Hate Speech and the American Community
By the 1990s the protection of hate speech under the First Amendment was more firmly established in the law than ever before. In the international context, the contrast between American law and policy and that of the rest of the world was also greater than ever. Other countries had steadily moved in the opposite direction, toward the formal prohibition of racial and religious propaganda.
Few Americans were aware of just how unusual their country was on this issue, and not many understood how the commitment to free speech had come to pass. Many assumed it began with the ratification of the First Amendment in 1791. Others thought it was something imposed by the Supreme Court -- what Robert Bork has called the "imperial judiciary."1 The specifics of how this commitment developed, and particularly how recently it occurred, were understood only by specialists in First Amendment law. Many Americans found the protection of hate speech very troubling, asking why the Bill of Rights compelled us to put up with distasteful things.
The answer is that the First Amendment itself did not force us to do anything. The First Amendment came to protect hate speech because we chose to interpret it that way. "We" in this context refers to the entire body of people who ever spoke or wrote on the subject: in public debate, policy statements, law review articles, briefs and arguments in court, and court decisions over the course of nearly seventy years. To be sure, these people were not the mass of average Americans. The key actors were members of a policy-making elite: judges, lawyers, activists. But though this collective decision generated protests over the years, it never sparked