Opposing Hate Speech

Opposing Hate Speech

Opposing Hate Speech

Opposing Hate Speech


What happens when two deeply held American values, freedom of expression and freedom from discrimination, clash? In any well-established democratic society, people have the right to free speech as well as the right to equal treatment and protection under the law. But when one person's speech harms another person on the basis of race, ethnicity, religion, gender, or sexual orientation, it may qualify as hate speech and be subject to restriction. Cortese argues that restricting hate speech does not violate the guiding principle behind the First Amendment, but he is not eager to see more lawsuits. Effective restriction, he asserts, should not focus on litigation but on speech codes and moral education.

Is there a limit to freedom of expression in a democracy, and if so, where should the line be drawn? In attempting to answer that question, Cortese makes a solid case for paying attention to context and common sense. Some hate speech is more reprehensible than others; not all discriminatory statements are equally serious. There is a discernible difference between an offensive remark and an incitement to commit murder. There is also a fundamental distinction between intentional and unintentional discrimination. In this book, Cortese rethinks some of the issues that have been silenced in ways harmful to many- especially those that have been brutalized, oppressed, manipulated, dominated, segregated, and disadvantaged. We should recognize the grave injuries inflicted by hate speech and the potential tensions between legal solutions to those injuries and the First Amendment. We must push for moral education, educational speech codes, and when necessary, a formal, legal-structural response to hate speech in order to reinforce our commitment to tolerance as a value.


Whoever you hate will end up in your family.

—Chris Rock, actor/comedian

Freedom of speech does not mean freedom to terrorize or incite hatred. Is burning a cross in the front yard of a Black family that has recently moved into a previously all-White neighborhood an expression of free speech protected by the First Amendment? Is angrily shouting “nigger” repeatedly at a Black high school football referee simply exercising the democratic ideal of freedom of expression? Is a White, heterosexual, “Christian” male, who makes homophobic comments in his Literature and Cultural Diversity class merely exercising his constitutional rights? Were protestors led by the Reverend Fred Phelps at the funeral of Matthew Shepard, carrying signs with the words “Matthew burns in hell” and “AIDS cures faggots,” just exercising the democratic principle of free speech?

Hate speech denigrates people on the basis of their race or ethnic origin, religion, gender, age, physical condition, disability, sexual orientation, and so forth (Sedler, 1992). Hate speech says much more about the messenger than the target. Hateful words spoken with the blessing of absolute legal protection (based on the supremacy of the First Amendment) have muted minority messages and have resulted in micro-aggressions and other forms of unequal treatment.

The primary goal of Opposing Hate Speech is to provide a stimulating rebuttal and rigorous strategy for productive opposition to speech that incites hatred or violence. There have been calls for the legal restriction of hate speech by critical race theorists. The legal hurdles for establishing proof of emotional damage are staggering (see Chapter 1). But we are overly eager to sue. The number of attorneys and court cases in the United States is overwhelming compared to other countries. Litigation is probably . . .

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