Hate Speech, Hate Crime, and the Constitution
[T]olerance of hate speech risks becoming a species of endorsement of such speech. It encourages the view that "it can't be all that bad if it is not prohibited." Those who see efforts to regulate group libel as taking us down a "slippery slope" to censorship pay too little attention to a second "slippery slope"-- one which can produce a swift slide into a "marketplace of ideas" in which bad ideas flourish and good ones die."
Professor Abraham S. Goldstein, Yale Law School
IMAGINE THAT JOHN DOE, a white man screaming anti-Asian epithets, beats an Asian man with a baseball bat. Doe confesses that he dislikes Asian people, because he thinks they are responsible for his unemployment. Imagine further that Richard Roe, also a white man, beats an Asian man with a baseball bat, while screaming nonracist curses and obscenities. Roe explains that he was appalled and angered by the victim's cheering for the Boston Red Sox and booing the New York Yankees. Both Doe and Roe are convicted of aggravated battery. Roe is sentenced to two years imprisonment, the usual sentence for aggravated battery. Doe is sentenced to seven years imprisonment, the judge explaining that his anti-Asian prejudice requires the severest possible sentence. Does Doe's punishment violate the First Amendment? Civil libertarians, torn between commitments to equality and free speech, are divided on this question. 1 On the one hand, for example, the national American Civil Liberties Union (ACLU), in its amicus brief to the U.S. Supreme Court