A considerable body of persuasive legal literature supports the thesis that racist or sexist hate speech should receive reduced, or even no, protection under the First Amendment.1 As we have seen in Chapter 2, the arguments are coherent and powerful. The empirical premises for the new First Amendment theory are, first, the scientific falsity of explicit or implicit racial or sexual stereotyping; and second, the harm such speech does to the victim. The person who is called "kike," "nigger," or "fag" suffers emotional humiliation and personal loss of dignity.2 The victim feels threatened, humiliated, and diminished. It is asserted that he or she may suffer temporary or permanent psychological harm. Further, such expression, it is again argued, tears the weave of the community in which the speech is made, breaks down civil discourse, and incites weak-minded onlookers to similar thoughts and words. Finally, the ideational content of the utterance is minimal.
The traditional civil-libertarian response is predictable.3 The First Amendment is designed to protect disgusting speech from the censorship of government. The offensiveness of the speech in question is never a reason for removing it from protection of the First Amendment. There are the usual exceptions--e.g., fighting words,4 obscenity,5 defamation,6