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

Assessing the benefits of hate speech and pornography bans involves two related yet separate inquiries: an evaluation of the harms possibly caused by this speech and a prediction of the effectiveness of the prohibition.

In calculating the possible harms of hate speech, it is once again crucial to distinguish between hate speech that is part of public discourse--such as racist ideology expressed at the speaker's area of a public park, in a pamphlet handed out on the street corner, or in a book sold at a neo-Nazi bookstore--and racist expression that is not part of this discourse--such as the use of racist fighting words or racist remarks in the classroom. It is true that the harm caused by face-to-face racist epithets or racist tirades by a classroom instructor overlap to some extent with the injury caused by racist public discourse, but to a much larger extent the harm is distinct. I have already considered racist fighting words and campus hate speech and have shown that current doctrine may well permit the prohibition of much of this expression through properly drafted regulations. Here, however, as throughout most of this book, I am concerned with proposals to broadly ban hate speech from public discourse; thus I focus on the injury caused by this speech.

The expression of racist ideas as part of public discourse is alleged to cause both direct and indirect injury to minorities. Hate speech is said di

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