The Future of Free Speech Law

By R. George Wright | Go to book overview

to excessive judicial intolerance of racial epithet speech, or of extremist speech generally. It may well be that whatever pedagogical benefits that can be drawn from the technique Bollinger recommends are in fact already being otherwise extracted. There is certainly no logical necessity that civic tolerance be enhanced particularly through the vehicle of restraint in even the broad area of speech. There is arguably already a remarkable excess of voluntary, quasi-principled self-restraint by the courts, as the agent of the broader society, in other areas of the law such as criminal sentencing. It can reasonably be argued that the sentences ordinarily actually served for violent crimes are not rationally explainable on any established theory of criminal sentencing, apart from a curiously indulgent sort of self-restraint or lack of moral seriousness on the part of society.140 Plato was among the first to note roughly this phenomenon as characteristic of the democratic society in the course of its decline.141 For a variety of reasons, then, Bollinger's argument does not establish the inadvisability of legal restraints on racial epithet speech.


NOTES
1.
Pub. L. No. 88-352, 78 Stat. 243 (codified as amended at 42 U.S.C. §§ 2000(c)-2000(h) (6) ( 1982)).
2.
See, e.g., Gaiters v. Lynn, 831 F.2d 51 (4th Cir. 1987).
3.
See, e.g., Sambo's Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981).
4.
See, e.g., Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (Ct. App. 1981).
5.
See, e.g., Resetar v. State Bd. of Educ., 284 Md. 537, 399 A.2d 225, cert. denied, 444 U.S. 838 ( 1979).
6.
See, e.g., Delgado, Words That Wound: A Tort Action For Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev.133, 135 n.12 ( 1982); Report of the Committee on Freedom of Expression at Yale, 4 Hum. Rts.357 ( 1975).
7.
Compare, e.g., Delgado, supra note 6 (detecting only minimal free speech constraints) with Heins, Banning Words: A Comment on "Words That Wound," 18 Harv. C.R.0C.L. L. Rev.585 ( 1983). For a sensitive treatment, see Matsuda, Public Response to RacistSpeech: Considering the Victim's Story

-83-

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The Future of Free Speech Law
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • Note xiv
  • 1- Speech in the Constitutional Sense 1
  • Notes 23
  • 2- Hustler Magazine V. Falwell and The Hypertrophy of Free Speech Protection 33
  • Notes 50
  • 3- The Problem of Racist Speech 57
  • Introduction 57
  • Notes 83
  • 4- Free Speech and The Public School Student 95
  • Notes 123
  • 5- Fowler V. Board of Education: A Case Study in the Scope of Public School Teachers' Free Speech Rights 131
  • Introduction 131
  • Notes 148
  • 6 - Defining Obscenity: The Criterion of Value 153
  • Introduction 153
  • Notes 178
  • 7 - How to Decide Close Cases: An Illustration 185
  • Introduction 185
  • Conclusion 207
  • Notes 209
  • 8- The Pathological Complexity Of Free Speech Regulation 219
  • Notes 241
  • Conclusion: The Future of Freedom of Speech 255
  • Notes 263
  • Selected Bibliography 267
  • Index 269
  • About the Author 273
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