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

By Martha T. Zingo | Go to book overview

CHAPTER 2
Free Speech and the Hate Speech Controversy

FREE SPEECH JURISPRUDENCE: HISTORICAL OVERVIEW

The First Amendment of the U.S. Constitution states, in part, that "Congress shall make no law . . . abridging the freedom of speech." This freedom is deemed a fundamental right, because it assures individual self-fulfillment or autonomy; 1 it is a means of advancing knowledge and searching for truth; 2 it gives all members of society an opportunity to participate in the political process of self-governance; 3 and it provides a safety valve for society. 4 This last factor is especially important, because suppression of discussion is injurious to society. According to Thomas Emerson, suppression makes "rational judgment impossible, substituting force for reason; [it] promotes inflexibility and stultification preventing society from adjusting to changing circumstances or developing new ideas; [and it] conceals the real problems confronting society by diverting public attention from critical issues." 5

The fact that freedom of speech is fundamental, 6 however, does not render it an absolute right. 7 According to Chief Justice Vinson, freedom of speech "is not an unlimited, unqualified right[;] . . . the societal value of speech must, on occasion, be subordinated to other values and considerations." 8 Consequently, both the federal and the state governments are permitted to restrict an individual's or group's freedom of speech to some degree. 9 As Justice Oliver Wendell Holmes observed in Schenck v. United States,

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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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