Banning Hate Speech and the Sticks and Stones Defense
Alexander, Larry, Constitutional Commentary
Black college students are the targets of racial epithets from fellow students. Members of the American Nazi Party march through the heavily Jewish Chicago suburb of Skokie, wearing brownshirts and swastikas. Female employees encounter various expressions of misogynistic or otherwise female-degrading views from fellow employees or supervisors in the workplace. What these events have in common is that in all of them, the targets of the speech claim that the speech is harmful to them. Moreover, in all of them, the targets have sought to have the hateful speech legally suppressed through injunction (in Skokie),(1) campus hate speech codes,(2) or Title VII's ban on various types of job discrimination.(3) Finally, in all of them, the speakers have raised a first amendment defense against the attempts at legal suppression.
A lot of recent scholarly attention has been focused on these and similar events, most of it concerned with whether and when the first amendment should bar suppression of this "hate speech."(4) In addressing this issue, I, like most of the scholars, shall take "hate speech" to mean epithets conventionally understood to be insulting references to characteristics such as race, gender, nationality, ethnicity, religion, and sexual preference. Such epithets are the central targets of most campus speech codes; and speech codes are unlikely to be drafted or interpreted to apply to more measured expressions of views about race and the like, even if the expressed views are quite odious, because of the obvious first amendment problems raised by any code banning more than epithets. Henry Louis Gates, Jr., has nicely illustrated the crucial distinction I wish to draw:
Contrast the following two statements addressed to a black freshman at Stanford: (A) LeVon, if you find yourself struggling in your classes here, you should realize it isn't your fault. It's simply that you're the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one. The policy's egalitarian aims may be well-intentioned, but given the fact that aptitude tests place African Americans almost a full standard deviation below the mean, even controlling for socioeconomic disparities, they are also profoundly misguided. The truth is, you probably don't belong here, and your college experience will be a long downhill slide. (B) Out of my face, jungle bunny.(5)
The concern with hate speech is a concern with statements like Gates's statement (B). Statement (A) is generally assumed to be within the bounds of protected expression.(6)
It is generally accepted by those on both sides of this issue that hate speech is harmful. The only question is whether, notwithstanding its harmfulness, hate speech should be considered constitutionally protected free speech. It is my aim in this brief essay to examine more closely the claim of harm. Exactly how does hate speech harm its targets in paradigmatic contexts? Among the. questions I shall ask are whether it is really the speech that is harmful, rather than what the speech reveals, and whether, when it is the speech and not the revealed knowledge that is harmful, the speech is harmful precisely for reasons that should make it constitutionally protected. Finally, I shall ask whether those who seek suppression of hate speech are really seeking to be free of the harm it imposes or are instead more ominously seeking suppression as an end in itself.
Before turning to the claim that hate speech is harmful, I should say something about the contours of the constitutional protection of speech that provides an essential background for my analysis of the issue. Although there are several general theories put forward by scholars and jurists to justify freedom of speech and its constitutional embodiment in the first amendment, these theories generally converge on one central proposition. …