined various claims that the failure of doctrine to recognize hate speech or pornography exceptions to First Amendment protection reveals a systemic bias against minorities and women, and concluded that these claims are grossly overstated. But neither of these conclusions does much to answer the question whether doctrine should be modified to permit the suppression of racist ideas and sexually explicit material demeaning to women. It is this difficult issue that I explore in this part of the book. Another way to pose the question is to ask whether American society would be better or worse off with such restrictions. This is obviously a large question, involving empirical, doctrinal, and theoretical inquiries. To assess the merits of hate speech and pornography regulations, we need to identify the harms of hate speech and pornography and then judge how effective the proposed restriction would be in eliminating these harms. We would also need to explore the possibility that these laws would be misapplied to squelch the expression of women and minorities. Relevant to these empirical inquiries is the experience of other

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