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

Public debate on important issues such as abortion, affirmative action, and presidential impeachment increasingly resembles professional wrestling more than rational discourse among citizens. Such no-holds- barred screaming matches, marked by invective, distortions, and even outright lies, are no doubt the product of the mass media's concern for ratings and audience share rather than for intellectual content. Perhaps this unfortunate state of affairs is also partly due to the mistaken belief that the best way to offer a balanced presentation is to encourage two people with views on opposite extremes to fight it out. It is regrettable enough, although perhaps understandable, that popular debate has tended to degenerate in this way. More troubling and less understandable is that academic discussion is often marked by the same defects.

In the early 1990s, I attended a free speech conference at a large mid- western university. On a panel with me was a well-known radical critic who claimed that contrary to popular belief, free speech is useless to oppressed minorities, as is shown by the Supreme Court's invariably conU+0AD struing the First Amendment against civil rights protestors. On another panel a speaker took the position that free speech doctrine did not allow the prevention of racially or sexually harassing speech in the workplace. At about the same time as this conference, I was doing research for an article on hate speech regulation on campus. I was dismayed with how much participants on both sides of the debate distorted facts to support their position. For instance, in a law review article attacking campus codes, Congressman Henry Hyde alleged that "at UCLA, the editor of the student newspaper was suspended" for running a cartoon critical of affirmative action.¹ In fact, the student was not suspended from the university, as Hyde implied, but was suspended from the newspaper by a student-run communications board.² Similarly, in an article arguing in

-189-