THE COSTS OF REGULATION
Some of the asserted costs of broad hate speech and pornography bans stem directly from the regulations themselves. Such costs include the potential misapplication of these laws to speech not intended to be prohibited and the selective use of these laws against minorities. Other costs are indirect. One potential indirect cost often overlooked, particularly by those who advocate adoption of these laws, is the general weakening of free speech doctrine that might result from modifying it to permit broad hate speech and pornography bans. In this chapter I consider only the direct costs, postponing the question of the effect on free speech in general to the next chapter.
As with the asserted benefits of hate speech and pornography regulation, many of the asserted costs are quite speculative, a few even fanciful. Perhaps the singularly most unpersuasive argument against banning hate speech and pornography is the alarmist claim that modifying free speech doctrine to permit the suppression of hate speech and pornography will lead us down the path to totalitarianism. Like the argument that not suppressing hate speech in this country invites another Holocaust, the argument that allowing the suppression of hate speech and pornography will lead to American Buchenwalds and Auschwitzes cannot be taken seriously. To begin with, it was not until 1957 that the Supreme Court suggested that the First Amendment limits governmental power to ban sexually oriented material, and it was well into the 1960s before the Court began to define and enforce these limits with any rigor. Before that, government pretty much had carte blanche to define and ban pornography, at least so far as the federal Constitution was concerned. Similarly, until