Opposing Hate Speech. Anthony Cortese. Westport, CT: Praeger, 2006. 229 pp. $39.95 hbk.
In ruling on everything from campus speech codes to the Nuremberg Files Web site, U.S. courts have found it difficult to strike a proper balance between preventing harms caused by speech and protecting individual expression. In Opposing Hate Speech, Anthony Cortese criticizes those efforts and blends social science, critical race theory, and constitutional analysis to argue for a greater societal commitment to the fight against words that hurt.
Cortese, a professor of sociology at Southern Methodist University, concentrates his focus on hate speech that denigrates people on the basis of race or ethnic origin, religion, gender, or sexual orientation. Using cultural-transmission and group-identification theories, he offers a four-stage discrimination model for classifying and measuring hate speech based on its severity. "Unintentional discrimination" is speech that is offensive to minorities but is not purposely meant to harm-this is Stage 1 hate speech, which can be remedied by education. Stages 2 and 3 hate speech are more severe because they are intentional, with Stage 3 hate speech inciting hatred toward minorities. Education, institutional speech codes, and litigation are possible remedies for these types of hate speech. Stage 4 hate speech goes even further and incites or encourages physical violence toward minorities; this type of speech currently lacks legal protection under the "fighting words" doctrine or the clear and present danger test.
Cortese returns to this model and applies it to examples of hate speech throughout the book, but he never fully fleshes out how it might work in a court of law. In the chapter on religious hate speech, for example, he offers Bill O'Reilly's comparison of the Koran to Mein Kampf as a Stage 3 offense because, he says, it "seems to be designed to promulgate feelings of hatred for Muslims." But another person (or court) might view this incident as Stage 2 (intentionally denigrating minorities) or perhaps even Stage 1 (offending minorities, but not on purpose). This example and others show the line-drawing problems that arise in trying to assign arbitrary values to speech-problems that Cortese does not address, much less resolve.
Instead, Cortese's main purpose seems to be to show that the current legal regime is not working, and in making this argument he raises some provocative points. Traditional free speech jurisprudence has not solved the problem of hate speech, he argues, because judges have taken an overly absolutist view of the First Amendment. …