Hate Speech in American History
The names are all too familiar -- "nigger," "kike," "wop," "mick," "spic" -- words that carry the baggage of centuries of racism and empty it out in hate. These words are often aimed at people like bullets. They foretell danger and evoke the shame of the past: slavery, riots, massacres, the Holocaust.
If these words are so hateful and hurtful, why not outlaw them? Why not punish anyone who uses them in public to deliberately insult another person? Other forms of harm are punished; why not punish this one? The function of criminal law, after all, is to define the standards of civilized society and prescribe penalties for behavior that violates those standards.
These questions introduce the subject of this book: hate speech. The issue before us is whether offensive words, about or directed toward historically victimized groups, should be subject to criminal penalties. Should it be illegal to call people names based on their race or religion? Should it be illegal to publish defamatory materials -- such as the notorious Protocols of the Elders of Zion -- that incite prejudice against a racial or religious group?
Almost every country prohibits hate speech directed at racial, religious, or ethnic groups.1 The United States, by contrast, has developed a strong tradition of free speech that protects even the most offensive forms of expression. The First Amendment is one of the glories of American society. It is celebrated as the protector of the most precious liberty of all: the right to express oneself and to participate in the democratic process. Free