Sex/Gender Outsiders, Hate Speech, and Freedom of Expression: Can They Say That about Me?

By Martha T. Zingo | Go to book overview

perience from hate speech in a polity shaped by both the First Amendment and discrimination against sex/gender outsiders -- as characterized in the cases of State of Ohio v. Phipps43 and Bowers v. Hardwick. 44 Chapter Five analyzes the judicial response to hate regulations in four cases: Doe v. University of Michigan, 45 UWM Post. v. University of Wisconsin, 46R.A.V. v. St. Paul,47 and Wisconsin v. Mitchell. 48 Finally, Chapter Six concludes that sex/gender outsiders should be wary of hate speech restrictions, especially if those restrictions are not severely limited or are not linked to a comprehensive political, legal, and social agenda designed to eliminate discrimination on the basis of gender identity and affectional orientation/preference.


NOTES
1
For example: the St. Paul Bias-Motivated Crime Statute; ACLU-NC Policy Concerning Racist and Other Group-Based Harassment on College Campuses; University of California/Office of the President University-wide Student Conduct: Harassment Policy; Stanford University: Interpretation of Fundamental Standard; the University of Michigan Policy on Discrimination and Discriminatory Harassment; and the University of Wisconsin Design for Diversity.
2
Words exemplifying these characteristics will not appear in this book, as I assume that no one who lives in the U.S.A. has been shielded from such words or lacks knowledge of at least some of the vocabulary at issue. To repeat derogatory words for the mere sake of illustration would perpetuate the same lack of sensitivity and potential injury to the targeted class. The final reason these words will not appear here is, to paraphrase Audre Lorde's poem, "...a promise I made" myself to strive "never to leave [my pen] lying in either somebody else's [or my own] blood." For the complete version of the poem, see: Audre Lorde, "To the Poet. . ." at 40 [with a nod to Matsuda ( 1989) at 2329 fn.49, for the reminder].
1
3. Within law, "sex" and "gender" are generaly used interchangeably, thereby signifying that these terms are considered to be synonymous. As Mary C. Chase points out, however, "this interchangeability of the words 'sex' and 'gender' has contributed to some analytic confusion between the categories of male and female, on the one hand, and masculine and feminine, on the other" [at 10]. She observes that "[a]s most feminist theorists use the terminology, 'sex' refers to the anatomical and physiological distinctions between men and women [e.g., women typically can get pregnant; men cannot]; 'gender,' by contrast, is used to refer to the cultural overlay on those anatomical and physiological distinctions [e.g., females are conventionally deemed to be "emotional," "tentative," "passive," and "yielding"; males are traditionally deemed to be "rational," "firm," "aggressive," and "unyielding"]" [Id.; see also: Id. at 12-13; Bem ( 1974) at 155-157; Valdes ( 1995) at 56-71; Chase further notes that affectional orientation/preference is, in this society, primarily determined "by the sex the object(s) of one's desire bears to one's

-7-

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Sex/Gender Outsiders, Hate Speech, and Freedom of Expression: Can They Say That about Me?
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Acknowledgments xi
  • Chapter 1 - Social and Legal Condition of "Outsiders" 1
  • Notes 7
  • Chapter 2 - Free Speech and the Hate Speech Controversy 17
  • Notes 42
  • Chapter 3 - Equality Jurisprudence and Suspect Classifications 51
  • Notes 82
  • Chapter 4 - Speech, Hate, and (non-) Discrimination 101
  • Notes 127
  • Chapter 5 - Judicial Response to Hate Regulations 139
  • Notes 168
  • Chapter 6 - Conclusion 177
  • Notes 181
  • Bibliography 183
  • Index 211
  • About the Author *
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