Hate Speech Pornography and Radical Attacks On Free Speech Doctrine PDF
Hate Speech Pornography and Radical Attacks On Free Speech Doctrine PDF
Hate Speech Pornography and Radical Attacks On Free Speech Doctrine PDF
mes Weinstein
Arizona State University
?E
A Member of the l'erseus Books C;roup
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Pubfished in 1999 in the Ui~itedStates of Axrrrerica by Westview Press, 55UU Centml At~enue,
Boultler, Colorado 811301-2877, and in the Uirited Kingdom by Westview Press, 12 Hic3's
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THISBOOK 15 DEDICATED TO
THE MEMORY OF MY MENTORS
S, GOLDSTEIN,
KENMETH IRVINGHILL,
AND EDWATCZ)
B. IKVIIRIG
JR.
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1 Introduction
11 Conclusion
App~&x
Notes
Index
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I am indebted to many people for their help on this book: Paul Bender,
Keith Hunsakes, David K a p , Jefiie M a ~ h yRohert
, Postr Eugene Volob,
Leo Wiegmm, and an monymous "political scientist in a major northeast
university" provided helpful suggestions and comments; Mary Sigler and
Phyllis New supplied invaluable research assistance; reference librarian
Alison Ewing unfailingly located every source material I requested; copy
editor Mice Colwell cast her eagle eye on the manuscript; and Kay W b n
and Fran S c ~ trendered
t much-needed secretarial assistance,
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A recent Supreme Court kcision declares: "[Xlt is a central tenet of the
First Amenetment that the government must =main neutral in the mar-
ketplace of ideas."" Such claims are red flags to radical theorisb, who
deny that neutrality exists in the political world that legal rules irthabit.
Radical legal theorists, like their k i n d x d spirits in phiiosophy, history,
and fiterabre, view such assert;ORs as just so rwch rhetoric diswising
what is in fact some oppressive value choice imposed by eltites on the less
powedul.
Radicai leg& critics, especially adherents of ""outsider jurisprudencef"
and critical race theory have good reason t s be suspicious of neutrality
claims. Amaican legal history is replete with what can now be recog-
nized as outright opprest;ic,n of racial minorities dressed up as the in-
evitable result of the application of some neutral prhciple. In the notori-
ous case of Plessy v. fiyguson, the United. States Supreme Court upheld a
Louisiana law requiring ""equal but separate'h-accammodations for
"white" and ""clored" railroad passengerse2The Court brushed aside the
claim that despite its fomal neutrality in the treatment of white and
black, the law was na~~etheless based on racist notions of black h~feriority.
"[Tjhe ilssumption that the enfosced separation of the two races stamps
the colored race with a badge of inferioriwIwthe Court explained, "is not
by rt.ason of anythhg found hthe act, but solely because the cotored race
cf-tooses to put. that construction upon it."
The Plessy travesv was xnade possible by a brand of jurispnldence that
had its heyday in the hte ninetwnth century and was so ubiquitous that
it had no name but today is referred to, usually derisively, as ""legal for-
malism." h m a l i s t judges believed, or at least acted as if they did, that
cases could be decidttd by mechanical appfication of legal rules. A key
feature of this jurisprudence is its cfairn tha"lt leaves no room for value
choices by judges, whose role was to "find" the law, not "make" it.This
formalist mythology was exploded in the 1920s m d 1930shy the legal re-
a'rists, who dernmstrated the large extent to which vatue choice did, and
in fact must, enter into judicial decisions. Like Jcremy Batham's expos4
of r~aturallaw jurispmdence a century earlier, leg& realists s h w e d that
the value choices disguised by formalism often served economically pow-
erfzll inkrests at the expense of those less well-off.
Under the intellect-ualinfluence of the realists (as wetl as ihe experience
of the Great Depression), Supreme Court dact-rke became less famal and
abstract and more attuned to context and pragmatics, at kast so far as eco-
nomic matters were c o ~ ~ c e n ~The e d .1930s and 1940s saw the demise of al-
most all fomalist doctrine rela&~gto commercial mattem. It was not unlil
1954, however, that the Court declmd in Bwwn U. Rourd crf Edzantic,~that
segregation in public education i s ""Inherenw unewal.""s late as 1967,
trhe State of Virginia still argued that its antfmiscegc~atio law did not dis-
cl-imhate against black because it punished equally white m d black par-
tic@mts in interrad.aI mamiages. This time the Supreme Court recopized
trhe racist purpose of the f;?w and it~validakdit as a violation of the Equal
Protection Clause of the Fourteenth A~nenQment.~ But short-lived indeed
would be the Court" realism, especially with respect to race. By the 19130s,
formalism, which had never completely disappeared, wits agair~flowr-
ing.
Current Supreme Cou&jurisprudence is markcld by varjous "tests" &at
often serve to obscure vdue choice and by inurnation of fdse s
The Court in B r t , m v. Bf~nrr;lof E~fucationillvoked no f o m d tests to assess
whe&er black children were being deprived of equal protection of the laws
but instead forthri$t:ly dcrclmed Chat segregatio~~ "ger~watttsa feeling of hfe-
i o r i q as to their status ill the c mity that may affect their hearts and
minds in a way mfikely ever to be mdone," Today, in contrast, the Court
suhjecb racial classificiitio~~s tu "st-rict scPutiny," a test that requkes bo& &at
the cfassgicatim be desiped to acivmce a "'coqdling go^
est" m d that the means chosen to advmce that goal be '"necessary" to
sing on racial classiiicaticms in the i\bs&wtrixther than an
the history of racial oppression in h s cowtry' the Caurt was able to assimi-
late race-ccmscious affirna~veaction programs into the s m e juridicd cate-
gory as the racial segregatior~invdved in Plessy and Bnntm."~mal mcutral-
ity and false symmetry thus triumph once again. By treating all racial
classif c a ~ o m the same, modem formaiist doctru?lesucceds h&scu&g t-he
morai d3fere11ct. beween remedid programs desipled to ilzclzdde ~ ~ o r i t i e s
ist areas ist which they have historically been denied access m d the racist
schemes of exdtsion that made these remedies necessary inthe first place.
No wonder critical race theorists arc suspicious of modern free speech
doctrine, one of the most formalistic areas of the law and one that claims
to be assuring "neutrality"' in the marketplace of ideas. Words That
V V O Z ~ F a~ ~collection
, of essays by critical race theorists i4lari Matsuda,
Charles ZJawrence, Richard Delgado, and Kimberlh Crenshaw, boldly
chalXengcs this claim. of neutrality. The authors explain how racist speech
it; used to intimidate, degrade, and silerlice people of color and thus is an
importmt part of the mechanism by which minorities are subordinated.
When minorities seek legal protection from verbal assault, they am told
that laws against racist speech tun1 on the spe"kefs vitlwpoint and thus
violate the key neutrality command of the First Amendment. But the
claim that free speech doctrine is so pristinely neutrd is, according to
these critics, a fie. 'fo the conbay, free spmch dockine is, in their view, bi-
ased against minorities: Me11 powerful forces; in society complain that
speech is impairkg their interests, courts readily f h d exceptions to free
speech prkciples and allow regulation, as in the case of commefcrial and
industrial speech -and libel. But when minorities complain that racist
speech interferes with their educational amd emplopent opportunities
or causes severe emotional injuqy; these harms are discounted or ignored
and no exception is forthcomirlig. (31a d e q e r level, radical critics com-
plain that the whole idea of a "'neutral" marketplace of ideas is a fantasy
They point out that access to the mems of communication that f o m opin-
iorli in this coul7try is so expensiw as to be pmhibitive to marginafized
peaplle m d , in. any event, is controlled by forces that have no interest in
givhg voice to their ideas.
Radical feminist legal scholars make similar claims, and they, too, have
good =ason to be suspicious. If: late-nheteenth-century jurisprudence ob-
scured racial oppression, it made gender oppression invisible. Closely al-
lied to the formaljst claims of neutralifcy are claims that certain results are
dictated by the ""nature of things." It was nature that formatist judges in-
voked to uphold the legal exclusion of women from important roles in
civil life alid to confine them in the domestic sphere. fn 1872 the Court up-
k i d a Xaw forbidding womert to practice law.' "The natural and proper
tFvnidjty and delicacy which belongs to the female sex," ddeclamd Justice
foseph Bratlley in a concurring opinion, ""evide~litly unfits it for many of
the occupations of civil life." '"'[The nature of things," he conthued, ""in.-
dicates the domestic sphere as that which properly belongs to the domain
and functio~lisof woma~lihood.~~
As long as it took for the Court to achowledge racial, segrega.eion as a
tool of racial oppression, it took even longer before gender-based laws
wcsre invalidated as discrimination agirinst women. A few years before
Brown was decided, the Court upheld a state law that forbade a woman
from obhjning a b a t a d e r " license unless she was the wife or daughter
of a male o m e r of a licer~sedliquor estahlishme~lit." Tle Cotrtt accepted
the state's argument that the "protecting ovasight" of httsbanh or fa-
thers was necessary to minimize hazards to which "barnaids" would be
su:bject, and it refused wen to consider the passibility that'%he real im-
pulse behind this legislation was an unchivalrous desjl-e of male bar-
tenders to try to monopolize the calling."
Not until 1971 did the Suprrlme Court find that a law that discrimi-
nated agajnst w o m n violated, th.e Equal 13roteclj,onClause: It held uncon-
stitutional m Idaho law that gave preference to men over women in the
appaintmernt of administrators of estate^.^ But despite this 1fmi-t.d ard he-
lated recognition in this and subsequent cases that mfair and oppressive
discrimination against women did indeed exist, doctrinal fomalism
would once a g a h ohscurc? this reality*Three years later the Court ruled
that a stak's insura~cesystem that excluded pregnancy and childbirth
from disability co1~ragedid not discriminate against
Classifications based on pregnancy, conciuded the Court, do not discrimi-
nate OII the basis of g e d e r but berneer.1 "pregnant woMen and non-
pregnant persons.'' SirnilarZly; the Court found that a state law grmt-ing a
lifetime employment p~ferencein the state civil service far veterans-
over 98 percent of whom were male---did not constitute gender discrimi-
nation." Given this long-standing and often invisible bias against women
in h e r i c a n constitutional ducMn.e, radical feminists have good reason
to suspect that free speech doctrine is in rea[ity far from neutral when it
comes to women" ktererests.
Current free speech doctrine is in some ways a traditional institut-im
Its intellechnal origins trace back to the works of seventeenth-centurypoet
John Milton and nineteenth-century philosopher John Stuart Mill; its le-
gal roots are in the decisions of early-nineteenth-century jurists Olivcr
Wndell H o h e s Jr. and Louis Bralideis. Adhere~~ts to traditional institu-
tions usually do not welcome radical critique. For this reason, it is not
suryrising that mmy supporters of free speech doctrjne dismiss radical
critics as dangerous heretics or, taking a page from Emperor Jdian's
book, ignore them altogether, hoping that they will go away. Yet on a
deeper level this reaction is s u ~ r i s i qeven
, paradoxical. At least where
other institutions are concerned, Ewe speech doctrine recognizes the value
of radjcal criLique as an antidote to intellectual stdtification, keeping
good ideas from becoming stale d o p a , As Mill explained more than a
century ago, even if "~piRionbe il.1 error, it m y , and very c o r n o n l y
does, confah a portion of truth; and shce the general or prevailhg opin-
ion on any subject is rarely or never the whole truth, it is only by collision
of acfverse opinions that the remainder of the tn;lth has any chance of he-
ixlg ~ u p p l i e d ~ " ~ ~
Adherents of traditional free speech doctrine, howevcr; have iypically
reacted to attacks 01%t-he fundame~~tal precepts of the doctrhe more like
high priests defendkg religious faith than heirs of the intellectual skep-
tics who laid the foundation of the pP-inciple they so vigorously defend. Xt
it; irorliic indeed that many radicais are more athrlied than are s m of the
mast vociferaus free speech traditionalists to Mill" and Holxnes" most
iunportmt legacy to free speech doch-ine: that in t%ie world of humm af-
fairs 1111 trulh-includi~lig truth about free speech---is ~ n l provisimal.
y
Mill" point that even erroneous opinion contains ""a partion of the
tmth'hccurately describes radical cfitique of free speech docklne. As X
explain at length in this book, in asserting tlliat free speech has not on t-he
whale been an ally of the oppressed, the radicals are "in error." They are
thus unwise to caU for revision of free speech ductrine to permit govern-
ment greater latilude to suppress speech that it h d s obnoxious or even
dangerous. Experience in this cowltry and elsewhere shows that it is rad-
ical speech that government is most eager to suppress. That leftist radi-
cals writixsg in a society that has long been and conthues to he hostile to
their ideology wodd wmt to weaken the princ.iple that governmerlit may
not s q p r ( ? s "expression because of hostifity to its viewpoirit seems odd,
to say the least, The m a h thmst of radical critique is, moreoveq theortrti-
d l y shaky. As a meam of attacking claims of neulrality, they employ an
epistemology that denies all eternal werities. Yet at the same time they es-
tablish cunent noti.ons of racial and gender equality as m unyuestion-
able, translrendent truth. 'This is a deep ir.lconsistency that the radical crit-
ics do not even attempt to explain.
Despite the hyperbole and unwarrated condemnation of the core of
traditional free speech &eory, radical critique norlietbeiess serves to alert
us to thg dnlnger of u~ncriticaland mechanicd applicatim ot fme speech
doctrine. There have, in fact, been free speech decisions that discomt in-
jury to minorities. For example, two state supreme courts, supported by
academic commentary; recently invoked the First Amendment to invali-
date laws that enhance punishment for racially motivated, crimes, includ-
ing viole~litcrimes such as batkry, arson, m d murder.'-e rationale of
these cases called into question not just the federal criminal civil rights
laws that have been on the books for mofe than a century but the modem
civil rights laws, such as Title VII, as well. Fortunately, the United States
Supreme Court in I993 put a stop to this engine of dest_r~ctian.'~
A yea earlier, howwer, the Supreme Court itself sucnlmbed to the al-
lure of formalism and false sy etry In a case involving the burrliirlig of a
cross on a black family's lawn, the Court in an opinion by arch formalist
Antonin Scalia, concluded that face-to-face racial verbal assaults are no
more -alarming to the victim than are rlionracial 'Vigfnting words."'15
Accordingly, the Court concluded that although government c m forbid
the use of all '"fighting words," the First Ame~ldnnent"srretraliv prlinciple
forbids sii7gling out racist verbal assaults for prhilnition. Surely, in this
country ill this t h e , rack4 epithets, let alone burning a cross on a blaek
farnib's :lawn, are much more like@to cause &arm or start a fight thm is
callillg someolle a ""bstad," a '%on of a bitch,'\r most any other epithct
one could think of. 326s is not to say that the invalidation of the poorly
crafted law at issue in that case was wrong. What is troubling is Scalia" h-
ahility to recogrrize &at the legacy of racial terrorism in this cowltry makes
placillg a burning cross on a Hack family's lawn in the dead of night m m
harmful than other types of verbal assaults. Dues the First Amendment's
neutraliq prb~cripkreally prcvent recopition of the special harms atten-
dant to racist "'fighting words"? As we shall see, this question is mtxch
more difficult than Scalia cares to recognize.
The burden of this book is to demonstrate that the ultimate radical
endment doctrirle is rattell to its core (or that it does
not have a core) cannot be sustamed. At the same time, I show that
around the edges free speech doctrine has failed. adeguately to account
for injury suffered by wornell and mhorities.
Before one can assess the claim that traditional doctrine is biased
against women and minorities, one needs familiarity with this doctrine, X
thus devote Part I of this book to acquainthlg the reader with the basics of
h e r k m free speech h t r i n c . This p a t comprises three chapters: fn
Chapter 2 X identify the reasons free speech is valued h a democratic soci-
ety and trace lrhe hit;tory of free speech doctrine in lfie Wmited States; in
Chapter 3 1 then skekh the salient features of current doctrhe. Chapter 4
offers a discussinn of why under cument d o c t h e bate speech :Laws m d
laws prohibiting pornography demeaniq to woner1 are uncanstitu-
lional.
The second p a t of the book is a description of and respmse to the rad-
ical attack on modem free speech doctrine: In Chapter S X inwestigatc the
radical charge that modern free speech doctrine is in the service af the
rich m d powerful and selectively discrirminates against the interests of
women and minarities. I go on in fie next chapter to demnstrak that the
relationship between free speech and equality is far mare complex and
ambivalent than either the radiral critics or many liberal defenders ac-
k~owledge.
Part 3 goes beyond what the law is to what it should be- I ask if doc-
tfine hould be modified so as to pemit broad hate speech and pomogra-
phy restrictior~s.Answaing this questio~~ requires an assessment of the
costs and benefits of hate speech a d pornography regulation: In Chapkr
7 11 discuss whether b ing this speech would be an effective remedy fos
trhe various harms hate speech hand pornography arc said to cause. III the
next chapter, I assess the impact that modifyixlg dockirre to permit such
regulatjm would have on free speech in this swiety, In Chapter 9 X in-
quire Lvhether there is a principied justi.ficatim for banning hate speech
and pornography that is sufficiently narrow so as not to imperil core free
speech values. In Chaptct- 30 1offer some conclusions about the wisdom
of the various proposals to ban hate speech a d pornography in this
country.
:In the Mpendix :I discuss in detail the scientific studies of the harm
caused by por~~ography, the Atton~eyGenerat's Commissim on
Pornography" evaluation of these studies, and various criticisms af the
commission%conclusioszs,
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PART O N E
Democratic Self-Governance
The connection between free speech and kmocracy is manifest. As the
ultilnate source of political authoriq, the people must be able to talk to
one another about the performa~ceof governmental officials and the
policies these offjciizls implement. If govemmenf: could punish speech
with which it disagrees, then the public opinion that influences official
decisionmaking and uftimatey deterrnincs whether goverrtmental offi-
cial.~will stay in power cvodd reflect not tbe w i l l of fie people hut the
will of the government officials, The Supreme Court haa thus explained
that '"he First Amendment was fashioned to assure unfettered inter-
cf-tangeof ideas for the bringkg about: of political m d sociai changes de-
sired by the people."'
It is sometimes alleged that a constihztional righl to free speech inhibits
democracy to the extent that it per~xitscourts to void lacvs the people de-
sire. For instmce, Frederick Schauer argues that "falny distinct restrai.nt
on majofity power, such as a prjnciple of fmedom oi speech, is by its na-
ture anti-democratic, anti-majuritarian."" But democracy is something
mare than static majoritarianism*At mi~~irnurn, it must also include the
right of the minority to try to persuade the majority to change its mind.
Preventing a current majority from suppressing the discourse that allows
for the creation of new majorities thus promotes rather than inhibits
democracy.
Same have argued that democratic self-governance is the only value
underlying the free speech, principlee4t3ut alt-hough democracy is unde~~i-
ably a core value, it is difficult to explain the fuli exparxse of the h e
speech prhciple as it aperates in this comtry exclusively in such terms.
For i n s m e , the exp~ssionof many if not most, scientific and malhemat-
ical ideas have no direct cormection with democratic self-governance;
even more so, abstract art and symphonic music would seem to have little
connectioel with tht? speech by which we govern ourselves. Yet under
modern doctrine all these farms of expression arc. afforded rigorous pm-
tectisn against government suppres"i"n. Accordingly, ttaless the concept
of democratic self-governance is stretched beyond all recognition,? we
must look to other values as well,
Truth Discovery in the Marketplace of Ideas
First invoked by J o h Milton in, the seventeenth century, the tmth discov-
ery rationale for free speech was fully developed, in the rniddle of the
ninekmth cerlitwy by fohrli 5tual.t Mill in his influential essay On Liberty."
h the early-t-vventiethcentury, Justice Oliver Wendell Holmes kvrote that
''[t&e ultilnate good d e s i ~ dis better reached by free trade in i d e a s ' k d
"that the hest test of tmth is the power of thought to get itself accepted in
the competition of the market."? Severai decades Inter, a majority of the
Court: invoked the search for truth in excluding face-to-face insults,
defamation, and obscenity from First Amendment prokction. Such utter-
ances, the Court explained, are "no essential part of ;my exposition of
ideas" and only of ""sight" value as "'a step to trutIh."%s we shall see, the
Court would later disco~ierthat even these forlorn categories of expses-
sion codd not be neatly excised f m the body of veech that dict inwolwe
"the exposition of ideas" and search for "the tru"Ch." Still, the Court's per-
ception retains validity: Face-b-face, personal insults; lies that damge an
individual's reputation; and explicit depictions of sex intended merely to
arouse seem far afield from tru"ch seekkg in the marketplace of ideas.
To the modern ear, the concept of the search for "truth" may sound
quaint (and to the post-modem ear, perhaps wen absurd). Justice Felix
Frmkfurter recast this rationale in somewhat m m contemporary terms
when he spoke of the "progress of civilization" that occurs in the cm*-
ual process by which beliefs that "'olice held sway as official trutfi'" are
displaced by new ideas-Vut whether conceptualized as the search for
tmth or as an indispensable mechmism of cultural. progress, this ratio-
nale, urlilike the democral-ic self-govenliancejustification, "carries beyond
the pdtical r e a h f 9 o "the btrilding of the whole culture [includng] ialt of
the areas of humm learning and howledge."" Whether its dfimate goal
be truth or pmpess, the marketplace-of-ideas r a t i o d e has corlisiderable
descriptive power: It cxplairts, for instance, far m m readily than does the
self-governance rationale the broad scope of exyression protected under
modern free sgeeCh doctrine. And the Supreme Court conthues fre-
quently to invoke the metapkor.l "
Radical critics claim that free speech doctrine is ahistorieal in that it does
not account for the legacy of this country's long-starrding racist instilu-
tians, such as slavery and apartheid. There is much ta this charge, But
radical critics are also wilty of ahistoricism, for they ignore or triviabe
the fact that czlrrctnt doctrine is largely a product of the faihre of early
cases to protect agahst governmental suppression of radical ideology at
b r b u f e ~times
~ t in our nation's history.
[Wrhen men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very fomdatiuns ctf
their own conduct that the ultimate good desired is better reached by the free
trade in i d e a e t h a t the best test of truth is the power of the thought tc3 get it-
self accepted in the cornpetitic?n of the market, and that truth is the only
grsund upon which their wishes safely can be carried out. That at any rate is
the theory of our Canstitutictn. It is an experiment, a s aXX life is an experi-
ment. Every year if not every day we have to wage our salvation upon some
prophesy based upon imperfect knowledge, While "rat experiment is part of
our system 1 think that we should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe to be fraught
with death, unless they so imminently threaten immediate interference with
the lawful and pressing purposes of the law that an immediate check is re-
quired to save the country
Holmes believed that Abrams and his codefendmts kvere being made
to suffer f'mt h r what the indictment alteges but for the creed they
avow." But were not Schcrnck and Dcbs also punihed for the creed they
avowed, or was there not at least &at distinct possibility? h d wasn't it
likely that Frohwerk was pttnist-red for hs pro-German sentiments?
Although still insisting that these earlier cases had been '"rightly de-
cided,"" Holmes had evidently traveled a long distance in his thinking
&out free speech in the few short months since Schenck.
Two years earlier, inMnsscs Publislzitzg Co. ZJ. Prttteu, Learned Hmd, then
a young federal district court judge, took a different approach to defining
the limits of h e speech." hterpreting the Espionage Act in light of the
background constitutional principles of a society "dependent upon the
free expression of opinion as the ultimate source of aufiority,'" Hand held
that only speech that directly comseled or advised breakhg the law vio-
lated tlne Espionage Act. The postmaster general had declared the radical
magazine The Mlasses urnailable because it contailled cartoons a r ~ dpo-
erns critical of the draft tha.t "tended to produce a violation'' of the
Espionage Act. H m d recognized that the chalknged material, like all po-
litical agitation, might ""by the passior~sit arouses or the convictions it ell-
gmders'>timulate violation of the law. But because the material did not
directly comsel or advise law violation, it bvas not; in. his view, punish-
able.
Under Hand's "direct incitemerntf?est, the speech invoked in Schenck,
f'rc?hrdterkIDrhs, and possilnly even A brams would have been protected. But
the test was much too far ahead of its time to survive, The Court of
Appeals qujckly disappmved it, rding &at because "the nahral and rea-
sonable effectf'of the material was to "'encnumge resislance to a law'band
was ialtended "to persuade resktance," the postmaster had acted prop-
erly i17 refusing to mail the magazhe." As we s h l l sec, Hmd? approac-h
wotrld be vindicated, but not for neasly half a cenf-ury."
From the standpoint of history and experience, we can now discern
that ihe main problem with ihe Suprcme Court" slitid attempt to formu-
late free speech doctrine is that it was, as Hmd predicted, unreliable "in
practical administration" aadquately to protect unpopular opinion. '" It
did not require that: &e spcraker expressly adwocak law violation but pcl'
mitted the use of h u e a d o . In addition, the test req~~ired ad h w m d of-
ten sgeculati\le judgmexlts about whether the speech in question was
likely to cause harm and whether &is harm was irnmine~~t. As Hand oh-
served in private correspondence,
Once you admit that the matter is one of degree,. . . yc3u give to
Tc?mdickandharryDJ. [district judge] so much latitude that the jig i s at once
up.[Even] the Nine Elder Statesmen have not shown themselves whofly im-
mune Prom the "herd instinct" and what seems ""mediate and direct" to-
day may seem very remote next year even though the circumstances sur-
rounding the utterance be unchanged. 1 ctwn T shauld prefer a qualitative
formula, hard, conventional, difficult ta evade.2i
Under the "clear and present danger" test as it was applied in the
Espimage Act cases, it is Ilikely that speakers were imprisoned not for ac-
tually causk~gimmhent harm to some vital goven~mentdinterest, such
as procurement of men m d mt~nifi~ns to support a war effort but for ex-
pressing unpopular ideas, such as the condemnation of capitalism or sup-
port for the Bolshevik revolution. Mehough it may fairly he doubted that
the speakers caused imminent danger in these cases, there can be no
doubt that their radical ideas, often expressed in a rude and caustic mian-
ner, both higbte21t.d and infuriated those who were to judge &m. By the
time the Espionage Act prosecutions ran their course, mare than 2,000
people would be convicted." km the standpoint of adequate constitu-
tional pmkction for opinio21 that chdez~gedthe status quo, the sihnation
was to get even worse.
Long and paislful was the path from Schetzch- to Brarzde~zbur~q. h retro-
spect, there is comensus that the "clear and p ~ s e n danger"
t test as ap-
plied in t-he Espionage Act cases wits sorely inadequak t~ pmtect speech
in a society in wt-rich the people hold the dtiznate responsibil,ity for deter-
mining social policy There is morc? debate about whether the suypression
of c o m u n i s t speech was aiso inconsistent with our ideals of a liberal
democracy. But the weight of kstory seems to be wiffi Justice Wi1liam
Douglas" cconcZusion that the communist threat, too, though "often
loud," was "purTy"" and made serious o ~ ~by l y"judges so wedded to the
statzns quo that critical malysis made them nervous.""" There is ~ S con- Q
sensus that under the Kranla'enbzarg test dissident speech was much better
protected i17 t-he turbule~~t years of the civil rights a r ~ danti-Vietnam kVar
movements.
What d o c t k a l lessons, then, can be learned horn this history? We have
already discussed the prohem of speculation and ad hoc predictio~~s
about harm and its imminency required under the ""clear and present
danger" test. h o t h e r important lesson is the danger of abskactions. Like
the people 0x1 the Lord High Executioner's little list, there i\ppear to he
certain types of speech that never would be missed. As a matter of ab-
s & x t theory one could make a strong argument that excising from public
discourse speech acivocating criminal actkity as a means of destroying
democratic institutions is not only consistent with but positively pro-
motes the cornznihnent to democratic self-governance underlying free
speech. Fifty years of experience with fhe "clear and present &germ test,
however, ~ v e a l e dthat banishing even a narrow class Of seemingly
worthless and pa&licularly dmgerous speech from the body of political
discourse is difficult to do without jeopardizing other speech as well.
Stpict Scv~tiny. If, however, the Court were to subject a general hate
speech ban to strict scruti~~y rather than declare it pm se invalid, the result
would be the same- Under the strict scrutiny test, the government must
show that the law is "necessary to serve a compelling state interest, and
that it is narrowly drawn to achieve that end.'"":"Alt%totrghsome of the
justifications that would likely be proffered in support c,f such a h w
might well pass the "compelling interest" ~seyuirement,the law would
founder on the reyuimmenl: that the restriction be "'necessary" to accom-
plishing the goal and that it be "'narrawly drawn."
As we have seen, the most powerful justification for a general ban on
hate speech is that racist expression causes racial discrimhatiox~,incrlud-
in&l4olence- The Court: would surely agree that the government has a
compelling interest in preventing acts of racial discrimination and vjo-
1e11ce.I~But it might well find that a generill. hate speech ordinmce was
not "/necessil~y" to prevent racial discshi.nation and violence- The Court
might question whether the public expression of racist ideas significant@
co~~trihutes to discrimhatory acts and whether hate speech hws woutd
effectively remedy this evil.'%
But it is the narmw-tailok~grequirement that would p ~ s ethe ~ ~great-
t
est obstacle to a far-reaching hate speech b a ~Under. this requirement, a
speech restriction is mconstitzrtionall ""i less restrictive alternatives would
be at least as effective in achieving the legitimate pufpose that the statute
was ellacted to serve.f"'",And as the Court recently stated in applyi.171: strict
scruthy to strike down a restriction on hdecent speech on the hternet, the
bmader the content-based restriction/ the heavier is the buden on the gov-
ent "to exglain why a less restrictive provisio~~ woutd not be as effec-
tive," The state kvoulld thus have "an e~eciallyheavy burden" to demon-
strate that non-speech-repressive =medies such as increasing the scope
ar~drigor of civil rights laws, not to mmfion the classic free speech solution
of "'counterspeech," hirrcdhg massive g o k ~ r ~ ~ m pxopagmda
mt denomc-
ing racism, would not be as effect-jve as a g m m l hate syeech ban."
There is, however, another justification for banning racist speech aside
from the alleged power of this speech to cause others to engage in dis-
criminatory acts. Proponents of broad hate speech :legislation also point to
trhe emotional pain that hate propagmda cauws: "To be hakd, despised,
and alone is the ultimate fear of all httrman beings. However isratimal
racist speech may be, it hits right at the emotional place where we feel the
most p"i"."$# Rut the Court would most likely hold that p ~ v e n t i o nof
psychic kjury does not qualify as a compellbg state hterest. h HasdErvr
Magazine ?I. Fnlwell," a jury found that the Revesend ferry Fahel.1 suffered
extreme emotional distress as a resuit of a parody of a Campari advertise-
ment stating that Falwell" ''first time" was with his mother in an out-
house. In unanimously nullifying this award as contrary to the First
Amendment, Lhe Court r e i e r ~ dto '"he longsta~tdingrefusal to allow
damage"^ be warded because the speech in question may have an ad-
verse emotional impact on the audience-" h holdbg that public figures
cannot recover for infliction of emotional distress caused by media publi-
catio~tfurtless they c m meet the New Vork Times malice strandard), the
Court once ilf~aicl recognized that allowing governlnent the power to filter
emotionalfy traumatic speech from public discourse would unduly
i n t e r f e ~with the "'rohust political debate encouraged by the First
Amendment.'f
Fjnally, some have argued that a ban m such speech would not be sub-
ject to strict scn;ltiny because, like "figltting words" a d obsce~~iq, racist
speech is categorically outside the protection of the First Amendment.
Several mcent Supreme Court opinims show that such is not the case. In
r d h g that a state may not preserve the flag as a symbol of mtionai unity
by prohibiting its desecration as a form of political protest, the Court
pointed out that "[tfhe First Amendment does not guarantee that other
co~~cepts virl-ually sacred to our Nation as a r/vh&-such as the principle
that discrimhation on the basis of race is odious m d destructive-will go
unquestioned in the marketplace of i d e a s . " 2 t T ~more ~ n tellillg is the
Court's decisiolt in the cross-lbuntirtg case R.A.V. v, City of St. Patil.21
Althougf7 deeply di:vid.ed about the reasm for the statute" invalidity the
Court was unanimous that the proscription of racist fighting words at is-
sue in that case vioiated the First Amendment. Such a resuit is impossible
to square with any categorical exclusion of hate speech from the First
.Amendment. More generally, R.A. K provides proof that a broad prohibi-
tion of hate speech would be uncronstibtionai. Frlr if fhe state is not con-
stitut.ionally permitted to regulate z.tnprotectrd speech because of its racist
content, it follows that the state may not prohibit protected speech be-
cause of its racist ideology.'"
The city justified the ordinance on the ground that ""pornography af-
fects thoughts"' and "[rnlcn who see women as depicted as subordinate
are more likely to treat them so." Eastel-braok agreed that "[pleopfe ofien
act in accordance with the images ancf patten~sthey find arowd &em'"
and that therefore ""[d]epicli,onsof subordination tend to perpetuate sub-
ordination [of women, includhgj lower pay at work, insdt and illjury at
home [and] batteq and rage on the streets." Nox~etbetess,he betd that
under current First Amendment doctrine the ordinance was unconstitu-
tional:
All of these unhappy effects depend on mental intermediation. Pornography
affects how people see the world, their fellows, and social relations. . . . The
Alien and Sedition Acts . . . rested on a sincerely held belief that disrespect
for the government leads to social collapse and revolution-a belief with
support in the history of many nations. Most governments of the world act
on this empirical regularity, suppressing critical speech. in the United States,
however, the strength of the support fcjr this belief is irrelevant. Seditious Ii-
bet is protected speech unless the danger is not only grave but also immi-
nent. fSimilarly], [rfacial bigotry, anti-semitism, violence on television, re-
porters' biases-these and many more influence- the culture and shape our
socializatictn, . . . Yet all is prukcted as speech, however insidious. Any ctther
answer leaves the government in control of all of the institutions of culture,
the great censor and director of wl~ichtl-roughts are good for us,
The court did not subject the ordir~anceto strict scruthy or any other
test hut rather found this viewpoint-cliscrkinatory rtrsh.iction per se WI-
constitutional. T%e city then appealed to the 21.5. Supreme Court, which
summarily affirmed the Court of &peals decision without hearing oral
argurne~~t or issuing XI opinion.u'
Because the court found the primary fault with the Indimapolis ordi-
nance to he its viewpoint oricmtation, it could be argued that some other
approa" to pomograghy ~ g u l a t i o leyuatly
~, broilcl based but viewpoir~t
neutral, might pass constitutional muster," The prOblen with t h i s argu-
ment is that it runs headlong into the Court" oobscerliy jurisprudence. As
discrussed in Chapter 2, ihe point of ihc Supreme Court" oohscenity deci-
sions has been to draw a line between expression whose sale purpose and
function is sexual arousd (i.e., obscenity) and sexudly explicit matct-ial
trhalhas some redeemhg literary artistic, political, or scimtific value. The
Court has st-ruggled over the years as to where precisely to draw this line,
but there has never been m y doubt that what the Court had in mind was
"'bard-core" pornogr"pt7y- Thus at a mhintum, to be constitutionally pro-
scribable, erotic material must be extremely graphic, such as films of: peo-
ple engaging in sexud intercourse that show actual penetration. Any at-
tempt to prohibit "soit-core" pornography, such as photograghs of naked
men or women in erotic poses, or even "medim-core" fare, such as films
ol people engagil-tg in sexual intersotrtse that show neither erect penises
nor actllal penetration, is doomed to failure.'?
Any lingering doubt that government might constitutionally enact
s m e far-=aching ban of pornographic materid that does not me& the
Supreme Court" definition of obscenity was dispelled, by Reno v. ACLU.
Concerned Chat the vast amount. oS sexually explicit materid on
the Internet was readily available to children, Congress passed the
Commnications Decency Act of 1996.The law prohjbited T o n e from
k~owinglytransrniCting by a klocomunicatiom device ohscene or '"-
decent" materid to persons ttnder eighteen years of age or h m using an
"in teractive computer" b o w h g l y to send or display any "pakntly offen-
sive'" ntataial dealing with "'sexual or excretory activities or organs.'"n
analyzhg the law, the Court emphasized that ""sexual expression which is
indecent but not obscene is prokcted by the First Amendment." Because
trhe act regulated not just obscene ntakrial but other sexualty explicit ma-
terial. as well m d did so on the basis of its content, the Court subjected the
law to "the mast stringent" ~ r u t i n yThe . ~ Court agreed that there is a
compelling i n t e ~ sin
t protecting minors from exposure to "hdecexrt"' and
"'patmtly ofknsive" speech Nevertheless, the Cowt found that the gov-
ernment faikd, to c a T its burclen of dernansh.ating why several possibly
"less restrictivef"alternative means for keeping this material from chil-
dren, such as r e q ~ ~ i r h
indecent
g material. to be ""tagged" so parents could
filter it, would not be as effective as the act, The Caurt thus concluded
that ihe hVh" tmco~~stjtutio~~ally "suppres~esa large antaunt of speech that
adults have a constitutional right to receive.rr?'
:It has hem suggested that Justice Sca1ia wrote the R.A.L! opinion as a
slap at &c campus hate speech codes that: many universities were pro-
mulgathg at the time- If so, it is ironic that in protecting Title Vlf, Scalia
drew a road map for draftjng constitutional campus hate speech regula-
tions. Campus codes, it is true, have not fared very well either in the
courts or with public opinion."" Marry were badly drilfted, focuskg on the
content of the speech in precisely the way R.A,K condemns rather than
pr&ihiting discrimination, whetl-ter accomplished through exprwsion or
conduct. In addition, neither the drafters of these codes nor, for that mat-
ter, the courb reviewhg them disthguihed among the various pbces orz
campu"o which these codes applied. It rnakcs a kuge differe~~tre whetkr
the university seeks to regulate speech in a carnpus free speech asr?a, the
classroom, or the dormitory. Precisely because these codes did not engage
in such "fomm anaiysis" md, more gemrally, did m t attempt to distin-
guish betkveen legitimate rtrgufatory goals, sucrh as preventing acts of dis-
crimination that materially interfere with stuQents3bility to obtain an
education, from illegitimate ones, such as preventi~~g the expression of
hakful ideas, the codes were doomed to failure.
Far miversities that want to impose restrictions on racist speech, R.A. V.
suggests a way to do so constitutionally. Instead of aiming at racist
speech, draft;ers shou[d track Xtle VIYs prohihitiox~against discrimina-
tion on the basis of race, sex, or other categories. They then should draft
guidelines modeled after the EquaZ Employment Opportunity
Commission (EEOC:) guidelines e>cplai~~ing what conduct, "verbal or
physical," mnstitutes prohibited discrimination. This approach, of
course, would nut allow the university to apply the code to all speech it
may want to prohibit. Even under this approach, it could not prohibit t-he
exp~ssionof oMensive ideas in the clilssroom so long as they cvere ger-
mane to the discussion. For instance, it could still not punish a student far
expressil7g the view in a psychology class that homosexuality is a disease
that should be medicauy treated." No matter how carefully the xgulatim
is drafted, the First Amendment does not albw such viewpoint discrimi-
natiax~in this setthg,.Vctt such a Title VII-based approach might allow for
exmple, thc prohibition of thc use of racial, epithets in the classroom or
threats against gays in living areas. R,A, V., then, leaves room for narrowly
crafted pm"hibifions oi hate speech in certain settings, such as the work-
place m d the dassroom, even if they are in effect content-based rtrgula-
tions of expression.&
Nor does First Amendment doctrine impose my substantial obstacle to
hate crime legislation-kws that enhnnce thc penalty frnr bias-motivated
crimes. Many states have recently passed such laws. A Wisconsin law, for
instance, increases the penalty for committing certain crimes, such as bat-
tery, murdes, and arson, if t-he defendmt "'intenlionalty selects the person
against whom the crirn . . . is committed . . . because of the race, religion,
color, disability, sexual orientation, mtionai origin or ancestry of that per-
son." In Inisconsirz v. Midchell, the United States rebuffed a First
Amendment challenge to the Wisconsin hate? crime law brought- by a
black man who received a r ~e~.rhancedsentaxe for committing racially
motivated battery agailnst a white yauthe4'Writing far a trnanimaus
Courl, Chief Justice Rehnquist relied. heavily on the basic spczech-conduct
dichotomy w~dergirdingfree speech docbfne. He noted that the law pull-
ishes only conduct and that the battery committed by the defendant
codd not "by any stretch of the imagination [be considered] expressbe
co~~duct protected hy the First hndment.'"WRc.hquist summarily &S-
posed of the claim that the statute nonethekss violated the First
Amcndment because it punished "abstract belief." He found that the
state's interest in redressing special harms reasonabty thought to be
caused by hate crimes, suCh as Lheir tende~~cy to pmvoke retaliatio~~,
in-
flict emotional harm, and catrse commtrnity unrest, "'provides an ade-
quate explanatim for its penalty-enhancement provision over and above
mere disali;reeme~~t with offertders%betiefs or biases.'"
In summary; there are two importmt points to be made with respect to
the constitutionality of hate speech and pornography regulations. First,
there is no doubt that under current doctrir~eany broad ban on hate
speech ar pornography kvould be held unconstitutional*Just as certainly,
however, there remains room for narrowly circumscribed rcgdation of
hate speech and pomograph~;particularly to supplement regulations of
conduct and applicable in settbngs not dedicated to public discourse.
This page intentionally left blank
The Radica
HATESPEECH:
1s T H E R E
A DEVIL
I N T H E EXCEPTIONS?
According to Richard Dclgado and David. Yun, an examination of "the
cument ladsciiiye of First Amendment doct*er' reveals that the comts
~ s exception^' to the free speech princrigle,
have "carved out" d o z e ~ of
each of which res;ponds to "'some interest of a powerful group." "But when
it is suggested that there should be exceptions to protect minorities from
the ill effects of hate speech, doctrine is suddenly seen as '% seamtess
web" permitting no exceptioln~.~ To assess the clairn that h e speech doc-
trine systemicany discriminates against milzorities by denying them ex-
emptio~~s aiiclrded other, more powctrful i r ~ t e ~ s twe
s , must first closdy
examine these exceptions.
Dclgado and Yun point to exceptions for "words of fireal," conspiracy
or tibel, official secrets, plagiarim, copyrighted and trademarked mater-
ial, as well as ""disrespectful kvords trttered to a judge, teacher or other au-
thority figure,'Wari Matsuda adds exceptions for "fake statements about
products, suggestions;that prices be fixed, [andopinior~sabout the value
of stock"; Matsuda charge"fhat the desire h r '"smooth operatiox~of the
eMiiim of commerce" imd for ""astable setting for the growth of capital"'
have in these instances '"overcome the commitment to civil liberties,"2
326s mderstmding is premised an a pmfound but widely shared mis-
conception. h this mistaken view, the First Amendment generally confers
strong protection to all h u m utterawes subject to various exceptions.
But an arcuate s~~apshot of First Amertdrrrent doctrine shows a quite di.f-
ferent picture, indeed one that is nearly the photographic negative of. the
one described by Delgado, Yun, and Matsuda*As discussed iisr detail in
Chapter 4, o d y a relatively narrow swath of expression it;afforded strong
First h e n d m e n t protection. "fhis nearly absolute immtxnity from content
regulation is primarily limited to speech that qualifies as "public dis-
coursef"speech on matters of pu$Iic concern occurrint; h settings dedi-
cated to democratic selif..gavernanceor truth discovery in the marketplace
of ideas. Tn contrast, most other types of speech are subject to regulation if
ent can point to some legitimate interest that the regulation
is reasonably calculated to serve. Thus what the radicals (and others) call
"exceptions" are in fact the nom---expression routinely regulated inci-
dentill to a larger rewlatory s c h m e such as the control of commerce or
ordinary crimhal activity.
Even a casual glance at the list of so-calfed exceptions compiled by
Delgado, k n , and :Matsuda reveals that most of these items are by no
stretch of Ih9 imagjnation speech that critiques societ_t;advocates chmges
in political institutions, or contributes to the marketplace of ideas. This is
most clearly the case with rwpect to t-he regulation of industrial a ~ com- d
mercial speech Matsuda notes..Agreements to fix prices or statements cal-
culated to manipulate th. stock market are obviously quite distjnct from
trhe exp~ssionthrough which public opimion is h a d or by which we
discover truth. "fhe s m e is true, for the m s t part; ol comrnerciai adver-
tising in general and the false or misleading statements about commercial
products in particular. In additim, these are not tfie type of mwlations
that raise suspicion that government is restricting speech for some imper-
missihle purpose, Thus we do not suspect that in forbidding price-fixing
or securities fraud that gover~~ment is attempting to manipulate puhtic
opinion. hther, as Matsuda correctly sur~xises,the impetus for such reg-
ulatjon is the "smooth operation" of free aterprise and capitalism, not to
mentior.2 col3cc.m for individuals and small businesses who might be un-
fairly victimized by these practices..
Modern doctfine's response to the regulation of commercial adverljs-
ing mderacores the i m p r t m c e of the cfistinction between puhlic dis-
cozlrse m d other typem"fxpres"i"n. So long as the rc.gdat.ion of c m -
mercial speech is limited, to the prevention of false or misleading
advel.tising, the First e ~ ~ d m cimpawdittle
nt constraint. But as the rcg-
ulated speech in question moves closer to the realm of public discourse,
First Amendment protection increases, For example, advertising by
lawyers "seeking to further political or ideological goals" through puhlic
interest lititi;ation is highly pr~tectedspeech.'
Much of Delgado and Vun's list is also far afield from the realrn of pub-
lic: diticourse. The statements at issue in the routine libel suit clre typicaflqi
scunilous accusations made in the heat of some private dispute and are
of no interesl to myone but the combatants. But when the altegedly li-
belous speech is about a matter of public concern, particulal-ly when it is
about the o f f i c s conduct ot: a public official, considerable First
Amendmnt protection arises.*Similhlrly, the lypical threat, rcvelalion of a
state secret, or conspiracy to commit a crime has nothillg to do with the
formation of pu:$lic opinior.7 or competition in t-he markeplace of ideas.
But irt, rare cases in which such speech does have some com~ectianwith
public discourse, the First Amendment comes into play. For exantple, as
discussed in Chapkr 2, the Supreme Court rufcd that a federal prohibi-
tion on making threl?ls against thc president did not extend to an antiwar
protestor" declaration that if he were drafted m d given a g m "the first
man I want to get in my sightsf"w u l d be the president of the United
States.' Similarly, in the lmdmark Pcntagotz Payers case the Court found
unconstitutional attempts to reshain newspapers from publishing a pur-
loined top secret study of the history of the Vieham ~ol7llict.~ And the
First h e n d r n m t presents considerable barriers to the use of conspiracy
laws clgainst political orgmizatio~zs,~
The regulation of trademarks will almost never involve public dis-
course, let alone ixlhibit it. In contrast, much copyrighted material is part
of public discourse. Copyright lawf however, does not prcvenl. the dis-
semination of ideas contained in a copyrighted work hut only the duplica-
tion of thefonn of: the expressim. h d in a rare case in which copyright
protection threatens to impedic? public discourtie, courts have interpreted
trhe law's fair use provision as d o w i n g puhlicatio~~ w i h u t liabifity,"
Thus, far from discouraging public discourse, the ability of authors to
claim a property right in the f o m of their expression fostas the exchange
of ideas.
In kvoking "'disrespectful kvords trttered to a judge, teacher or other
authority figux" as m example of an "exception'9ormulated to protect
trhe interests of tbe pwerful, Delgado and Vun again miss the crucial dis-
tinction between public discourse and other expression. Although both
the courtroom and the classroom are hstrumenM to the democratic char-
acter of our sociefry, neither is a forum dedicated to robust, u n ~ i b i t e d
public discourse. Rather, bath places involve highly structured discourse
in service of particular ends (justice and learning) that would be under-
mhed by unconstrained debate or use of vulgar epit-bets. True, the civil-
ity rules tbat operate in these s e t t h g m a y w l l undUIy emphasize re-
spect for the authority f i g r r ~ isn cbarge as oppo="do other participants.
Still, the rules requiring that judges and teachers he addressed with re-
spect is not a special rule for judges and teachers hut part of the civility
norms that free speech doctrine allows to be imposed incontexts not ded-
icated to public discourse."
Proof that these civility norms are specific to place rather thm office is
that outside the courtroom and classroom the First Amendment generally
=quires that judges m d teachers be suhject to the same vituperative ex-
changes as myone else. For i n s t w e , -although the First h e r t d m e n t
would permit Chief Justice Rehquist summarily to hold in contempt a
lawyer who referred to him as a "horse's ass" during oral q u m e n t in the
Supreme Court, a citizen who delivered the s a m message by holding up
a sign in the p~rb3-ic street in front of a p21blic auditorium \Nhere Rehnq~rist
was about to deliver a lecture codd not constitutionally be punished for
this statement. Indeed, there is some suggestion in the case hvhJ that at
least one type of "authority figure"-the police officer-is rcquired by the
First Axnendment to endur@a greater degree of disrespectful language
than the average citizen sta~~ding in a public
In summary, all the "exceptions" that Delgado, Vun, and Matsuda list
arr; ei.ther (l)not a regulation of public discourse (for instance, the prohi-
bition of speech t-hat f i e s prices, manj.pulates the stock market, or de-
h e s a private individual on a matter of purely privale concern) or ( 2 ) a
regulation of a brmd class of speech that includes public discourse but. is
neither intrrnded to ilnhihit nor has the effect of hhibiting robust public
discourse (for example, copyright ER cmtras6 although it would
cover speech that is not public discourse @orinstance, use of racial epi-
thets in the classrr.,om), a ge~~erai ban on hate speech Iike the one Matsuda
proposes is aimed at regulating public discourse (for example, the expres-
sion of racist ideas in books, films, or speeches on the street corner).
Indeed, the very purpow oafsuch laws is to cleanse pubiic discourse of vi-
cious racist propaganda. h addition, hate speech laws are a classic exam-
ple of viewpoint discrimination-prohibition of speech because the gov-
ernment finds its message abhorrent or dangerous. Altl-tough a few of the
~gulationscited by Delgado, Ym, iznd Matsucta are content oriet7t.r.d (for
example, prohibitions agajrzst uncivil speech in classroom and court-
moms), none is cornparable to the s u p p ~ s s i o nof a pmtkutar potitical
viewyoint such as would be accomflished by a hate speech ban. Th~xsin
every essential way the ""c.xceptionsHthese critics point to are udike a
g"11"ral hate speech ban.
The exception to First Amendment protection that comes closest to a
viewpoint-discriminatory ban on public discourse is the ctbsceality excep-
tion. Like the pmposed ban on hate speech, it applies to media esseneal
tru puhlic discowse, such as print and fihn. Zn addition, obsce~lityis de-
fined in terms of "'offensewto "'conteqorary comnnttnity standatds."
.According@ it has been argucd that the obscealiw exception reflects soci-
ety's an.tipathy toward the Dio~lysiilnworldview &picked in most hard-
core pornography. Llnkrcutting this ilrgumertt is that the obscenity ex-
ception does not restrict people's ability to criticize our current sexual
mows or to advocate their replacement witb licentious lifestyfes. The oh-
scenity stmdard" emphasis on offense to the commtxnity is thus perhaps
best understood not as an attempt to suppress a particular viewpoil~tbut
to forbid a particularly offensiveform of expression. Furthermarc, ohsce21-
ity doctrhe's long-standkg emphasis on the sexually arousing quality of
the material suggests that the state's interest in rczgulating hard-care
pornography may be more akin to lrhe regulation of sex than ideas." In
any event, although the obscenity except-i;onmay have an odor of view-
point discrimination, it is not fairly comparable to the explicit and far-
reaching viewpoint discrimhation worked by a ge~leralban on racist ex-
pression.
Contrary to Delgado and Yun, then, the "seamless wcb" of near ah-
solute protectio~~ of speech is not ssme sanclrimonious story told when the
less powerful in a society wnnt to regulate speech that kanns their intcr-
ests. Such a "seamless web" does exist, but it covers o d y the domain of
puhlic discourse. Here it does in fact p r ~ v i d eexceedingly strong protec-
tion agaixlst content discrimhation and near absolute protection agairrst
viewpoint discrimination.
Before leavjng the topic of allegedly discriminatory "'exceptions,"" 1
want to address a particz~larliyerroneous argtrment made by Charles
Lawrence, "[M]uch of the argument for protecti,ng racist speech,"
Lawre~~ce claims, "is based on Lhe distinctior.2that milny civil libertarians
draw between direct, kce-to-face mcial insults, which they think deserve
first amendment protection, and all other fighting words, which they find
unprotected by the first amendmer~t.'"":"~acvrence does not give any refer-
ences supporting this remarkable charge against "'civil liibertariansef'
What many civil libertarians do maintain, and with justification, is that
trhe "fighting woTqJsf'doctrhe can be a dangerous tool in the hands of law
enforcement officials. Conset;luently, some argue that Chnpli~zsb,the 3.942
case that held that fighting words are not protected by the First
Amenhent, shodd be e x p ~ s s l yoverruied arid ehat fa=-to-face insults
ol all types (including racial ones) should be affoded First Amendment
protectim.'"ut I b o w of no call for special, protection of racial fightixsg
words.
Lawrence, in fact, has got things exactly backward. The only arguments
for special treatment of racist fighting words have been made by those
who (like Lawrence) support '"campus codes" - ad other restrictions on
hate speech that single out: racist face-to-face insults for prohitnition. In
R.A.K U. City ctJSf. Ifizzri, a bare majority of the Supscrrne Court held that a
law that singled out racial fighting words for special prohibition was un-
cmstitutional." The opinion makes clear, however, that to the extent the
"'fighthg worcds" doctrim survives, government can out.law face-to-face
racial epithets as part of a larger prohibition of fighthg words. Indeed,
any atkmpt tru exclude racial figbtirlg wards from a galera1 regulation of
hate speech kvould run afoul of R.A. K's hholdirrg that regulation of fight;
ing words must generally be "aal.lor nothing." But for completely different
reasons, R.A.V. may provid" at least one exmple supporting the radical
&age Chat modem doctrine di.scrimi,nnks against the interests of mimo-
rities.
Justice Holmes once observed that "'hard cases make bad lawe"'Terhaps
he should have included bizarre cases in his admanition. R.A.V ixlvolkred
the prosecution of a white juvenik under a bate speech ordinance for
placing a burning cross on a black family" law11 in the middle of the
night." R e ordinance made it a misdemeanor to place on pubic or pri-
vate pmperv m~ "symb& object, appellalion, characterization or graf-
fiti, inciuding, but not limited to, a burning crass or Nazi swastika, which
. . . arouses anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender." Although the statute makes no reference to
"fighting words," "the Mhr~esotaSupreme Court, recognizing that as
written the sweep of the ordinance made it patently unconstitutional,
construed the ordinance as reachi~sgonly unprotected fighting words,
Thus as the case came to the U.S. Suprexne Court the queaion was
whethtlr government could single out for special prohbition fighting
words wi.t.h a racial content,
Despite the reconstnxctive surgery, tltc Comt unanimously found the
ordinance to be mconstitutional. Four justices held that the Mimesota
Supreme Court had not sufficiently narrowed the statute and thus still
bmned protected speech. A majority of the Court, however, found that
the ordinance suffered fmm a deeper flaw. In an opinion by Justice Scalia,
the Court found that because the ordinance applies only to fighting
words that insuit or prwoke violence ""on the basis of race, color, creed,
religion or gender," it discriminated on the basis of the content of the
speech (beymd the content discrimination inherent in casting fighting
words beyond the pale of First Amellbent protection).
The Court explahed that even though certain categories of speech,
such as fightjng wads, were often ~ f e r r e dto as unprotected speech, this
characterizatioll was not '"iterally true.""Ratkr, the label "u~lprotected
speech'bears only that "these areas of speech can, consistexntly with the
t , ~gttlatedbecause of ttleir ~trnsfitutitr~aEIy
First h e r l d x n e ~ ~be ~mscrihbk
canfend (obscenit~defamation, etc.)-not that they are categories of
speech entirely invisible to the Constitution, so that they may he made the
vehicles for content discrimination unrelated to their distinctively pro-
scribable content. " ""Thus,'"lustice Scalia continued, "the government
may prox"'ibe 1i:bel; but it may 110t make the further col~tentdiscrimina-
tion of proscribing on@ lihel criLical of the govemntenl.." The Court held
that as a general matkr such further content discrimination is subject to
"'strict scmti17yf"i.e., will be upheld o~llyif it is necessary to accomplish-
ixlg a compellhg state hterest).
:If Justice Scalia had stopped here and simply announced a r d e that
even when regu:iating unprotected speech govemme~~t cannot entjrage in
hrther content discrimination, his opinion would not be susceptible to
the c h q e of discrimination against minorit). interests. W l l aware, how-
ever, that s u b j e c t a every cmtmt-discriminatory regulation of urlpro-
tected speech to strict scrutiny would m d d y interfere with legitimate
r e g u l a t q objectives, Scalia cxated a num:ber of exceptions to this newly
minted rule. One exeption is where "the basis for the contellt discrimina-
tion consists entirely 05' the very reason the entire class of speech at issue
is pmscribable." ""Such a reason," Scalia reasoned, ""having been ad-
judged neutral enough to supgoft exclusion of the e~nf;irc class of speech
from First .Amendment protection, is also neutral enough to form the ba-
sis of a distinctJon within the class." As an illustration, Scalia bypothe-
sized an ohxenity rewlation that p h i b i t e d only material most paten*
oKensive in its prurience. He also noted that there is no constitutional
problem with the federal. law that crimhalized only those threats of vio-
lence that are directed again& the president, ""since the reasox- wfny
threats of violence are outside the First Amendment (protectkg ixldividu-
als from the fear of violence, from the disruption that fear engenders, and
f m lrhe possibiti.ty that the t%lreatenedviolence will occur) have special
force when applied to the person of the President."
This exception (as well as the others Scalia created) is yerkctly sensi-
ble.lVut t-he following question immediately arises: V\ihy are not racial
fighting worcls and other forms of bigoted epithets worse than gardcn-
variety fighting words for "the very reason the entire class of speech at is-
sue is proscribnble'"? As noted in Clzuptin~ky~ ihe case that placed fig:hting
words outside the protection of the First Amendment, the harm caused
by fighting words is twofold: Their "very utterance Micts injury" and
they "tex-rd to incite an i ediate b~acrhof the peace."iW~asuredby ei-
ther criterion, use of racial. fighting words kvould seem to be worse than
other types of abuske epithets.
:If in the heat of a-rargumenl: a colteagut. called me a ""sox-r of a bitchf"or
an "as&&" or some sirnitar abusive epithet, I wodd be upset, but with
an apology cordial relations could be restored. But if the same colleague
had called me a ""dirty kike," the injury would be much more severe and
any hopes of restoring good collegial relations unlikely. I think that most
peaple, especially those who are members of groups that have historically
been victims of such abuse, would fee1 the same way about the use of
racial or eebr-ricepithets. E'urthemore, out on the street or in a bar or on
the playgromd such epithets are particularly likely to provoke violence.
An additional reason that racial fighting words arc arguably worse
than ordinary personal insults is that they often p ~ t i l k eof the harmful
characteristics of another class of unprotected speech-threats of via..
lence. A s Justice Robert Jackson eloquentty explained: "These terse epi-
thets come down to our generalion weighted with hatreds arcumulated
through centuries of bloodshed. . . . T'heir historical associations with vio-
lence are well understood, both by those who hurl and those who are
struck by these mi~sifes;.'"~"'This is part-icularly true of the fighting worcts
at issue in R.A.\/I: A burning cross placed in front of an African
.American%hhouse in the dead of 1.light has long been used by the Ku Klux
Klan as a theat of violence.
Justice Byron White, in. a concurring opinion joined by Justices Harry
Blackmuaz, John Paul Stevens, and Sandra Day O'Conxror, was quick to
point out that the mitjority"s exception allowir-rgregu:iatiox-rwhen the basis
for the distinction is "'the very =ason the entire class of speech . . . is pro-
scribabl.c'kould seem to encompass racial fighti~~g words. "A prohibi-
tion m fightiflg words,'WWhite cxplah-red, "is a ba-r or7 a class of speech
that conveys m overridi-ng message of personal ir-rjuryand irnrrrkent vio-
lence, . . . a message that is at its ugliest when dimted against 9oup"hat
have long been the taqets of discrimination." Justice Scalia feebly re-
sponded to this point by arguing that ""S. Paul has not singled out an es-
pecially offensive mode of expression-it has not, for example, selected
for prohibitioox-r oniy those fighting w r d s &at communicate ideas in a
threatening (as opposed to a merely obnoxious) manner." Perhaps to
Jusljce Scalia racial epithets are not "especially offensive" as compared to
other ~ p e w " f e r s o a liilsltlts, but fiU those who have been the victims of
such epithets (and worse), personally directed racial irrsults are not only
more injurious and more likely to cause a breach of the peace but also
more ""threatening(as opposed to . . . merely obno~ious).~"
I am not arguing here that the result in R.A.K is wrong or even that the
m;ijority was incorrect to hold that the First Amendment prohibits gov-
ernment from singling out racial fighting words for prohibitiox~. Mthough
racial epithets are a particularly injurious and inflammatory species of
fighting words, their power to injure is intimately connected with the
racist message they convey. As the Minwsota Supreme Court empha-
sized, the mssage c m e y e d by the bunling cross was ""bsed on winxle~lt
notions of racial supremacy" Thus tmlike the typical case in which gov-
ernment identifies a subset of proscrihable speech as particuiiarb egre-
gious for the very reasor.1 the larger category is proscribable (e.g., ex-
t ~ m e l ypmrienl obscenity), singling out mcist fighting words for special
prohibition raises the possibiliv that the motivating force behind the reg-
ulation is mtipathy toward a certain viewpoint.
Mbhe&hera special ban on racial fighti,ng words slnodd be consdered m
unconstitutional attempt to suppress racist ideas or rather a respontje to a
particularly harmful type of fighting words shoutd cJepend on the need
for such a narrow regulation as compared to a morc3 general pr~f?ibiticm
of fighting words. Because the ordinance involved in R.A..K was not
drilfted as a selective regdation of fighti~lgwords but was judicialfy
transmogrified into such a regulation, there bvas na legislative history ex-
plainiq why a broader prohibition of fighthg words would not have
suff'iced. And the City of St. P a d did not help its cause when it asserted in
its brief that a general lighti,zsg worcls law wodd not meet its needs be-
cause only a specific prohibition of racial fightiplg words would commu-
nicate to the mh~oritythat "group hatl-ed'" is '"not condoned by the m;ljor-
ity-" me Caurt might have been wiser, however, to have waited tmtil it
had bcfore it an actual legislative effort to selectively proscribe racist
fighting words before deciding such a difficdt q u e s t i o ~ ~ . ~ ~
But whether one agrees or disagrees with the result in R.A. V;, it s e e m
that this decisim is an example of the Court's (albeit a bare majorit).) ig-
noring the perspectives of people of color. There is no need, however; to
exaggerate R.A.K's shortcomings, as Catharine MacKinnon does when
she i~npliesthat in R,A,V. the Court found a First h e n d m e n t right of
racists to burn crosses on African AmericmSt lawns. "Like ponlogra-
phy," MacKinnan complains, "'cross burning is seen by the Supreme
Court to raise crucial expressive issues. Its function as an enforcer of seg-
regatiorl, hstifjat~rof lynch mahs, instiller of terror, and emhlem of offi-
cid impunity is transmuted into a discussion of specific 3isfavort.d sub-
jects."'"" The charge is unfair,'? Scalia begins his opinion by noting that
trhe cross bunling at issue "could have been pu~~ished under any nurnbel-
oC taws," such as the prohibition of terroristic threats, and ends by
emphasizing that the cross burnirlg involved in that case was a
"repm:he~~sible"' act.'"
""Fee speech" i s just the name we give to verbal behavictr that ser.ves the
substantive agenda we wish tc:, advance; and we give our preferred verbal
behaviors that. name when we can, when we have the power to do so, be-
cause in the rhetoric of American fife, the label ""fee speech'3is the one you
want yc3ur favtlrites tc:, wear, Free speech, in short, is not an independent
value but a pcjlilical prize.74
The fafiacy of Fish's argu""nt lies in its failure to recognize that the
terms ""political" m d ""ideological" cover a multitude of actik~ities,not all
of which. are sins. Most judicial decisionmaking involves value choice; the
formulation of judicial rules is a particularly value-laden exrcise, m d the
formulation af the rules that form free speech doctrhe especially so. For
instance, the relative importance one attaches to providing sufficient
places for robust and unfettel-cd public discourse as compared to ailow-
ent discretion to marwge its own afiairmrnight lead different
justices to different results in deciding whether airparts are ptrblic fa-
mms. Such value choices am a legitimate as well as m inevitable part of
constitutional interpretatim. Suppose, however, that in decidir7g the
s m e issue a justice reasomd as fdows: "Airpods are the favorite oloca-
tion of those obnoxious Hare Krishnas, whereas the evangetical
Christians whose views I a p e e with prefer to proselytize in traditional
public forums such as parks and ssetvalks. Accordingy, I h d that air-
parts are not public forum," This decision, too, involves value choice,
but of a very diMere~ltkind and one that does violate the central 'keutral-
ity'k~mmandot free speech doctrine.
Precisely what type of judicial value choice is legitimately part of con-
stitutional i~lterpretationis a much-debated question. Rut no one can
doubt that sympathy for or antipathy to the ""sbstmtive agenda" af a
particular speaker is plainly inconsistent with a free speech doctrine in
s a k e of democratic self-gwemilnce, truth secking in the mwketplace of
ideas, ar the nankstmmentaol values thought to underlie the American
free speech principle. 'Thus the concept of ideologically neutral free
speech regulation mans primaity (although perhaps not exclusively)
the avoidance of viewpoht discrimhation or other species of content dis-
crimination that might mask viewpoint discrimination. But: it emphati-
cally does not meal, nor could it sensibly entail, value-free decisio~tmak-
ing by those kvho directly regtrlate speech through legislation or the
judges who formulate and apply the constihrtional l h i t s on such ~ g u l a -
tion.
Fish's mistake, then, is to throw all normative judgments into the same
pat. Free speech doctriile claims to be ideologically neutral only in the
limited sense that govepnment m y not prohibit speech so as to aclvance
or ~ i b iat particular "substantive agenda" or warldview This is not to
say of course, that there have not been instances in which judges' sympa-
trhy for or antigathy against a speakefs "substantive agenda" ptayed a
m)C illtheir decisions. As Justice Douglas &served about the early "dear
and p ~ s e n danger"
t case: '‘[The threats were often loud but always
puny a ~ made
d serious o d y by judges so wedded to tt7e st&us quo that
critical malysis made them nervous."""And as we shall see, sympathy for
the goals of the civil rights movement seemed to have influenced several
Supreme Court decisions of the 1960s. But by and large, as is evident from
cases in which the Court prolccted the free speech rights of speakers with
whose ideas the justices obviously disagreed (for instance, c o m u n i s t s
urgh~gthe overthrow of the govcmme~~t or f(lan members t-hreatening to
take ""vengeance" if t k Supreme Court did not stop "oppressing" white
pmple)' free speech cases are usually decided on principles that tran-
scend concern about the speakrr's "substantiwe agex~da.~'
Fish% critique does, however, serve to underscore a point oftex1 over-
looked by defenders of c z l r ~ n free
t speech doctrine: Becatlse this doc-
tfine, including the ruk against viewpoint discrimination, is in service of
several w~derlyingvalue5 flowing from a particular vision of democracy,
American free speech doctrine is plainly not ideologically neutral in s m e
larger sense of the term. This =cognition raises the possibjlity that free
speech doctrine disserves trhe interests of womex~m d minorities, not by
discriminating agahst these interests in some rank, easiXy identifiable
way hut at a much deeper level. In this view, the very structure of free
speech dockhe is seen to p ~ k democracy"~
r cornmiknex~ttru liberklJ over
its guaranty of equality. It is to this m o fmdarnental
~ charge that I now
turn.
:Neutrality, at least in the formal sense, is free speech doctrine's s t r o q
suit. This dockk~e steadfastly reluws to exdt ar~ynorm, even trhe mast ba-
sic ones, ahove the fray olpMbic discorrsse and treats the most pernicious
ideas as solicitously as benign ones. It is not surpris.ing, the~fore,that the
radical claim that mad err^ doctrine discrimil7ates against minorities and
women does not withstand analysis. Radical critics are on somewhat
stronger gxomd, how eve^; when they a r p e that the eft-$cC of this neutrt.al-
ity is to perpetuate and reinforce racial and g e ~ ~ dineyuality
er
The traditional liberal view is that free speech m d equality; far from be-
ing conflicting valwes, are consonmt and re[infofcring. For hstance, liberal
philoso~fherRonald Uworkin writes that ""flhe most fundmentd egali-
tarian commmd of the Constitlrlion is for equ;zlity throughout the politi-
cal process," which demands that "everyone, no matter how eccentric or
despim"b-[e,have a chance to influence poticies as w d as elections.fff
Shifarly, the liberal W;;trren Court pushed both equaliv and free speech
rights further than they had ever been extended before and r e l y bad to
choose heween them..fn a seminal free speech decisio~~, Justice Thurgc-rod
blarshall declared that "'there is an k p a l i t y of status in the field of ideas'
and government must afford all points of view an equal opportunity to be
heard.
Radical critics, in contrast, tend to see frce speech and equality as corn-
petitors in a zero-sum game: Free speech" ggain is equaliw" loss, and vice
versa. They argue that in light of the great disparities of wedth and
polver, free speech" formal equality results in massive substmtive in-
equality in the marketplace of ideas. They point out that speech capable
of shapk~gpublic opimion is expensive m d thus not accessible to the poor
and powerless. Accordingly, to the radicals the claim that free speech doc-
trine is neutral because it protects all people eyually from government
censorship it; like saying that a law prevel7tIng people from sleeping un-
der bridges is neutral because it applies to rich m d poor alike. Moreover,
radical critics insist, free speech has never been m efZective tool for pro-
gresive social char~gein this country. They point out that free spee" cco-
existed with slavery and apartheid and claim that, contrary to popular
belief, it did. little to help the civil rights movement.'
R d i c d cri(ics arc. about half right. Much mrt. thar~First
romantics care to recopize, speech reinforces the stabs qu
ticularly true of the most innuential media-television, film, and popular
rommce novels, which tend to reflect the tastes m d pmdjlections of the
audience and thus reirrforcc contempormy culturd norms, including
racial and gender stereotypes. In contrast, the radical view that free
speech has never contributed to progressive social chmge is unfounded.
As we shall sec, the relationship beween the First Ame~~clmer~t and the
and consequently the relationship between free speech m d
evality-is a complicatcld me, not reducibie to any simplistic slogm.
F R E ESPEECH AS
A REINFORCER QUO
OF T H E STATUS
Radical critics comectly pojnt out that we live in a society with a masked
disparity b e m e n rich and poor, the latter being disproportionately peo-
ple of color and women. They stress that expression that most shapes
public opinion is not readily available to the less affxufmt. Decisions &out
what to put on the editorial page of the New Vvrk Ernes or what television
shows to broadcast arc. made by rich, predominantly white m&s and R-
flect, so radical critics claim, the class, gender, and raciaf biases of these
decisionmakerti. But especially when it comes to enterta
television shows and movies, it is not obvious that the viewpoints re-
flected are prharily those of the indlrstry executives rather than those of
the audience, or at least what the executives perceive the audictmzce" pper-
specthe to he.
Equality as Orthodoxy
There is one particularly significant instance in which free speech doc-
trine" rrtrlection, of the status quo ackrally serves to promote equality.
Radicals like to characterize those who carry lfie message of equality as
outsiders or dissidents and bigoted speech as the ""dminant narrative."E8
This is an outdated vision: Today hiatantly racist expression is the dissi-
dent speech, whereas the idea that racial discrimh~atimis wrongf trhe be-
lief that no one racial or ethnic group is inhere~~tLy slaperior to another,
and the commitment to equal opportunity regardless of race or ethnicity
is official orthodoxy For anyone who doubts this, X suggest the followinf:
trhought experime~~t: Imagine a candidate for CEC) of a large public corpo-
ration who duritlg the interview proclaims his belief in the genetic inferi-
ority of black people. It is inconceivable that the candidate would be
hired.19
Several high-profile incidmts in professional sports prove this point, In
the 1980s an executke with the Los Angeles Dodgers was fired for stating
that bIa&s might not have the ""necessities"' tct be Major League baseball
managers; irt the 1990s the o m e r of the Cincimati Reds was suspended
for using racial epithets and expressing admiration for Adolf Hitlet and a
professioml golfer lost a lucrative aclvertising co~~tract for making racist
jokes. This orthodoxy is so strong that in 2999 a city official in Wash-
ington, D.C., was fired (but then rehired.) for using the nonracist word
And in a constjtutjonaly dubiour; decision a panel Clsat
"'niggard:iy."'2t'"
evaluates the character of state bar applicants found that an applicant's
racist beliefs made him unht to practice law.2i
Showing just how socially unacceptable blatant racism has become,
Ralph Reed, as leader of the conservative religious group the Christian
Coaiition, acbowledigedi that white churcheskopposition to integration
in the South durir~gthe 3960s was morally w r o ~ ~Further
g. evidence of the
new clrthodoxy is that i-n conducting backgrollnd checks of potmtial pres-
idential appointres the FBI now routinely asks whether the person b e i ~ ~ g
investigated has ever made cJegratling statements based on race or ethnic-
ity- And although the military does not generally try to regulate the pri-
vate political activities of its members, it does forbid active membership
in racist o r g a ~ i z a t i o ~ ~ s . ~ ~
Admittedly' as R.A.V., recent affirmative action cases, and the Hithe
quotat-ion of Marrcjn Luther King Jr. by adfirnative action oyponents re-
weal, the idea of equaliy that has become orthodox is both IIarrow and
formal, perhaps even superficial. M e n it: comes to deeper, morcj subtle is-
sues-uch as the solution to the continued racial disparity in wealth and
educration or the causes of tfne distrust that often pervades relations
among e t h i c groups in this country-there is no consensus, let alone or-
thodo,y. And the racial ste~otypesthat continue to domilzate the mass
media, together with the absence of hterracial couples on television com-
mercial.~or g a m shows like the Dalkq Game or the Love Co~~nc.ctictn, sug-
gest that deep in their hearts many white Americms stifl do not believe
trhat blacks are really their equals. Nor, of course, do I meal to suggest
that virulent racism has completely disappeared from the Americm land-
scape. Btcctive Mark Furhmads shameless account of his raciallq. in-
spired bmtality and the horrendous dral;ging death of James Byrd Jr. in
Jasper, Texas, arc. examples that show that this scourge persists.
When it comes to gender equality, the new orthodoxy is even narrower,
For instance?although there is now an ovrrwhelmingly strong social cm-
sensus that it is wroxlg to h a women from e n t y into most occupations,
mnny peopic still publicly proclaim that women are not fit for certain
tasks (e.g., as combat pilots), a c o m e n t that fCw w o d d make openly
about m d e r s of racial or e t h i c groups. Moreover, although c u r r e ~or-
~t
thodoxy holds that women. should generally have a right to equal oppor-
tunity in the workpiace, there is no consmsus that women should exer-
cise this right rather than dedicate tfnemselves pri~narilyto raising a
family- Indeed, there does not even seem to be a consensus that women.
are as ""naturally suited" to be bushess leaders as men,2JAnd the femhist
critique that gmder relatiolls conthue to be marked by patriarchy a r ~ d
vp"c.?s"ionof women has not achieved orthodoxy, except, pehaps, on
some college campuses.
The current orthodoxy &out race ancf the dominant nar1-ative about
gender afford these ideas privileges of the status quo, hcludbg those be-
stowed by free speech ducthe. Eradicat-ing racial discrimination is con-
side~d a "compdling state interr;.st.'%ARd hccause racism is now seen as
destructive of commuxlity order, the Supreme Court view laws enhanc-
ing the penalty for bias-motivated cfirnes as legitimattz rcmedjes for the
dimuption to thc.community caused by racist acts rather than aegitirnate
attempts to punish ideology." Constitutional law thus has come a long
way from the Court" view in PIessy v. Feqzlsofz that attempting to achieve
a color-blind society amounts to unconstitzltional medcfling with the nat-
ural order of things." Similarly, the basic antidiscriznination principle em-
bodied in civil rights legislation outlawing racial m d gcmder discrimina-
tion has became so ingrained in the fabric of erican society that in two
recent cases it was taken for grmted that Title VXX was constitutional de-
spite its sekctive impact m bi$oted speech m d ideology3"ndeed, in one
case the Court goes out: of its way to draw a protectke circle a m m d Title
Vlf .27
That the ideal of racial and gender equality has become official
America1 policy also belies the "market failure""theory for the s u p p ~ s -
sion of hate speech. According to this theory because the influential me-
dia are controlled by white males, the message of racial and g a d e r equal-
ity is 11ot adequately represented in public discourse." To level the
playing field, some have argued, exp~ssionthat undermi,nes racid and
gender equalit\i, such as hate speech and pornography should be bmrled
f m public discourse. It may well be that t-he more radical views &out
race and gender are tmderepresented in the marketplace of ideas in part
because of white male domhance over the most influential media, But it
canr~otbe seriously argued that the basic idea of racial and g e ~ ~ dequal-
er
ity is not well represe11tc.d in ise public discourse. Even with respect to
the broader concept of equ;z%itythat has by no means become orthodoxy,
the concept of a market fai2ul.e is hard to sustain. The idea that t%ie legacy
of racism in this country accounts for the continued disparity in weaith
m d posifions of power betcveen whites anct blacks and that therelore
compensatory remedies are both morally justifiable and pragmatically
necessary has been widely ~ r c " s " " c f Similarly,
. radical perspeclives have
long been part of the discourse on racial issues: The separationist, "'black
powef' views of EldP?dgeCleaver and H, "Rap" Brown served as a coun-
tervoice t~ the liberal, integrationist message of Martin Lather King Jr.;
sime then, b u i s Farmkhan and Lconitd Jeffries have p ~ s e n t e dalterna-
tives to the mainstream intrgrationist And fhe radical feminist per-
spective. including the ideas of Catharine MacKin~~on and Andrea
Dworkk extensively discussed in. this book, is no stranger to public dis-
COUf se,
:In any event, as discussed in more detail in Chapter 10, a '"arket fail-
ure" in the markeplace of ideas might justify the govement's szcbsr'diz-
i q unde~presentc3dgroups OS views or even suppI@g the missing per-
spective in its own voice. :It does not, however. just~ysu~pretisilqspeech.
For one, speech s u ~ i c l w h nis not a logical remedy for prmvidil-tg an ab-
sent perspective. To the contrary/ unlikc subsidization or government
speech, suppression fhreatens to drive certain perspectives from the mar-
ketgtace of ideas, including viekvs that are nciCher racist nor sexist but
mi&t be mistaken as such, h y call for the suppmssim of racist and sex-
ist ideas as a solutiax~ta a1 alleged "market failure" is iserefore difficult
to see as a legitimak attempt to expand the scope or depth of p~xblicdis-
course to include an "outsid.erUprspective. Rather, t h i s argument reflects
trhe age-olcf propensity of the ""tlminant narrati\ief9to try to silence het-
erodox views.
:In sum, radicals am right that in some important respects free speech
doctrine is a co~~servative instihttion. Tkis doctrine is not a regirne unto it-
self but part of a legal system functioning in. a capitalistic society in. which
the wealthy have an enormous advantage in everything from housing to
educatio~~, from medical care ta legal services*Gurre~~tdoctrhe thus both
s reinforces the status quo, includizsg am economic system and
~ f i e c t and
power stmcture in which women and minorities remain underrepre-
sented. "fb the e x t e ~that
~ t free speech doctrine m e ~ l ymirrom deep= in-
equalities resultkg from capitalism or popular prejudice, there is only a
limited m o u n t that free speech doctrine can do to ~ c t i f ythis situation.
But where illequaljty is p e ~ e k a t e dby decisions such arr; Bzicklry and its
progeny; which are arguably in tension with deeper democratic values,
doctrine can fairly be blamed.
F R E ESPEECH A S
AN ANTAGONISTOF THE STATUS QUO
At the s m e time that it refiects and sometjmcs promotes the status qw,
free speech doctrhe rigorously protects speech that challenges the cur-
rent social order, Indeed, modem free speech doctrine is forged largely
f m the dissenting opi"io~~mf justimwha vainiy argued that radicals
who harshly denomce capitalistic institut.ians and urge their averthraw
should be allowed to have their say. Radical c ~ t i c si,n their fairer mo-
ments, do not deny that this is the o r i g i ~of~moderr1 doctrine. They do,
hwever, deny its efficacy as a rc.medy to systemic social oppression. Fos
instame, according to Delgado and Stefancic:
Our much-vaunted system of free expression, with its marketplace of ideas,
cannot cctrrect serious systemic ills such as racism and sexism simply be-
cause we do not see them as such, at the time, No one can formulate an effec-
tive contemporaneous message to challenge the vicious depiction; this hap-
p e n u r n @ much later, after consciousness shifts and society adopts a
different narrative.'"
It is true that during the first half of this century courts often ruled
against "i,nsurgent groups"' (particularly leftkt ones) who tried to use
speech as "an instrument of reform." But Delgado and Stefancic's claim
that trhe courts &o "almost invariably'" ruled against the free speech
claims of civil rights activists of the 1960s is simply wrong. To the con-
trary, the Suprcme Court '"almost invariahly'hruled in fivclv of the First
Amendrrrent claims made by civil rights activists, even h e n p~exj.Nting
doctrine seemed to require findkg agahst them.
The civil rights cases fall into three categories: (1)those involving
protests, sit-ins, and mass demonstratim; (2) those invoivi~~g ""pre
speech"; and (3) those involving attempts by southern states to impair
civil rights orgmizalions such as the riiAACfl." %me of these cases are
landmark decisions in which lfie Cowrt, consciously cor~ctingdefects in
prior jurisprudence, anounced. new prhciples calculated to protect not
just the speakers in the cases at hand but f u h w "insurgent groups" who
brashly chaile~~ge the stabs F. Other cases, however, are ad hoc deci-
sions seemhgly driven by sympathy for the civil rights movement m d
mtipathy toward the ugly tactics of the southern states.
Pvotectinrz of eiuil RighLs Puutestuus. Before the civil rights era, free
speech doctsine invested law enforcement officials with broad discre-
tion to order speakers to stop or protestors to disperse in order to pre-
vent a breach of the peace. For instance, in 1951 the Cowt in Feirzer a
Nerc~York trpheld the conviction of a young leftist who refused to stop a
street-corner tirade When odered to $o so by a policeman. W The police
officer had been told by an offended listener, "If you don't get that son
of a bitch off, X will go over there and get him off there myself." Aside
fsom this comment, the only other evidence that a fight was imminent
was " s o w pushing, shovjng and millh~garour~cl'"in a crowd of about
sevcnty-five to eighty persons. Twl.ve years later, in Edwards v. Solrth
Cnwl'inla, a group of black students assembled near the grounds of the
South Carolha sitatehouse to protest racial discrimination." A crowd of
h u t 301)onltlokers gathered neilrby Law enforcement:officials claimed
that they spotted '"potential: trouble makczrti" in this crowd and ordered
the demox~stratorsto disperse within fifteen minutes in order to prt.vc.lr7t
a fight. The demonstrators disobeyed this order and were arrested and
convicted for breach of the peace. This time, however, the Supreme
Court did not allow the '%heckler% veto" to stand a r ~ dreversed the con-
victions- Shortly thereafter, the Supreme Court similarly came to the res-
cue of Civil rights demonstrators who failed to obey m order to dis-
perse.
In Cox U. Ltoisianu, Reverend B. Elton Cox, a field secretary of the
Congress of Racial Equality (CORE), led about 2,000 students in a &mm-
stration near a Louisiana courthouse to protest ihe arrest of sturfents for
picketkg stores that mahtahed segregated lunch counters."%bout 100
to 300 whites gatlnered on the side of the street opposite from whertr the
protestors stood. Appoximately sevmty-five police officers w r e sta-
tioned on the skeet between the two groups. Cox gave a speech in which
he condemned the arrest of the jailed students and uvged the demonstra-
tors to sit-in at segregated 1mCh counters. Cox's speech eticited somc
"muttering" and ""grumbling" from the white onlookers. The sheriff
found Cox" speech to be inflammatory and ordered. the demonstration
"roker7 up immediately,"' When the demonstrators failed to disperse vol-
untarily, the police fired tear gas shells to break up the demonstration.
Cox was arxsted and convicted for breach of the peace and picketing
near a courfiouse.
m e Supreme Court reversed the convictions. Mafing an "'irrdependent
review of the mord," which included viewhg a film of the pro&stPthe
Court found that the evidence did not support Louisima's conclusion
that the assembly had become ""riotous": "The students themselves were
not violent and threatened no violence. . . . There is no indication that any
mernber of the white group tkatened violence. . . . Ax~dthe po:iicemen
. . . could have handled the crowd." As to the conviction for picketing
near a courthouse, the Court held that although the Louisiana stahnte that
baru~edpicktint; near courC1-rouseswas facially valid, it could not comti-
trutionally he applied to the demonstrators in this case, By initidly allow-
ing the pratestors to demonstrate acmss the s t ~ efrom t thg cowth~ll~f",
law enforcement officials had i-11 the Court's view "E]n effect" advised
Cox that the dernarnstratioinwas not ""near" a courfiouse wiehirn the terms
of the statute, m d thus the subsequent conviction was " m indefensible
sort of entrapment" in violation of due process of law.
Toward the end of .the civil rights era, the movement turned toward de-
segregating various northern institutions. In a 1969 case, Gregory v.
C h i q o , comedim Dick Gregory led a march from city hall to the mayor's
residernce to protest segregation in city schools."' W k n the "'number of
bystanders increased" and the "onlookers became mru1yrrthe police or-
dered the demmstrators to disperse in order tcr prevent what they bc-
lieved was '"impendinrg civil disorder.'" The cJernonstrators refused to dis-
band and kvere arrested for disorderly conduct. The Court reversed, but
on mmow gromd": As the Court read the record, the protrstors had been
co~~victed for tlne de~~~onstrakicllz,
not for a refU~alto obey a p o k e officerfs
dispersd order under conditions in kvhich \liotence from an opposing
group was imminent,
As in CoxI the Court in Gregoy rcversed the conviction on a technicai-
ity, thereby avoiding a harder, mare general free speech question, kvhich if
the Court had to mach might very well have gme against the civil rights
activists. Such relimce on tecKnicalities became a famfliar pradiice during
the civil rights era. For hstance, in Street. v. N e w York, the Court reversed
the conviction of a black man for burning a U.S. flag in protest of the
shooling of civil rights leader James Madith."" Sirccef was decided in
2969, twenty years before the Court was prepared to afford First
Amendment protection to flag burning as a form of political protest.
Indeed, if it had been foxed to decide the issue in 1969, it is likely that the
Cowt would have found no First Amndment right to flag b u r ~ ~ i n g . ~ '
:Nornetheless, the Court reversed the conviction 017 the gromd that the
formal charge contained w r d s t-hat the protestor had spoken as he huriled
the flag, creating "the possibility" that these w o d s played some role in
his co~~viction.
It is difficult to tell to what extent the ad hoc holdjings in. Cox, GregoryI
and S f m t or Edrvnud's inconsistency with Fcirzer were driven by sympathy
for Lhe civil rights nnovemerrt as opposed to principled free speech con-
cerns- There are, however, several decisions reverskg the convictions of
civil rights activists that are di&cult to explah other than as driTien pri-
marily by sympathy for the civil rights cause.
T%e civil rights stratem to end segregation included civil disobedience,
irz pa"icular sit-ins at segregated h c h comters and other places &at ex-
cluded or distrrirnir~atedagai~listblacks. By the late 195Cls, a series of
litzpreme Court decisio~~s had made dear that skate-imposed racial segega-
lion violated the Equal Protection Clause of the Fourteenth Amendment.
But because the Fourteenth Amendment applies mly to government ac-
tion, federai legslation wat; required to put an end to racial discrimination
in, privately okvned places of pubbc accommodation. Consequently, until
the passage of the Civil ajghts Act of 3964, blacks in many states could
legally be refusd service at restaumnts, segrctgated at movie &eaters, m d
othewise discrhjnated agaistst hprivately owned establishents open to
the public. Civil rights activists who continued to sit-in at segregatcld lmch
counters after being told to leave by the proprietors were thus violating
state trespass law, or so it would seem. Indeed, by defkition civil d'isobed'i-
mce involves law violation. It is therefore truly remarkable that h every
one of the seventee11sit-in cases that reached the Supreme Court from 1961
to %9M,the Court fomd some defect with the conviction.
Some of the reversak, though techical, identified real legal flaws. For
instance, in the first sit-in case, G~zmera L O E L ~ S ~the
~~Gstate
U , chaqed the
protestors with breach of the peace instead of criminal trespass-" The
Supreme Court reversed the convictions, fi~~ding no evidence in the record.
that pcilrefuf sitting-in at t%te lw~chcowters carried with it &c likelaliood
of kmistent violence or otherwise constituted a breach of the peace as de-
h e d by state law. Bnd in Petclrsarz v. Greenrtitfethe Court f m d that the ex-
clusiox~of blacks from Lhe lunch counter was nnandirted by a city ordi-
nmce m d thus was a result of unconstitutional state action.45
In other cases, however; the Court obviously stretched to reverse the
co~livictimliaIn ergfin sl, Mnrylnnd, for insta~ce,the Court found impcr-
mi,ssible state invdvement. with the discriminatory conduct because the
secufity guard who enforced a policy of racial segregatim at a privately
owned amuseme~litpark haci been deputized by the county sherifF2"~u.t:
as the dissenting just-ices pointed out, the state" role in this hstance "'is
no different from what it would have been had the anests [far chmhai
trespass] been made by a reguiar policeman dispatched f r m police head-
quartem,"' a situation that plainly would not have been a matter of uncon-
stitutional state invohement with the private discriminatory cox~ducrt.
Similady strajrted is the Court's ~asonirtgin Nouie v. CiCy qj' Col~ilillbia.~~
&lying on the worcfing of the South Caroha txspass statute that pro-
hihits "'entry . . . after notice from the owllier prohibitjng such er"ttryffthe
Court held that this statznte could not be constitzrtionally applied to pro-
testers uiho legally a t e r e d a department store inwhich black we= wel-
come but then sat down and refilsed fo leave a lweh cowliter from which
blacks kvere excluded. Although the Saufi Carolina Supreme Court had,
in affiming the convictims, construed the statute to cover remainislg on
p r v a t y after $&g requested to leave, the U.S. Supreme Court held that
at the time ot:the sit-in fie pmtestors would not have had notice that their
acts came within the purview of the trespass statute,
AIigned against the host of cases reversing tlne convictions of civil
rights protestors 017 constitutional grounds me a few that affimed convic-
tions. Qne such case, Adderlq .i?, Slttvida, upheld the conviction of demon-
strators for trespassing on the premises of a county jail," Anather is
Walker U. Birnzilzgham, in which the Court held 5-4 &at demoxlistrators
who defied an jrtjunction prohibiting them from marching could not sub-
sequentfy defend against a contempt charge by asserting that the injunc-
tion was unconstituti~)nal.~~ The Court explained that the prolestors
should have challenged the validit-y of the injunction in a f?igher court
rather tjhm disobeying it. (Rut In Shrdrflesruorflzz~ Kznlkgham the Court re-
versed a conWiCtjon of demanstratms in the same nnarcrh prosecuted for
violation of an mconstitzrtional ordinalizce.)"
Review of the civil rights protest cases thus readily $dies the allegation
that courts '%almost invariably construe[d] the First endment" against
civil rights protestors. There is, h o w e ~ ~ar purely
, technical sense in
which the claim that the First Amendment was not particularly helpful to
: many eases it was not actudly the Erst
civil.rights protestors it;c o r ~ c tIn
A m e n d ~ ~ ebut
n t other constitutional norms-such as due process (e.g.,
Cox and Bolak) and the prohibition against state involvement in racially
discriminatory conduct (e.g., Petersan and Grz"fli7z)-that protected the
civil rights activist^. The Court seemed particularly unwilling to construe
the First Amendmnt as protecting trespass on private property (even
whe21 the tmspass took the form of social protest) or as protmting mass
demonstrations near courthouses that might interfere with the orderly
administration of justice." "stead, the Court freque~~t-ly used the much
more malkabk concepts of due process and stale action to overtun7 con-
victions of civil rights activists. We shodd not, however, lose sight of the
First Amendment's crucial role in many civil rights demmstration cases,
such as the limital-ions on the state's ability to collivict demollistrators for
breach of the peace-
Protection of the Mass Media. :In dismissing the importance of the
First Amendmat to civil rights activists, Delgado and Stefancic join other
radical critics in, mairttahkg that the "'greatest strides" "toward racial jus-
tice came not from peaceful protests protected by the First Amendment
but as the result of ~~"tprotected activity. (It is not clear if they meal just
nonviolent civil disobedience that was the hallmark of the civil rights
movement in the South or wl-rether they include such violent episocfes as
the W t t s riots, which many credit with alerting white America to the
plight of urbm blacks.) The relative role played by law violation as com-
pared to constitutionally protected speech in accomplishing the goals of
the civil rights movemnt is difficult to assess. h"ty such assesment is
made m o probiematic
~ by the Court" eeffectiwelycorliferril7g constitu-
tional protection in many cases on activity such as tres-pass that ordkarilly
would not find shelter under the First Annendment. In any event, it is
probable that nei&er protected nor unprotected prokstqlayed a large di-
rect role in influencing the populm opinim that ~ s u l t e din civil rights leg-
islation, Rather, it was the brutal tactics of southern law enforcement offi-
ciaIs in resporlse to these demmtrations that caused the shift in
consciousness.
&re than anything, it was the images of hog-jowled police siccing
s ~ ~ w l i nGema"t
g shepherds on young civil rights protesters or bowring
them down the street with high-powered fire hoses that won the sympa-
thy of the Ameknn populace.'"t was the mass media that conveyed the
hll story of this brmhlity to ehe erican people. As the Unikd States en-
tered the civil rights era, First Amendment protection afforded media crib
icisrn of official conduct suffered from a cmcial weahess. :In dicta in a
1942 case and in an actual holding ten years later in a case involving g r o q
libel agah2st Akicm h e r i c m s , the Supreme Court categoricaUy excluded
libel from First Amendment prote~tjon.~This defect was not lost on south-
ern authorities, who used libel laws to attempt to curb protest against their
oppression of blacks.
:In 1960 an Alabama jury retrumed a $500,IXIO libd judgment agaillst the
New Yo& Rmes a ~ several d black clergyme11 for a fund-raising advertise-
ment decrying "an unprecedented wave of terror'' against blacks engaged
in nonviolent dmmstraLions in the South. L. B. Sullivan, the Montgomery
issimer, sucd the 7Fntes ard the clergymen for certain minor
ixlaccuracies in the advertisement. As discussed in Chapter 2, the Court
used this opportunity to remedy the inadequate protection of public dis-
course provided by free speech doctkle. In the l;mdmark case of New York
Times v. Sulliztr;rlt,'" the Court held that false statements about the official
conduct of a government 0fficia.l could not f o m the basis of ;a libel suit m-
less the. public officiai could prove that the statements were made with
ho'~vledge of their falsity or wi* rcjcklest; disregard for the truth.
Like many radical critics, Robh Barnes characterizes as a "myth" the
assertion that "puhlic pmtest rights played a pivot& rote in secwing civil
ri@s for black America."' Unike Delgado and Stefancic, however, B m e s
achowledges the importance of other aspects of free speech doctrine to
the civil rig:hts movemernt:
It was,in fact, the protection guaranteed to the press which had a crucial irn-
pact upon the efforts tctward constructive engagement, that Xed to sipifkant
changes for Blacks and other Americans. Newt; =ports, stinging editorial
cctlums, and paid advertisements that doubled as fundraising mechanisms,
similar to that featured in New York Ernes v. Sulfs'vaf~,
had a far more discern-
able impact upon the life of the Civil Rights Movement [than did demonstra-
tions]."
Like the pmtest cases, the impetus for the result in S ~ ~ I l i v amay~ z hitwe
been sympathy for the goals of the civil rights movemex~kas well as &-
horrenre of th.e tactics of southern officials. But mlike mmy of the protest
cases, the Court in Szkllizrnn amounced a general prjnckle calculated to
. ~ ~ even 3,as some radicals claim, the
protect all critics oi g o v e r m e x ~ tArrd
true impetus for this case bvas thg prafC1Cti0n of powerfd commercial in.-
terests in the f o m of media giants such as the Nezu firk Times (a dubious
proposition, give11 the l o q prior existerlee of powerful publisf-rinl: em-
pires with no such protection), there c m be no doubt that this decision
came at just the right t h e to aid the civil rights movement in its attempt
to influence public p pinion.^'
We cannot close our eyes to the fact that the militant Negro civil rights move-
ment has engendered the intense resentment and opposition of the politi-
caily dominant white community of Virginia; litigation assisted by the
NAACP has been bitterly fclught. In such circumstances a statute brc~adly
curtailing group activity leading to litigation may easily become a weapon of
oppression, however evenhanded its terms appear. Its mere existence could
well freeze ctut of existence all such activity con behalf of the civil rights of
Negro citizens.
Reh-lrrring to doctrine, lrhe Court held that only a "compelling state inter-
est" would justiry such an inCrusion on First Amendment activitjes and
concluded that traditional interests in regulating solicitalion of legal bud-
ness did not justify fie statute" prohibition on NAACI' activities.
In addition to such direct attacks on the NMCI;: the southern authori-
ties mployed hdirect measures in their efforts to crippfe the civil rights
organization. The primry tactic of this sort was to demand disclosux of
trhe NABCI'" mmcmberr;hip Est. Givm the intensc. hostility of many white
southerners toward the NAACP as a result of its successful legal bat2les
for civil rights, and in ljght of the demonstx.attzd wiIlingness of some of
these argry bigots to resort: to violerrce to maintain segrqation, release of
these lists would have hacl grave consequences for NAACIbmbers. As
southern officials no doubt calculated, such disclosure would deter mem-
bership ht-he organization and &crease tlze dues and olher co~~tributions
through which the orgmization financed its litigation. Indeed, there is ev-
idence that just the demands for the membership lists, even though ulti-
mately resisted, served to reduce both membership and co~~tributictns to
the NAACP in the S ~ u t h . " ~
As was the case with much of free speeh doctrine at trhe daw11 of the
civil rights era, the sorry state of First Amendmerrt doctrine seemed to of-
fer little hope far constitutional protection agaixlsl the state" demand for
the NAACTJ" membership lists. This time, however, it was not just cases
=lists that seemed to forectose protectio~~ but, ironicaily,
a 1926 decision involving the Ku Klux Klan as well. In Bryant v.
Zz'mmcrnzatz, the Court had mled against a K1an member who had chal-
lerrged a New Vork law that called for disclosure of mernber msters oi any
orgmization requiring an oath as a condition of membership."' Despite
this precedent, the S u p ~ m Couat
e would rebuff every attempt by south-
ern states to obtain names of NAAGP members.
The first membership list case, NAACP z?. Alabama, was decided in
495S."'TTh ease g r w out of a cor~troversybetween Mabama and thc.
W C I ) concen~hrgwtlether a state law requiring out-of-state corpora-
tions to qualify to do business in the state applied to tke activities of the
NAACP in Alabama. (The parent organization was a New York covora-
fion, hut mast of fhe NAACFs activities in the state were conducted by
locaf affiliates.) Ostmsibly to demmjl-te whethgr the affiliate's parent cor-
poratim was d o N business in the state, Alabama requested a vast quan-
tity of documnts, including lists of mcmbers. h1 a seminat o p i n i o ~ recog-
~
nizing a constitutional right to association, the Court held that under
these circumstmces Ali-tbama's d e m n d for the membership list violated
ex~dmcnt.Writjng for a unanimous Court, Justice Harlar~rec-
ognized that ""[elffecti,veadvocacy of both ptrblic m d private points of
view, particularly coaltroversial ones, is undeniably eIIhanced by group
association" and that iherefme state actiox~that has the effect of curtaihg
the freedom to associate is subject to "the closest scrutiny." The Court:
made clear, mwover, that this scnztiny was applicable even when the
state takes "no direct action" to restrict the right to association. Rather, the
key inquiry was whether ahridpent of the right would "inevitably fol-
low" from the government action.
The Court had no doubt that in these circumstances disclosure of the
list wouid result in such an -nbridgmerrt, notirtg that past revelation of the
identity of members had "exposed these members to economic rcrprisals,
loss of employment, threat of physical coercion, and other manifestations
of public hostifity." Because the requested mentbersfip list had no "sub-
stantial bearing" on the question of whether the parent ~o~r)oration was
doing business in Alabma, the Court found that the state's need for the
list was not nearly "compelling" exlough to justify the infrh~geme~~t of the
group" Firs"rmenQment rights. B ~ a nv.f Zz'mmerman was disthguished
on the gromds that the Klan" actkities involved "unlawful intimidation
and violence" and that unlike the NAACI>,which had b n ~ e dover other
information reqt~estedby the state, the Kfan totally refused the state's re-
l%e soufiern authorities did not meeHy fold their tents after this initial
defeat but conthued to try to obtain disclosure of the NAACIP" member-
ship list. These attempts sparked four more Srapreme Court decisions, all
of wl~ichrebuffed these efforts. The schemes to force disclosure, however,
become successively mare sophisticated: Alabama" attempt bvas aimed
specificdk at the NAACP, whereas the statutes involved in these later
cases were more generally applicilble, For ii7star~ce, Arka~~sils law re-
quired teachers in a state-supported school.ar college to amually fife ""an
&davit listiPlg without h i t a t i o n every orgmizatim to whith he has be-
lox~gedor regularly conkihuted within the preceding five years.'"n
Shell-(mU. Rrckel; this law was chailenf~edby a Little Rock schoolteacher
and NAACI" member whose contract with the school district was not re-
newed when he ref-used to file the re.yuired affidavit.""T%e Supreme Court
invalidated the law on First Amendment grounds, finding that the
"statute% comprehensive interference with associational frcedorns goes
far b e y o ~ ~what
d might be justified hthe exercise of the State3 legitimate
inquiry into the fitness and competency of its teachers."
A 1963 decision, Gz'bso~zU. Flurilaa Legklgtivc f~zve~tigafinn C~nzrrziftee~
in-
volved the final eft-orZ:by southem authorities to force the NAACP to turn
over its membership list.h7As part of a Florida legislative investigation
into alleged communist infiltration of the Miami MAACI: a legislative
committee ordered Theodore Gibsm, the president of the NAACPfs
Miami branch, to turn over the entire list of members of the brmch. The
Florida Supmme Court refused to enforce this order but stated that the
committee could require Gibson to bring the list with him to the hearing
as a reference to determine if any specific person ideMi8jed as a c o m u -
nist was also a member of the NAPICE When Gibson refused, he was
held in contmpt' sente~~ced to six months in prison, and fined $1,200,
In prior cases i1"tvolWillg investigation of commm'lid actiWities, the
Court hacf generally u p k l d th.e power of legislative cornittees to c m -
pel disclosure of information. For i~~stance, in Barenblatt zr. United States,
the Court had sustained the conkmpt conwictim of a college. insbucrtor
who kvoz-tld not answer questions concerning his membership in the
Commmist Party posed to him by a corzg~ssionalcmmittee looking
into alleged Communi?;t.infiltratior~in higher education." And in UphUzis
v. Wyman the Supreme Court h d ttphelca a contempt conviction against
the executive director of World Felhwship for refusing to turn over to a
state i\ttorney ge11era1. investigath~gsubversion a list of i;uests who had
attended a summer c m p hosted by that arganizati~n.~'
In Gibsun, then, the NAACP line of cases, in which the Court had uni-
formly rejected the statrshttempts to force the NBACIX" to identify its
members, collided with the commtxnist legislative investigation cases, in
which the Court had genera1l.y upheld the requests for disclosure. Which
line would control? The Court close to wiew the case primarily as one in-
volkring in\restigation of the PISAAGE a "legitimate" organization, rather
than investigation of the Communist Pasty, which is not a "legitimate po-
litical party"%but m organization whose membership ""is ifseva permissi-
ble subject of regulation and legislative scrutiny." "e Court accordingly
reversed Gibson" contempt citation, thereby maintaining its perfect
record of protecting the NAACP from various onslaughts by southern au-
thorities who, quite correctly, viewed this orgmization as the nemesis of
m oppressive social structure.
There is much about free speech cases of the civil rights era that is fairly
open to differing intery>rc?t&ins.For instance, it could be argued that the
lopsided results in favor of the civil rights activists were driven primarily
by the Court%sympathy for the goals of the civil rights movement rather
than a principled concern that prior doctrine inadequately protected the
rights of those agitating for social chmge. Sirnitarw, reasonable minds can
differ as to just how helpful these S u p ~ m Court
e decisions were to the
ultimate success of the civil rigfits movement It certainly c m be argued
that protection of those convicted of &-ins m d other seemingly illcgat ac-
tivity was not very important. In contrastr, fhe Court's protectiox-r of the
NAACP" membership lists and the press" ability to hform the nation
&out the reprehensib%econduct of the southern, authorities would seem
tru hawe played a significmt role in e~~dirng vartheid in this coul-rtry More
generally; it is hard to imagine the existence, let alone the success, of
something like the civil rights movement in a society that does not to
somc. sipificmt cxtex-rtprotect free a d open public discourse.
Rut if thcl importance of the Suprc?m Court's protecticln of tfie civil
rights movement to the success of the movement is open to argment, the
fact that the Court provided protection is not. Thus the claim that the
courts "invariahiy construed the First hendment'hagainst the ciwil
rights movement is not a creative revisionist theory providing a revealhg
perspecti\re but rather a gross misstatement of h o w a b e and verifiabe
fact. As this revkw of the civil rig:hts protest cases shows, in almost every
case the Supreme Court either "const-rued the First Amendment" ha away
that fatvored the interests of the civil rights movement (e.g., New York
NAACP v. Brltton) or fou~~d.
Tinzcrs L). S~iIlZva1~; some other, often ad hoc way
to rule an the civil rights side (e.g., mmy of the protest cases). Indeed, as
late as 1982, in NAACP v, CFaiborl"teHardruare, a case that took decades to
wcsnd through the judicid system, t-he Supreme Court revcrsed a large
monetary jdgmcnt ilgainst the PJAACI" arising fsom its boycott of white
merchants in the mid-I96Qs,""
o Permi
Broad Hate Speech
and Pornography Bans?
I have so far made two major points regarding proposals to regulate hate
speech and pornography: In Chapter 4 I demonstrated that free speech
doctrine permits neither a broad ban on hate speech nor the suppression
of sexually explicit but nonobscene material; in Chapters 5 and 6, I exam-
ined various claims that the failure of doctrine to recognize hate speech or
pornography exceptions to First Amendment protection reveals a sys-
temic hias against minorities and women, and concluded that these
claims are gmssly ovemtated, But neither d these conclusions does much
to answer the question whether doctrine should be modified to permit the
suppression of racist ideas and sexually explicit material demeaning to
women. It is this difficult issue that X explore in this part of the book.
Another w y to pose the question is to ask whether American society
would be better or worse off with such restrictions. This is obviously a
large question, involving empirical, doctrinal, and theoretical inquiries.
To assess the merits of hate speech and pornography regulations, we
need to identify the harms of hate speech and pornography and then
judge how effective the proposed restriction would be in eliminating
these harms. We would also need to explore the possibility that these
laws would be misapplied to squelch the expression of women and mi-
nor2ies. Relevant to these empirical inquiries is the experience of other
democracies that have adopted such measures. But even in this part of
the book, we cannot escape doctrine altogether: A key question is
whether there is any principle that would support bans on hate speech
and sexually explicit material demeaning to women that would not be so
broad as to permit restrictions that would impair basic free speech values.
Assessing the benefits of hate speech and pomograyhy har~sii.lvo:ives two
related yet separate inqsriries: an evaluation of the harms posibly caused
by trhis speech m d a prediction of the effectiveness of the prohjbition.
Instilling Self-I-latred
:Matsuda and others hitwe argued that one of the most damaging effects of
hate speech is that members of the groups defamed by this expl-ession
"'internalize" the message ilnd come to believe in their own inferioriey."
Self-hate, or at least self-derogation, is a wel:i-hom phenomenon that af-
flicts many if not all merrrhers of ethnic: groups that have suffered cen-
turies of ogpressiom. This is particdarly true if they live in a society that
prizes cultures other than theirs. K. B. Clark's heartrending accomt,
made famous in Bmwlz L). Board of Edzlir-atiotz, of little black girlsf prekrring
white dolls over bmwn dolls is one example.' h d in my own experience
most Jews born and raised in the diaspora have to s m e d e p e internal-
ized t-he dorninant culture3 not always pa"itive view of the Jewish peo-
ple- .A crucial question that proponents of hate speech bms do not ad-
dress, however, is to what extent hard-core racjst exprcssim-as opposed
to the more subtle images of minorities in the mahlistream media-is re-
sponsible far this pr~blenrt.~
Group Defamatio~
Racist propaganda is often defamatory in that it contaixls scurrilous lies
about members of racial or e t b i c groups*7;(,the extent that this expression
causes offense, insult, psychic injury, self-hate, or acts of discriminatim
against mentbers of the defamed group, these harms overlap with those
just descrilbed. But as Matsuda emphasizes, group defamation pmduces
other jnfuries as well. frrespective of any illegal, discrinzination it might
cause or hurt k e h g it may engender, racist propaganda "dista~cesright-
thinking dominant-group members from the victirns, makng it hader to
achieve a sense of humanityYf~Et forces the dominant-group mem:bers to
use "kid gloves"' when dealing with ddamed minorities, and it causes mi-
norities to view all "'dominant-group members with suspicion."15
Por~~ography, accordh~gto MacKinr~on,similarly defames wmer~.'"
It may well be that the defamatory images of women and certah racial
and e t h i c groups interfere with hamonious social relations in this com-
try, More doubtful is whether pornography and blatant racist propa-
gmda are significmt caut;es of this harm or whether, as I hawe said before,
more subtle irnaging in the poptrlar media as well as trpbringing and
other foms of socializatjon arr;the primary culprits.
This is not to say, however, that broad restrictions on hate speetrh and
pon~ographyw d d m t risk wme serious negative consevences. A
mare realistic fear is that law enforcement officials will misapply these
laws to punish expression that is unpopular or offensi.ve but neither racist
nor porz~ographic.Before the S u p ~ m Court
e narrowly confined trhe cate-
gory of obscenity, as 1 have mentioned, gover~~ment often tried to sup-
press what are now seen as important works of art, such as Javnes Joyce's
Uksses and Henry Miller % Tropic cif Cancer and Tropic of Capl;icor~~,'
More
recently; hate speech laws have been misapplied in other countries. In
1985 Danish National Television broadcast an interview in which several.
mernbers of a racist gmup expressed their views. Mthough it was u d s -
puted that the purpose of the program. was to inhrm the ptdhlic of the ex-
istence of racism irr Denmark, the interviewer and the editor of the pro-
g r m we= charged and convickd of violating Denmark" hate speech
awe3In India, irt what am lndian legat expert demibes as Aagrant abtrse of
the law, New Dehi bamed Salman Rushdie" Satanic Verses."
I h e costs of such misapglication cxtel~dbeyond the artud pufiishmcjnt
of innocent expression. Such misuse will also likely cause would-be
speakers to censor themselves for fear that what they wmt to express,
trhough neitber racist nor pornographic, migbt: be mistaken for such. This
chilling effect could occur even if law ellforcement officials would not ~II
fact misapply the statute ta innocent speech. But the degree of self-
censorship dbviousk increases with each mis~plicationof the law.
Propor~el~ts of broad pornography bms argue that this Chilling effect
call be mi,tigated by ena'mement through civil lawsuils rather than the
criminal. law. Thus several recent proposals to curb poralogfaph~iizclud-
ing .the one by h o r k i n and Mac on, are lhited to civil remedies. It
is true that as a general matter civil liability is less chillkg to pmtected
speech than criminal punishment. A book dealer is morcl. likely to sell a
sexually explicit book fhat is not in fact pomograghic if selting pomogra-
phy irrvokes a civil sanction rather than a crimbal penalty. This is true
even if the civil and crimil-lalpenalties jnvolve exactly the same monetary
assessment, far the civil fine does not carry the stigma associated wieh a
criminal conviction, And cvhere the criminal pertdty includes the possi-
bility of imprismment, the book dealer would, ordinarily be much less
likely to sell the questionablebook than if he faced or~lythe posibility of
a fine.
StilJ, civil remedies are capable of having a cmsiderzlble inhibiting ef-
fect, s o m t i n e s even greater thar~criminal smctions. For instance, a
$10,000 civil fine is likely to be m m of a deterrent than a criminal sanc-
tion of only $1,000. Even when a criminal penalty c a ~ e the s possibility of
a short prison sex~tel~ce, this smction mig:ht w d be less chilling than a
hefty civil penalty particularly when imprisonment is only rarely im-
posed, It should also be borne in mind that in criminal proceedings the
state must prove each esseneal element of the crime beyond a reasonable
doubt, wi?ereas the burden is usually far lighter in civil proceedings.
More tellhg than the often quite formal distinction between criminal and
civil sanctions are lfie specifics of the remedial scheme in questiort.
It is not ilt. all certain for instance, that the scheme provided by the
Indianap4i.s o r h a n c e discussed in Chapter 4 would have a significantly
less chiilh~geffect than criminai sanctio~~s. Under the traditiortal criminal
appmach to regulating obscenity; the decision to prosecute is made by a
professionally trained law enforcement official who will ordinarily file
cbilrges only after detcmhil7g that under tt7e applicable law, including
constitutional limitation, a conviction is likely, Under the Indianapolis or-
dinance, in contrast, nlzy woman aggrieved by the sale of pornography
may file a complaint ""asa womm acting agai~instthe subordinaCion of
women." An administrati\le agency is then e m p ~ w e ~ todissue "cease
and desist" orders against the sale of pomography and to render mone-
tary awards to comp"n"ate for '"osses'kccasio~~edby pornography. 'Ehe
determiuration is subject to judicial review, and courts are empowered to
issue infunctionsagain.st the sale or distribution of pornographyr
Appare~~tly as a safeguard against hivolous suits, the Indianapolis or-
dinmce provides that the administrative process camot go forward u11-
less a panel of the "equal opportunity advisory board" finds that there is
prohable cause to proceed. Serious review at this stage couln significantly
mitigate m y ovcrrenforcemertt problems. Conversely if review at this
stage is toothless or otherwise ineffective, producers and sellers of sexu-
ally oriented but norrpomographic materials will likely be subject to
costly and protracted proceedings and &us may decide that it is easier
not to deal in the material in the first place.
Perhaps the greatest danger of broad hate speech and pornography
laws is that they will be selectively applied against Ihe very gmups Lhat
they were der;jgned to protect The hjstory of speech regulation in this
country and recent experience in other counh.ies show the potential for
hate spmch and pornography hVh"s to he used against unpopular minori-
ties, be they ethic, religious, or political,.As discussed h Chapter 2, the
prohibition against content discrimination peculiar to U.S. free speech
doctrine is a conscious reactioxin tro persisterint misuse of various speech
regtrlatians agakst radical dissidents prosecuted not because their ex-
p~ssio11realistically posed any dmger tit interests that the laws legiti-
mately sought to protect but because their ideas offerinsivety challeringed
the st&us quo. In this r e g d , if: is noteworthy that the only case in which
a musical ~ c o r d i n gwas declared obscene involved attempts to suppress
trhe sexuaily vdgar music of a blitck rap gmup under Florida's obscenity
laws." Radical critic Kimberlg Crenshaw, though disturbed by the misog-
yny e x p ~ s s e din the lyrics, nevertheless notes that the prosecution raises
"'serious questions of racism,'" both because of its "apparex~tse1ectiwit.y'"
as well as the court's "'apparent dimgarci fc,r the culturally rooted as-
pects" of the music.'
Experience in other countries sholvs how hate speech laws c m back-
fire-The first trse of Israel" hate speech law, enacted in response to the ac-
tivities of the Jewish extremists, was against I'alesthians.Wthou& "the
chief okject'" of RritairT"s I965 hate speech legislation, which outlaws "'in-
citement to racial h a t ~ d , "was to "curb hostility to immigrants from the
Caribbean and the lndian sub-contbnent," there were "few prosecutions,"
and of the few that were brought the jufy often acquitted. But "some of
the successful prosecut.ions were of black peaple accused of kcitiirrg ha-
tred of white people."'" In 3.991, under an awnended version of this law, a
notorious bigot who for years had distribukd highly infla
Semitic literature was given a suspended sentence; that same year a
Jewish mmager of a shop selling Nazi memorabilia was sentenced to two
mo~~ths' imprisonme~~t.'"'
In I986 Britah passed a labv that made it a crime to use "threatenhg,
husive or insulting war&" or displays or behavior likely to cause ""h-
rassment, alarm or distrw""to ar~othed9espitethe ""aimof [this law] to
take artion agairlst those who intimidaltl the vuinerable," it has bee21 used
to ""pmecute students who tried to put trp a satirical pogemf then Prime
Mhister M q a r e t Thateher, demorzsh.ators who ran onto a cricket pitch
tru protest against cricketers playing in Sou& Africa, and a demonstrator
outside Dawnkg Street.ppf2
W o pmvisions of Canada's p a d code exprew"ly prohibit hate speech:
Sectior~318, which forhids the adwocacy of genocide, and Section 319,
which outlaws inciting or promoting "hatred against any identifiable
group." In addition, Sction 3.81, which bars the spreading of fabe news,
has bee11 used to p u ~ ~ i racist
s h lies such as Holocaust denial, Although in
recent years these provisions have been applied mainly to hard-core
rad.st exp~ssiomzby whites," in ihe past they wel-e often brought to bear
on nomatlist speech by minorities. At the beginning of the century,
Section 281 was used against an American who posted a sign on his store
saying that he was leaving because Americans were not welcome in.
Canada; in the 1950s it MS used agail7st civil rights activists for publish-
ing a pamplnlet crilicd of the government's treatment of Jehovah.'~
Witnesses; in 1.970it was applied to publishers of an underground news-
paper for mn~"ti~lg a parody of a mainstream ~~ewspaper.'%ater in the
2970s, Section 33.9 was used to convict fsmcophone rights activists who,
in order to garner support for a French-language school, circulated a
pmphlet purporting to be from a11 anti-French group."'"In the 2"380s,
Canadian customs officials detahed at the barder for more than a month
a film about Nelson Mandela on the grounds that it might promote hatred
against white South Africa~~s.'~
The cases in other countries thus suggest that there mitght well be some
misuse, particularly the selective prosecution of minorities, if a broad
hate speech ban were enacted in the Unikd States. Just how much misuse
would occur is imposs&le to say, although the experience elsewhere pro-
vides some evidence that it might not be extensive," We should not, how-
ever, take too much comfort in this. In other democracies with hate
speech Zabvs, the decision to prosecute hate speech is usually made at the
highest levels of the national government (often by the attorney general).
As a resuit, iprosecutio~~s are relatively few a l ~ dcmfully chosen, usually
reserved for the most blatmt forms of hate speech. In. contrast to mast
other nations, where the crixninal law is primarily the responsibility of the
national goverrtment, in ihe United States state and local governments
have primary auCf*LC)Tityto make and admi.nister crimhnl law. Our federal
system would probably nut allow for the centraljzed control that is
largely ~ s p a ~ ~ s ifor
h lIhe
e restraint in e~~forcrement of hate speech laws in
other democracies. And it is worth emphasizbg that it \;vould not only be
states that might enact hate speech restrictions but local authorities as
well. h~dced,almost all the recent hate speech cases in this country in-
voke local ordir"tan~es.~~ With so many ~urisdictiomspotentially enactjng
and enf0rcin.g hate speech laws, the possibit.ity of widespread prosecu-
tions by mbitious, publicity-hungry district attorneys cannot be ruled
out
Experience in,other corntries similarly reveals the potential for broadly
worded pornography laws to be selectively used against gays and les-
bians. As Catherine Itzin, a British aclvocate of :Macf(ir~nor~-&orkin-style
antipornography legislation, has written:
The deliberate vagueness ctf the definition of obscenity and indecency [in
Britain] has left the legislation open to abuse. It has ccmsequtntly been used
as an instrument tct censor art and literature, to ctppress g a y ~ n dletjbians
and to control women's fertility . . . As recently as the 29'70~~
obscenity legis-
lation was being used agaimt the radical, counter-culture "underground"
press. . . . bsf Exit to Brc?oklyn was prosecuted in 1967 as obscenity because
of its portrayal of homosexuality and drug-taking.
Hornosexualit~.,wfnetl-rer gay or lesbian, has historically been regarded a s
inherently obgenez. In 1936, Radcfyffe Hall's T'ze We/! of^ Loneli~resswas dt-
cXared obscene because it dealt with lesbianism, and as recently as 1984
Gay" the Word Bookr;hop was prosecuted [and prosecutc~rsseized] 142 titles
(8f10 items) ctn the grounds that they were ""indecent and obscene,'\ . . The
material was prosecuted because it was homosexual not because it was ob-
scene: it included literature which would merit no legal action if it were het-
erosexual, books already avaiXabIe in the UK, on syllabuses of respectable
higher education instituticms by writers such as Oscar Wilde, Kate Mitlett
and Jean Genet. Silver Moon, the women's book shop, reported that . . . their
imported feminist and lesbian books were regularly opened by custom offi-
cers under the guise ctf a search for ctbscenily-a form of infc3rmai unautho-
rized harassment,'"
Just beca~~se broad hate speech and pornography laws have a tendency to
be misused does not mem that such abuse is herditable. At the s m e time
it underscores the potential for misuse, experience in other democracies
also provides widance on how to avoid misuse. If those wlto draft hate
speech regulations were to carefully heed these lessons, it might be possi-
ble to draft a hate speech pfohibition that would minimize the potmtial
for misuse. I m less sanguine., however, about the possibility of doing so
with respect to bans on sexually graphic material demeaning to women.
A stahte describing a class of hard-core racist proyaganda with suffi-
cient specificrity would minimize its misapplication to nox~racistfor ar-
guaby nonmcist) expression. Such specificity and narrowxless of scope
would also, I believe, eliminate anqi sipificant Ailling effect. Just as there
hawe for ihe past twenty-fiwe years been bans on highly explicit sexuaily
oriented speech (obscenity) wit.lnout zuidespread misappXieation or signifi-
cant chilling effect, it m y be possible to target extremely explicjt and
highIy inElamatory racist propagan&. Of course, trhe price for such
specificity is that analogous to the constikrtiolnal protection m w afforded
medium-core pornography such aa Hgcstkr and Pcl.~fhous~ magazines, ma-
terial with racist ideas would be h m u n e il the author made an effort ei-
ther to disguise its racist htent or soften its message. h addition, pseudo-
scimtific daims of racial inferioriv and pseudohistofical claims such as
Holocaust denial might have to be given safe harbor if presented without
racist jnvective. It is probably not possible to draft a lakv that could ade-
quatrly clisthguish between crackpot racist theories dressed up as schol-
arship and ge~~uinely aradentic but arguably racist wofks such as The Bcll
C~krne.'~
This need to provide breathing space for nonrxist discourse raises the
quu""i011 vhJhei-her such a n a r r w statute wodd e&cti\iely serve the goals
that proponents of hate speech laws wish to accomplish- In recent years
some couIItries with hate speech bans have minimized misapplication
and the chilling effect by resel.\iing prosecutims for the most egregious
examples of racist speech. This restraint, however, has drawn criticism
from those who believe that a cautious approach has &bed the laws of
their effective~~ess.~
Even if application to nnnracist speech c m be woided or miaimized by
careful drafthg, there remains the probkzn of &proportionate irnpact on
minority groups. The difficulty is not simply one of seIective prosecution.
The disparate impact t-hat the British hate speech law had 01.1black-power
advocates in the 1960s was apparently not just a result of selectivit-yon the
part of prosecutors but stemmed also from the tendenry of juries to acquit
white dcfer~dar~ts while convicting black ones." The application of the
death penalty in the United States, which was traditionaUy imposed more
often on blacks than whites and still depends to a large extent on the race
of the vktim, suggests that hate speech laws might be used dispropol.lic,n-
ately against black racists, such as Lowis F a r r a ~ a nand his folbwers.'"
Whether there wodd be signilcicmt disparate h p a c t 01.1 minorities is im-
possible to deteminc. in the abse~~ce of actual experience with hate speech
laws in. the contempora~~ Unikd States. My guess is that under current
conditiolls them would be some but not widespread discrirninatory appli-
cafhion. If, however, black activism such as that Mrhich occurred in the 1960s
were ever agilin to scare or enrage the wt-rite majority, the possibility of
w i d e s p ~ a ddiscriminatory applicatim would be mom likely
The potential of hate speech laws tru be discrirninatoray applied against
mi,norilies reveals a contracfietion in the radicd th.eoristsfposition. If their
premise is that society is so profclundiy racist that even apparently neu-
tral free speech mles are deeply biased against minorities, is &re not at
least as much rc;.ason to believe that the legislatures that draft the hate
spee'h laws and the prosecutors, juaes, and juries that apply them will
similarly discrfminak again.; t mh~ori ties?""
Athough careful drafting and sensible administration might minirnize
misapplication, chilling effect, and discriminatory application of hate
speech laws, these problems will be much harder to contain with regard
to laws bamirrg sexually graphic expression demeankg to women. Tl-tere
is little agrttement, even among femi~~ists, as to which sexually oriented
depictio~~s are demeaning to women." A recent book by Madine Strossen
includes illustrations of a number of works of art: that some feminists
have praised as kpicting woxnen in a positive light or for making a pro-
feminist political point. Other kminists, however, hawe c o d e m e d these
s m e jmages as demeaning pornography." "ro~sen also notes the follow-
ing pamages from a 1987novel:
She is lean and tough, She fucks like a gang of boys. . . . She fucks everyone
eventually, with perfect simplicity and grace, She is a rough fuck. She grinds
her hips in. She tears arowd inside. . . . The first time she tore me apart, 1
bled and bled.
He tears into me, He bites my clitoris and bites it and bites it until 1 wish 1
was dead. He fucks-.He bites my clitoris more, over and over for hours.
. . . He leaves. X hurt so bad 1can? even crawl.
1 scratch, 1 bite, 1 tie him up, I hit him with my hand open, with my fist, with
belts: he gets hard. He dctes each thing back to me. . . . I ended up cclwering,
caged, catatonic.""'
Pzrls~rcrrz~a~c RACIST
O R ; G A N I Z A T XAND IDEAS
~RIS
The risk of prosecutorid misuse is a poter~tialcost that hate speecl-r and
pon~ographyhar~sshare. A possible cost unique to hate speech bans is
that psecdiolns will publicize racists anct the virulent ideas they es-
pouse. Whether prosecution of racist expression in the United States
would serve to spread this propaganda in such a way arr; to exacerbate its
alleged harm is a complex question, but experience in other countries as
well as here suggests that it might. For iizstance, in a recent Frmch pmse-
cutior~for Holocaust denial the defe1"tda"ttstakd that he Frztex~dedto re-
peat his views in court. Associations representing Holocaust survivors
requested that the court fosbid him from doing so and that the proceed-
ings be closed to the puklic. The court denied Lhis request, and at trial the
defendant maintaixled that the Holocaust had not occurred. He was con-
victed. a d ordered to pay a fine, which was suspended so long as he did
not cornmit this crime again within five yearsei"n the tlkl ""Attomeys-
General became ixlcreaskgly reluctmt to arzthonze prosecutions because
they feared that trials would provide platfoms for racists who, if con-
wicted, wouid claim martyrdom and, if acquitted, would claim vind-
i~iltion."~
In the tmited States, the Skokie controversy of the late 19"i"s under-
scoms how attempts to suppress racist e?ipression can rcsdt in giving
publicity to racist orgal7izatiolIs and ideas. Frank Coilin -and his small
band of neo-Nazis originally wanted, to demonstrate in a Chicago park
but were pmvented from doing so by a prohibitively cost%yjnsurmce R-
quircmcnt. Coflin then ar~~~ounced plans to march in Skokie, a Chicago
subtrrb kvith a large Jewish population, including many Holscatrst sur-
vivors, Skokie responded by passing m ordinance forbidding the dissem-
i n a t i o ~of~material that " p o w t e s and incites hatred against persoI7.s by
reason of their race, national angh, or religion," as well as a law requir-
ing applicants for parade yemits to obtain $350,000 in insu~mce.There
followed several rounds of highly publicized litigation; in the end the or-
dkmces (as well as an jnjunction against the march) were declared un-
constitutional." Having won t-he right to m r c h in Skokie, Collin t-hen can-
ceied plans to $o so. Instead, he held a small rally in a Chicago park,
relying on the Skakie litigation to invalidate the ixlsurance requirement
that had pmviously blocked this demorzst:ration.Collin explained that the
trhreatened Skohe march was "pure agitation to restore our right to free
speech.'"q:ln retrospect, some members of the Jewish community in
Chicago thought it would have been far better if Coltin had simply been
allwed to demon.itr;lte in tlte Cbicago park as plirrmed rather than for
his organization and ideas to have been given extensive publicity.
The Skokie incidcnt suggests that if the Supreme Court were ever to
dear the way for hate speech prosecutions in trhis county, these prosecu-
tions would attract exknsive ptrblic interest and media coverage,
Moreover, in some jurisdictions the tsials would likely be broadcast: on
televisio~~. (It is possible, bowever, that over time the puhlic's interest and
thus the media attention would wme, especially as these prosecut.ions be-
came commonplace.) As in the recent French case, the prosecutors in the
Wmited States would likely try to limit (jefenda~ts'opporhlnity to repeat
their calumnies in court. But given extensive rights of crimjnal defen-
dants in this country including the I-ight to testify on their own behalf, to
c r o s s - m i n e witnesses, ar~deven to repmsenl: Ifiemselves, such cor~tain-
ment may ofien prove difficult.
:In prowmtions for use of racial epithets or advocating that certain
groups be stripped of basic civil riets, deported, or su)3jected to violmlce,
it may be possible to keep the defendmt from ~ p e a t i n gthis expression in
court or defending its progriely. But in prosecutions far group defama-
tion based upon pseudoscimtific claims about the genetic inferiority of
certain ethnic or racial groups or far psetrdohistorical claims such as
Holocaust denial, disauowing the defendant from attempting to prove a
factual basis for these beliefs wodd be problmtic, tinder curre~ltFirst
Amendment doctrine, truth must be recognized as a defense in all
defamation actions based on statemem on matters of public concern.
Indeed, t-he burden is on the plaintiff (or p r w e w t i m h crhi~lialcases) to
prove that t-he defamatory statement is false.37
Of course, if doctrine were chmged to permit hate speech pmsecut-ions,
this rule could be altered as well.. Perhaps the eliuninatim of truth as a de-
fense in pseudoscience a ~ pseudohistory
d prosecutions could he justified
by conceiving of the essence of the affense not as spreading false facts but
as making hateful statements about a group of people, Cmstitutional lim-
itatio~lsaside, h w v e r , there is still something troubling about charging
peoy,l.e with a crime of spreading mali,cicrus falsehoods imd then forbid-
ding them to prove that the statements were true. For one, it gives t%ie ap-
pearance that the government is afraid of examinir~gthe truth. At a mini-
mum, it will gave racist organizations ammunition to make just this
charge. And even if defendants can be kept from using the courtroom as a
platform for reiterating their racist viczws, they can still publicize these
views in media interviews outside the courtroom.
Law does, however, have an ifnportant teaching function. It is possible,
trhereforc, that: racist ideas expressed in fhe co~~text of a crimillal prosmu-
tion will not be nearly as persuasive or damaging as racist speech in the
speaker% scorner of the park or in a book or pamphlet, especially if defen-
dants are cox~victedand led away in handcuffs, But what if they are ac-
quitted? Even if acquittals bvere for purely tect7nical ~ a s o n ssome, arc.
likely to see this outcome as a vindication of the defendants' views.
Cedainly racists will urge the public to view every acvittal in such a
light. And even convictions carry certah dangers. Racists convicted of
hate speech are likly to paint themselves and to be viewed by others (not
all of wham are racists) at; free speech mmal-tyrs." In this =gad there has
been a tendency to romanticize the high-ranking members of the
.American C o m u n i s t llarty convicted in the 1950s Smith Act prosecu-
tions as free speech champions rather than as the hal-d-1ir"teStalinists they
actually bvere.
:In the final malysis, hate speech prosecutjons run the very real risk of
creating some of the dangers that hate speech laws are memt to p ~ v m t
by givhg publicity to racist organizations they could not purchase at m y
price. If I am correct that at present hate speech is neither particdarly
prevale~~t nor influential, it would he a sad irmy if hate speech laws gen-
eratecf large-scale interest in material that would be largely ignored if
simply left alone. As is the case with so many of the possi:ble effects of
hate speech legislation, there. is no way to predict with certainty the lfkeli-
h o d and the magnitztde of this potentid cost. But zzncvittingly giving
hard-core racists a far greater audience than they could ever hope to reach
in the absence of such prosecutio~~s is a potential cost that arxyone favor-
ing broad hate speech restrictions should seriously consider.
Even on the assumptio~~ that hate speech and porz~ograpt-ry cause harm, it
it; posible that this expression has certain be~~eficial aspects as well that
would be negated by its suppression. Strassen claims &at pornography
can convey a message of sexual egalitarianism (women like sex, too, and
should initiate it); is used to treat sexual tlysfunction and paraphilias; pro-
vides a way for couples to spiee up their sex tives; and offers m important
source of infornation about sex, including "information about women's
bodies and techniques for facilitatillg female sexual pleasure, which is
otherwise sadly lacking in our Similarly, Kathleen Sujlivan ar-
p e s that pornography can promote worneds sexual liberation: "[Ilf so-
cial corwex~tior~,hacked by religion and law, confines sclxuality to the het-
erosexzral, monogamous, marital, familial, and reproductive, then the
ambisexual, promiscuous, adulterousl selfish, and gratification-centertrd
world of ponloqaphy is a charter of sexual revolution that is pote~~tially
liberathg rather than confinkg for women."""It is also relevmt that rnmy
people seem to derive pleasure from this commodity as is shown bp the
billions of dollars a year that Americans s p e d on pornography.
Supporters of pornography bans such as the civil rights model drafted
by MacKinnon and Dworkh might argue that most if not all of pornogra-
phy"s benefits could be produced by sexually graphimaerial altf-ttis not
demeaning to women and does not show women in subordirrate posi-
tions, But ""dmeankg" and ""shardinate" are extreme@ mcertaisl and
subjeciiwe tenns. As Nitn I-iunter; a feminist lawyer who opposed the
hdianapolis ordinmce, has observed: '*[I]f a w m m [in a pornographic
workj says to a m,'fuck me,'& that begging, or is it demanding? Is she
su:bmitthg, of is she in control?"" h y law that defines pornography in
terms of wherher it is demeaning to women or depiets w m e n in subordi-
nate positims is certain to cast a pall on the production and distribution
of all scxually explicit material and thus inferfe1-e with any benefit this
matcrial may prodwe.
Anottaer claim sometimes made by opponents of hate speech restric-
trions is that racist spec& and pornography provide a safety valve by
which potentially violent racists blow off steam rather than commit via-
lent acts. Removing this outlet through suppression of hate speech and
pornography they say, might actually increase violence against minori-
ties m$ wornen. Similarly it bits been argued that pornography c m be a
catharsis for Ilnen who wodd otherwise engage in sexual violence. As it
relates to hate speech, I fir7d the "safety valve" theory particulirrly unper-
suasive*It strikes me as implausible that racists would turn to violence
e arc. denied the right publicly to proclaim. their ideas. Et is
just b ~ a u s they
possibIe, of course, that any giwn racist might be driven to violence be-
cause he m y no longer legafly pubtish his progagm~da,M a t is w~likely
is that this would be a c o r n o n rclaction. The cauws of violence are mmy
and to a large extent unfathomable; hate speech restrictions, however,
would not seem to be among With to pornography, some
have clrtjmed that use of pornography may be an 0uelt.t fos people who
would otherwise engage in sex crimes." But recent studies suggest that if
anything, pornography demear.ling to worn17 causes rather than pre-
vent S sexual violence.44
A rtrlated claim is that prcvmting racists from publicly exprewhg their
views will give us all a false sense of security that wirulent racism no
longer exists. At first this objection may seem far-fetched, But what makes
it plausible is the remarkawe tendency of some Americans to deny the ex-
it;te~~ceof racim in this country. Such denial is a result of i g m r a ~ c eor
sometimes even the denier" own racist tendencies,.Whatever the reason,
racist expression as part of public discourse sewes as a =minder that vir-
ulent racism has not yet gone the way of smallpox. But since hate speech
laws are trnlikely entirely to eradicate hate speech in this country and
since m y attempt to do so wouid generate a lot of publicity about (and
for) racist orgal7izatior1s, there is little reason to fear that racist expression
would as a result of these laws become unavailable as proof that racism
still exists.
Finally, the following possible benefits of hate speech shouid be consid-
ered: Although racist prapagmda mostly contains scurrilous lies, it may,
in Mill's words, "contain a portion of the tnrth.'%nd even i f we are cer-
tain trhat this is not the case, the prr;lsence of higGtly inflammatory racist
speech in. public discourse may prevent the ideals of equality that it at-
tacks from becoming dead dogma.
the experience of both ccluntries is that the existence- of incitement taws has
distracted attention away from the need to enact legislation which a d d ~ s s e s
root causes ctf discrirninatictn, In Israel, a bill tct extend the law which pro-
hibits discrimination in employment and public services on the basis of sex
to discrimination on national, ethnic, and religious grounds has languished
in the b e s s e t for years. in Britain, members of minority groups rernah woe-
fully underrepresented in gc~vernment,the judiciary, the professions, and in
crucial government departments such a s the police. This situation prompted
one of the four minoriq members of the 650-member House of Commons in
1988 to comment that racist behavior is more socially acceptable in the UK
than in the US.'@
Whether or not we have made greater strides than has BriZah in eradi-
catht; racism, there is still obviously a lot of work to be done in the
Wznited States. A disproportionate numbrr of w o m n and mhorities in
this country live in. poverty, and the highest jabs in. hdustry and govern-
ment are still primarily held by white males, Racial violence still plagues
us, and violence agair~stwomen, in the form of both domestic violence
and rape, is epidemic. Even if hate speech and pornography contribute to
these ills, few believe that they are the root causes*Thus it is rare t-o find
veteran civil rights liiigators or worner1 who have spent Lheir lives bat-
tLing for gender equaitity in this country calling for broad bans on hate
speech and pornography. They know that this is not the real battle-
ground.
But if distract-ion from mare impartmt work is passible, it is not in-
evitable. For one, hate speech and pornography legislation and civil
rights legisl&ion addressing root problems are not mutually exclusive
med dies.. fndeed, on the surface at least they appear mutually rc.&Eorc.ing
in that enachnent of one will spur intemst in the other. Mortrovel~, the civil
rights communiv in this country is wise enough to keep its eyes on the
prize and not stray from working for solut.jons that will address core is-
sues. The danger, however, is that the white male establishment might
prefer to enact some cosmetic remedy rather than a d d ~ s root
s prcrblems.
Let us begin with a rationde based squarely or1 the harm that such ex-
pression is alleged to cause. As we have sem, a lor~g-"tanding argument
for suppresSiRg racist speech is that hateful statements about mjl-toriljes
will tend to lead others to view them as inferior or loathsome, which in
turn might cause those so persuaded to commit illegal discrimi~~atory
acts. 326s rationale does not reqtrise that the speech in question expressly
advocate such conduct nor proof that this expression will in fact lead to
law viofatiol~or other ma~ifestinjury. It is suificient that t-he "natural ten-
dency m d reasonabty pmbable effect" is to cause such kanx.This is the
"hamful tendency" approach to speech regulation that was in effect in
trhe early years of the tvvex~tietbcex~tury.~
Under this approach, rousing de-
nunciations of U.S. involvement in World War 1 were punished for their
likely interfermce with the war effort, The verdict of hishory; however, is
that such a prhciple for speech suppression disserved democracy in gen-
eral m d progressive causes In particular*
Conscious of the defects of the harmful-tendency approach to speech
protectior~,the Warren Court, the most progressive Court in this x%atianfs
history, discarded it, Rerdivhg this discredited approach might well im-
pose a significant cost on all speech that challenged the status quo, includ-
ing expressim that progressives hold dear. A principled applicatio~~ of this
rationde would allow the suppression of any speech that m?ight:pmsuade
people to break the law or to infiict some pa2pable injury on anothel: For
insta~ce,under this principle a movie &picting loving homosexual rda-
lionships could be suppressed on the grounds that it might lead people ta
commit illegal acts of sodomy. Or if abortjon were ever to lose its constitu-
tional protectio~~ and again be prohibited in some staks, a book celebrat-
ixlg women's repmductive choice could similarly be b
Unlike racist propagmd". sexually graphi" material desiped primal.-
ily to arouse is not so centratly cor~nectedto pubtic discourse. Later in this
chapter, 1 discuss in. detail the argument that because pornography does
not a p p a l to our "deliberative capacities," it should be excluded from the
highfy protected mafm of public discourse and suppressed merely on the
possibility that it may lead to violence or other discriminatory harms to
woxnen. Suffice it here to say that although pornography may not be core
politic& speech, it nonefheless has been argued, even by some who sup-
port the suppression of pornography; that pornography is ""part of the
discourse by which the public understands itself and the world it con-
fmts.'"' And whether or not porl~ographyshould he cmsidered public
discourse, reserving rigorous constitutional. protection only for speech
that expressly appeals to our "ddeliberative capacities" mand allowing ail
other expression to he fohidden merely or7 a showir~gof a "hamful tell-
dency" woutd leave most art vulnerabie to supp~ssion,
Racfical critics o&enbeljttle as "'slippery slope" arguments Ihose such as
I have just made against the harmfu.1-tendency rationale." aagrce that
"s1ipp"'y slope'hrguments al.e not particarly persuasive, if what is
meant by that term are argwents claimjng that if government is permjt-
ted to replate in a certain area, it will contiz~ueto do so until that area is
pervaded with oppressiw ~ g d a t i o n sA. classic example of this sort oE ar-
gt~memtis the National Rifte Association's position that any prohibifion of
weapm ownership (including automatic weapons a d armor-piercing
bullets) will lead to the h a v ~ h gof at1 guns, induding huntir~grifles. And
"'slippery slope" arguments do abound in the First Amendment arma,
such as the commonly voiced objection Bat regulations such as the V chip,
which allows parent"^ block out viole2"tt a"td sexuaify graphir television
programs, will lead to governmmt censorship of core political speech."
But my objection to the hardul-tendency rationale is in fact quite cjif-
fere2"ttfrom such a "'slippery slope" argument. The objection is not that
hate speech restrictions will inevitably lead to restrictions on prohamo-
sexual speech (although this would be a real dmger, particular@ in cer-
w~ities)but that the breadfF~of the hamful-te~~dernicy ratiox~ale
is such that if courts were to apply it in a principled mamer they would
have to uphold suppression of prohomosexual speech, as weIX as any
other cxprcssim that has a knde2"tcy to kad to hvhJ violation. Although
legislation often is a product of compromise and expediency; constitu-
tional acdjudicatim should be based on prhciple. As the Supreme Court
recently emphasized, "[Llegislakres may draw lines which appear arbi-
trary kvithout the necesSjfy d offering a justification. But courLs may not.
We must justify the lines we draw""'"'
A major challenge to those who support bans on hate speech and
pornography dememhg to women is finding a rationale for the suppres-
sion of this speech that can be applied in a principled, fashion in f u t u . ~
cases that will not dilute the s t m ~ ~ protectbn
g cur~l7tlyafforded speech
that denounces the status quo. 0 1 course, mmy radical critics claim that
this protection is not particularly useful to advancing the interests of
women, minorities, and other less powerM groups. h their view, even an
across-fie-board weakenhg of this pmtectian would be no great toss. But
if :I am right that these critics sorely undemstirnate the pmtection modem
doctrine provides to those agitating for progressive social =form, then
weakening this protectiom mi&t isnpose signifcant costs.
COMBATING EFFECT
T H E SILENCEME
A recently minted rationale for suppressing hate speech and pornogra-
phy posits that hate speech silences mhorities and pornography silences
women, according to Fiss, a distinct advantage of the silenchg aqument
over other justificatiox~for prohibiting hate speech and pornography is
that the state is not '*us[hg] its pokver to skew debate in order to advance
particular outcmes" but is merely making sure that "aalf sides are
heard.'"TThus rather thm compromising core free speech values "'by try-
ing to control the peaple" choice among campetkg viewpohts by favor-
ing or disfavofing one side in a debatc,'"the state is instead promotinf:
these values by "acting as a fair-minded parliamentarian, devoted to hav-
ing all views presented."12
At first blush it may seem as if Fiss has f o u ~ ~adrationale for s u p p ~ s s -
inghate speech and pomgraphy that will actudly promote, not compm-
mi,se, core free speech values. Carcl.fU1allalysis, however, shows that the
promise is not fulfilled, First, it is important to note that Fiss is not argu-
ing that hate speech or pornography litemlly sileslces minorities and
women Ifimugh its power to intimidak, as might well be the case with
personally directed hate speech (e.g., a burning cross placed on a black
family" lawn) or perhaps even with personally d i ~ c t e dpornography.
Rather; he argues that kate speech deprives the victimsf words of ""au-
thority," making it "'us fhougtt they said nothing," and that pmogragby
"impairs [women's] credihi1il-y.'' But pornogaphy and hate speech can
hawe such ill effects only though their power to p e ~ u a d eothers to see
women and mkorities in some demeaned status, such as sex objects or
secoxzd-class citizens." As Fiss cognizes elsewhere$regulations that are
justified in krms of their power to inffuence people on how to see the
world are contrary to core First endment values;.'*"The saencing ratio-
nale, therefore, does not avoid implicating basic free speech values.
Nor is the rationale a narrow one, Although it is conceivable that hate
speech and pmography discowage minorities ancf womcn from partici-
pating in public debate, it is just as likely that strong condemnations of
racism and sexism discourage people from airing views that am in fact
neither racist nor sexist but might be misunderstood as such, or that the
widespread conde ation of drug use silences people frown pronouncing
dissenti~~g opjnions on this subject, or that harsh professimal criticisms
may stifle scientists or physicians from expressing novel ideas (a few of
which may even be usefut).15I do not mean to suggest that it is always a
bad thing for s m n g negative reaction to ihjbit speech. That the expres-
sion of racist m d sexist views is no longer socidly acceptable is decidediy
to the good. More generally, that s m e perspectives drive others frown the
marketplace of ideas is part of the inevitable winnowing process by
which p"hlic opinion is formed.'Wy point here is that all,owing th.e sup-
pression of speech just becatrse it tends to ""silence" other expression is a
rationale that if applied in a princiglcd way has the potential to dilute the
rcrbust nature of puhlic discourse.
But it is not just that the harmful-kndency; psychic-kjury; and silenc-
ing rationales afe extremely broad; their application necessafily calls for
extremely subjectke judgmmts. As a result, use of these rationale?;will
invite prosecutors, judges, and juries selectively to punish those who ad-
vocate unpopuiiar viewpoints, On an even more pragmatic level, because
these rationales are so broad and subjective, there is na chance the
Supreme Court will, adopt them or even that many who cvodd like to see
hate speech bmned will support them.
Mlith respect to hate speech bans, my firmest conclusio~~ it; that lrhe stakes
arc not nearly so high as many of the propona~tsand oppone~~ts of such
bans claim. If there werr? strong reasons to believe that racist propagan&
is a major cause of violenre and discrimination against minorities in this
country, and if modifying doctrine to permit Lhu suppression of this
speech w o d d likely have a disastrous effect on free speech, we might
have to make some hard choices, Forkrnately, we are not faced with such
a dilemma. Ihere is no evide~~ce that outlawing hate speech will sigx~ifi-
cmtly reduce violence m d discrimhation agaixrst minorities. hdeed, it is
doubtful that hard-core racist proyaganda sipificantly contributes to the
formation or perpehation of racist beliefs in this country. I h e primary re-
sponsibility for such beljefs lies with much more subtle inRuences, such
as attitudes transmitted from parent to child. Making it even more un-
likely that racist propaf~andais a primary cause of racial discrimination
or racist beliefs is that until relatively recently this material has not been
widely available. The Enternet, however, has made racist speech more ac-
cessible. Aithough this development is troub1irr.g a ~ should
d be carefully
monitored, there is as yet no evidence that it has led to a marked rise inei-
ther racial discrimination or beliefs.
By the same token, there is no reasox1 to believe that the enactme~~t of
hate speech laws or the modification of free speech doctrine to allow for
such a ban would have a catastrophic effect on frce speech in this country.
Wth sensible drafthg and proper vigilance by the courts, misapplication
and selective d o r c e m c n t of hate speech bans could be minimized,
thereby limiting (though not eliminating) the chilllng effect on nonracist
speech. Moreover, there are arguably principled rationa'ies for upholdinf:
the cox~stihttiona[ityof such laws, suck as the exclusio~~ of speech that ad-
vocates illegal conduct, breaches civility norms, or advocates changes in-
ivnical to a democracy Precisely what the cost to free speech would be if
any or all of these broad rationaies for speech suppression were adopted
is difficult to say. My best guess is that there would be considerable
dmpening of public discourse but that the n e g a h e consequences would
not be mox~ume~~tal.
Even if the First Amendment kvere repealed, traditions of free speech
are sufficimtly strong in this country that legislatures would generally
( t h o q h not always) respect core free speech vdues. Still, unlike Lhose in
some other democracies, Americans have come to rely on judicial protec-
tion of free speech. Any sudden gutting of this protection could have a
significant negative effect on puhlic discourse. For this reason, if the
Court were ever to uphold a b m on racist propaganda, it might bveX1 in-
voke a much narrower rationale than the ones suggested above, a ratio-
nale with thc? patina of plinciple but that could not withstand critical ex-
mination. Such an unprincipled decision, though harmfd to both, free
spee'h d o c t h e and the CourVs authosity to some kdetclminak extent,
would not be disastrous for either.
With respect to por~~ography the stakes may be somewhat higher. There
is some evidence that violent pornography and perhaps other types of
porz~ographyas well cause violence and discrimhation ag"in" women.
h d unlike hate speech, pornography is extremely prevalent in. this soci-
ety. On the present statc of the evidence, however, it cannot be confidentSy
cmcluded that ponlography is a significant cause of violer~ceor discrimi-
nation against women or that bamirrg pornography will significmtly re-
duce this harm, In addi.tion, any ban on sexually grvhic material nohbly
broader than the one permitted under curwnt &scenity doc&ine is likely
to ~ i b iartistic
t expression as we11 as political discourse.
W E I G H I N GT H E C ~ SA T
N D~BENEFITS O F BANS 185
A much more certain benefit from baming hate speech and pmogra-
phy would be prevent% insult to minorities and women inRicted by this
expression and reassuring them that government does not share the hate-
ful or &earring views portraped in this material, Altl-tough not nearly
as competling as preventing violence and discrimination, ihese interests
are nonetheless important. They can, however, be achieved by means
other than speech supprrsion.
In an interesting waF the arguments for the repression of hate speech and
pornography are similar to the argulnents for the &ath penalty. In both
debates the a r p m e ~ ~aret s oftell stated ~ I Iharm-based, utilitarian terms,
with the proponents drawing on dubious or incanclusive statistical
analyses or scientific studies, Just as many proponents of the death
penalty will htch 017 to any evide~~ce showing that it is a greater d e t e r ~ n t
ta mtrrder than life imprisonment, so, too, many proponents of hate
spee'h altd pomogmphy bans are convinced on very thin evidence that
hate speech a ~ pornography
d are a sipificant caux of violence and dis-
crimination against w m e n . Most people cvho me strollgly in h a r of the
death penalty will admit, however, that even if it could be shown with
certainty that capital pu~~ist-rment is not a more effective deterrel~t&an
life imprisonment, they would still favor execution of murderers. They
will argue that deterrence aside, killers of imocent people should he put
to death because they deserve to die.
I suggest that something similar may underlie at least some of the argu-
ments for hmning hate speech m d pornography Even if it could be con-
ciusively pmw"dat hate speech and pornography were not a cause of
violence and discrimbation agahst mhorities and women, 1suspect that
many proponents of such bans would still favor suppression because
they believe that this eqression is profou~~dly offensive to any moral
view of humanity. Thjs moral view emrges at the end ol Matsuda's argu-
ment for the suppsession of hate speech when she wriks that racist pro-
paganda shoutd be banned "not because it isn't really speeCt-r,not because
it falls w i t h a hoped-for neut-ral exception, but because it is wrong.";"
A nonutilitaian moral vision may sirnila* lurk in some a%umc.nf;s
agailzst broad hate speech ancf porl~ogragltybans. Although many who
v p o w such bms argt~ethat they would have disastrmus consepences
for the democratic nabre of our institutions, these clai~xsare hard. to sup-
port. I suspect that if it could be shown that hate speech a ~ pomography
d
bans wodd not in fact l e d to any significant impajrmertt of free speech,
W E I G H I N GT H E C ~ SA T
N D~BENEFITS O F BANS 187
many opponents of such bans would still oppose their enactment, Mmy
who argue agahst hate speech and porr~ographybans m y 110t be con-
scious of some deeper opposition. Ronald Dworkm, however, c a p t w s
this view when he argues that government insdts us when it suppresses
speech out of fear that it may persuade peopie to see the world i r ~a way
that the authorities find dangerous or o f k n s i ~ e , ~
At its deepest :level, then, the ariguments both. for and agajnst suppress-
ing hate speech a r ~ dpon~ographymay have less to do with preventing
hann, either to women m d m,inorities or to free speech and democracy,
than with p ~ v e n t i n ginsult to human dipity. At bottom, the hate speech
and pornography conlroversy may pose the vestion whether it is better
for minorities and women to be insulted by demear~ingimages of them or
for all of us to be insulted by the government" decidhg the proper way
for us to perceive the world. This may explain why those who tend to see
political issues in stark moral terns tend to have intractable views on
hate speech and pornography bans. Xiadicals who rtrfiexively support al-
most m y measure that seems to actvilme racial and gender equality, even
ii only symbolically, passionately support hate speech and pomography
bans. In contrast, libertarians who see m y restriction on libert-y as anath-
ema are unalterably oppmed to such bans. Liberals who have strmg
commitme~~ts to both liberty and equitlity, however, find the choice m m
difficult and will tend to rely on ixlstmmental assessments to resolve the
issue?.
Although deep-seated moral reactio~~s to proposals to ban hate speech
and pornography may be in play mare than we recognize, the practical
consequences of such proposals, for mhorities and women as weil as for
free speech doctrine, remain crucial. Dffiicuit though it may be, it is im-
portant to try to make these empirical assessments as free as possible
from the distorting Muence of deeply held pmconceptions.
S U M M A RAY
ND C~PISCLUSXON
On the one hand, it is mlikely that broad hate speech m d pornography
bans and the modi.fication of free speech doctrine that these barn woutd
entail would, have disastrous conseyuences for free speech, On the other
hand, such devbpments would likely impair the vitality ar~drobustness
of public dscourse to s m e cortsiderable extent. Tle danger is tcvofold.
.Any broad ban of hate speech would likely deter nonracist political corn-
mentary, just as a hroad ban on pomgraphy wodd inevitably chill the
production of serious art and literature dealing with sexual matters.
Second, it is di&cult to conceive of a principled rationale for such sup-
pressio~~that would not also diminish the ~o~'~stitutiona1 protection that
experience has shown is necessay to robust public discourse. There thus
would likely he sobering costs involved in suppressing hate speech and
pomgraphy
Can the other side of the ledges, the most ilnportant benefits that ban-
rring hate speech and pornography might produce are extremely specula-
tive. Because proof of Che relatio~~ship between these forms of speech and
violence or illegal discrimbation agahst women and minorities is sparse,
there is no guarmtee that a ban would alleviate these harms. The more
certain benefits, suCh as reassuring mhorities and w m e n that neither the
government nor the majority of Americans share the distorkd and offen-
sive worldview portrayed in these materials, can be accomplished by
meam other than speech rep~ssion.
On the p ~ s e n state
t of the evidence, therefore, the better course ~IImy
view is to combat the harms that hate speech and pornography might
cause through means other than speech repression. I f future studies
demonstrate with more certain@ that certaill types of pomgraplty are a
sjgnificant cause of sexual violence or discrimination, then modifying
doctrine to allow for the s u p p ~ s s i o nof this speech might be justified..
Similarly, if hate speech were to proliferak, ar~dit could be demonstrated
that this expression was contributing to hcreased violence or discrirnha-
tion agahst minorities, l: would reevaluate this conclusim.
although I have confidence in rrty positio~~ that currmt doch.he's re-
hsal to allow broad bans on hate speech m d pornography is on our pre-
sent state of knowledge comct as a matter of policy, it bears repeating
that my ultimak purpose is not to con\.ince f i e reader of this result.
Rather, my primary aim is to provide the background for people to reach
their own conclusions about this perennial problem of social policy.
It is true, of course, that r/vhetht-,r to modify doctrhe to permit broad
hate speech m d pornography bms is the prerogative of the U.S. Supreme
Court. Thus to some extent discussion about these issues is, as they say,
academic. But more than mig:ht he supposed, Supreme Court decisions
tend to ~ R e cthet basic beliefs of the Arncrican people. It is incnnceivilble,
for hstance, that in the clhate of the 1950s the Court would have found a
co~~stitutional right to abortion or held that the Virginia :Military Institute
had to adnnit women. Public a t t h d e s toward free speech in general and
its relation to hate speech and pornography in particular could well inthe
long r u r ~have an effect 01%social policy, including Supreme Cowt doc-
trine. In m y event, our current system of free speech invites debate on dt
matters of public concern, m o n g them the controversies about the limits
of free speech.
Public debate on important issues such as aborthn, affjmative action,
and presidential impeachment increasingly resembles professionat
wresthg more than ratiox-ral discourse -among citizens. Such 110-holds-
barred screaming matches, marked by invective, distortions, and even
outright lies, are no doubt the product of the mass media" concern for
ratkgs and audience share rather thar~for intellectual cox~te~~t. Perhaps
this unfortunate state of affairs is also partly due to the mistaken belief
that the best way to offer a balanced presentation is to encourage two
people with views on opposite eirremes to fight it out. It is regrettable
enough, although perhaps trnderstandable, that poptrlar debate has
tended to degenerate in this way More troubling m d less understandable
it; that academic discussion is often m r k e d by the s m e defects.
In the early 3,990s, 1 atkncded a free speech cronferenc-e at a large mid-
western university. On a panel with me was a welt-hown radical critic
who claimed that contrary to popuiar belief, free speech is useless to op-
pressed minorities, as is shown by the S~lprefneCourt's sinvariably con-
struing the First Amendment against civil rights protesters. On another
panel a speaker took the position that free speech doctrine did not dlow
the prevention of racially or sexually harassing speech in. the workplace.
At about the same time as this conference, I was doing research for an ar-
ticle on hate spec& regulation on campus. I was dismayed with how
much particip&s on both sides of the debate distorted facts to support
their position. For instarrce, in a law review article attacking campus
codes, Congressman Henry Hyde alleged that "at UCLA, the editor of
the student ncwspapewwas suspended"' for running a cartom critical of
affimative action.' 11%fact, the sttrdex~twas not suspended from the uni-
versity, as Hycie implied, but was suspe~~ded from the newspaper by a
student-run communications board.' Similarly, in an article arguing in
favor of c m p u s hate speech codes, Ricbard Delgado misleadingy rc-
comts an incident in which he claims a fraternity held a '"slave auctiod"
in which the pledges wore "black face-paint and Afro wigs-"q~nfact, the
blackface and wigs were part of a skit in which pledges lip-synched
Jackson Five s o q s and imitated Oprah Whfrey; t-his ~ g a l i ahad : nothing
to do with the "'slave atrc"conMtheme of a fund-raiser in which people
bid for the seniices of a pledge.
Over ihe years, the vality of discourse about hate speech and pomog-
raphy regtrlation has continued to deteriorate. The distortions persist,
and the discussion has often taken on an ad horninern v a l i t ~ such as the
charge that opposition to hate speech and pornography bans stems from
a desire to keep minhties and women '"in their place," or the charge
made by a colleague of mjne that the purpose of hate speech codes on col-
lege campuses is to stifle crit.icism of univcrsit\i affimalive action poli-
cies. In this book I have tried to cor~trihutea degrt?e of moderation to this
polarized debate, in the hope of providhg the reader with a mare bal-
anced perspective m this diJficult issue. li,this end, I have shown that
ma17y of the extrem Charges that radicals have leveled against free
speech doctrine cannot be substmtiated. Particularly trnsupportable,
though repeatedly alfged, is the charge that free speech dockine is dis-
crkinatory because it prever~tsfar-rmcbing hate speect-r rewlation m d
baming of pornography demeaning to women while per~xittiingspeech
regulations that serve the interests of the rich and powerhl. As we have
seen, free speech doctt.ir.~edoes not allow any wiewpc,int-based restriction
on public discourse, no matter whose iXlte~stit may serve. But the radi-
cals are correct when they emphasize that free speech doctrine is not neu-
trraf in any deep sense. Although it supplies an important check on the
majority's p w e r , free speech dockhe does not operate outside the legal
system but as an inttzgral part of it. As such, this d o c t h e will to some de-
gree reflect the iegd system's basic norms, including capitdism. As a re-
sult, the wedthy, which irt this society dispropo"imat").Y irtclude white
males, will have more access to the marketplace of ideas, h d to an even
greata degree, the speech itself (as opposed to fhe docbfne) will tend tru
~ f l e cmajority
t enlinnmt, including lingefillg racist and sexist \"ews.
'
TThe queskim whether broad hate speech and pomogmphy stricti ions
arc good sociat policy is a difficult issue about which reasonable people
c m difkr. My own view is that in the United States at this time such re-
strictions would on balmce be inimical to continued social progress, in-
ciuding increased race and gender ewality. As I hitwe said, however, my
prisnary purpose here is not to persude others of this position. It is in-
stead to dernmstrate that the right answer to this complex question can-
not- be derived from slogans or prcronception"hut must be detemined
through careful analysis..
Science Meets Ideology
In contrast tct the dearth of scientific research on the harm caused by hate speech, re-
cent studies have focused cm the question of whether pornography leads to acts ~ I I
aggression and violence toward women. There have, however, been a number of
conflicting claims about what these studies show. For instance, in the mid-1980s the
Attorney General's Commission on Pornography found that ""the available evi-
dence strc~nglysupports the hypothesis that substantial exposure to wxually violent
materials . . . bears a causal relatic~mhiptt3 antisocial acts of sexual vicllence and, for
some subgroups, possibly to unlawful acts ctf sexual violence,'" h contrast, the
American Civil Liberties Unicln claims that the ct3mmissicln "wildIy overstates" the
""tentative results ctf a limited number" of studies.: A c a d e ~ c debating
s the wisdom
and constituti<~nality of banning pornography make similarly disparate claims.
Socictlogist Diana Russell refers to the "'very strong evidencef9hal pornography
causes harm, whereas philcjsopher Rclnald Dworkin asserts that "no respectable
study or evidence has shown any causaI link between pcpornography and actual vio-
lence."qn Chapter 7 1 concluded that like so many of the claims about hate speech
and pornography and the regulation of this material, the truth lies somewhere in
bel-ween: Although there is some evidence that violent pctmography (and perhaps
"demeaning" "pornography as well) c a m s vicllence against women, the evidence is
far from conclusive. X n this Appendix T discuss ircl detail both the claims made about
these studies and what these studies actually show.
OF THE REPORT
CRITICISMS
OF THE ATTBRMEYGENERAL'S COMM~SS~BIV
The report, including its findings about harm, has been widely criticized. The
most thorough critique is a point-by-point rebuttal prepared by the American
Civil Liberties Union, hltlrtiitzg the Celzsol"sh?'yDebate: A Szimlmry a~zdCritiqamf tlze
Firra? Report of tile Attonley General2 Commission or2 Pctnzogmplzy." "Thsi critique
charges that rather than clarifying the issues, the cornmissicm%report has ""pl-
luted tl-te debate over sexually explicit materials" byby, among other things, "extrap-
ofatling] frorn a few modest social science experiments a theory of causaticm of
sexual violence from certain kinds of pornography."" Accclrding to the ACLU, the
cc3mmission3 repart "launches a national crusade agahst dirty pictures" by rec-
ommending "a panorama of uncomti tutional prspasats. """'
The ACLZT" rebuttal begins with an attack on the mission of the cornmission, its
cc3mposition, and the mamer in which it conducted its hearings. First, t11e ACLU
takes issue with a major presupposition of the cornmission% mandate-that
pornography is a problem that needs tt3 be curtailed. The ACLU notes that a prin-
cipal charge of the commission was to make specific rec~>mmendations a>ncerning
"more effectiveways in which the spread of pornography couXd be contained, am-
sistent with constitutional guarantees." The ACLU charges that this mandate cur-
tailed inquiry into the ""possible values of permitting the tmfettered distribution of
sexually expiitlit material."""INext, the ACLU challenges the makeup of the com-
mission, claiming that the members "were carefully selected to insure" an clutcome
that would support increased governmental efforts to suppress pornography.
According to the ACL,U, six members of the eleven-person commission, including
its chairman, had previously ""supported anti-pornography effortsr;,"'and two oth-
ers ""hd staked ctut pctsitions'2llat would support limits on the distribution ctf sex-
ually expf icit material. Only three members ""had net clearly defined positiom" re-
garding the issues facing the commission, and " b b t a single person was
appointed to the Cornfission who was h o w n tct be skeptical about the evidence
l i d i n g pornography tct violence ctr tct be concerned about the First: Amendment
ixnpllisatiam of anti-gctrmgraphy In additicm, the ACLU complains
about lopsided witness lists, claidng that nearly 80 percent ctf the 208 witnesses
urged tighter controls of xxually explicit
The ACLU is particularly critical of the commission% &finingsabout the harm
caused by vitllent and degrading pornography. As an initial matter, tl-te ACLU
takes issue with the conclusion that violent pornography is ""F]ncreasingly, the
most prevalent form of pornography," a claim that the ACLU charges ""cnnot be
substantiated by any study at all."""4'To the contrary, the ACLU points tt3 a study
that shows a decrease in the sexual violence- depicted in Playboy during the fate
1970s and 1480s, as well as tc3 reports by producers of X-rated films that the level
of violence in such films has declined since the 1470s. Indeed, acctlrding to the
ACLU, a study conducted by the comrnissian on the April 1986 issues of the tt3p-
selling mainstream "%adult"magazines revealed so little violence (0.6 percent ctf
the total imagery) that the comrnission "covered up these results" by not citing
them in the final report. Tn addition, the ACLU faults the comrnission far includ-
ing sadrrrmasochistic material within the category of wxually viclfent pornography
when there is ""a whctle body of literature, some of it knctwn to the Corn-
missirsners, that suggests that much 'Slitilhctivity is both wholly conxnsual and
non-violent."6'
Turning tu the commissionk key conclusion that scientific evidence shows that
substantial exposure to sexually violent material causes sexual vicllence, the
ACLU claims that the commission "wildly overstates" "the ""tentative results of a
limited number" of studies." The ACLU emphasizes the ""highly artificial setting
ctf the laboratory7' and stresses that aggression in the laboratory "'is really only an
analogy to actual aggression," since it is ""allowed or enccluraged by an experi-
menter with the guarantee that no punishment will ensue (even if the college
students believed that they were actualfy shocking their partners, itself a dubi-
ctus proposition)." The ACtU also notes the possibility that the studies were in-
fected with ""experimenter demands," since a film that shows violence may lead
subjects "to assume that the experimenter apprclvcs of, or at least permits, vio-
lence in the context of the experiment.,'7n addition, the ACLU objects that ""un-
like the real world of ccrrllege males who are sexualty aroused," the experiments
did not give the subjects an ctpportunity to masturbate. Thus the ACLU ques-
tions whether "the turned-on males are pushing their shock buttons out of ag-
gression'hather than "out ctf unrecornpensed annoyance at arousal without re-
lief." Finallyt the ACLU maintains that both the aggression demonstrated in the
laboratctry as well as the rape-trial experiments revealing "'desensitization" &S
sexual violence "show clonly temporary alteration in attitude" m d not necessarily
any real-life effect."'
The ACLU winds up its assessment of the commission's conclusions about sci-
entific evidence in support of a link between sexually viclfent pornography and
violence to women by warning that ""EbJeforethe regulation of printed or visual
material can be justified by the kvidencekof science, the evidence should be both
clear and cornpelling.'Ta[tling the evidence upon which the commission relied
"contradictory'"'arnbiguous," m d of a sort from which causation could be only
""tentatively extrapolated," the ACLU concludes that it is far frrsm the type of evi-
dence that a>uldsupport regulation of speech.""
With respect to the commissian's findd-iings that harm similar to that said to be
linked with violent pornography is caused by nonviolent but degrading material,
the ACLU objects that "[~Jirtuallyno xientific study has been done on this class
ctf material isolated frrsrn other materials," Additionally the ACLU rejects the
ccrrmmission3 asserticm that degrading material is the "largely predominant prs-
pcjrtion" of commercial pcjmography, calling this claim ""bth unsubstantiated
and largely not open to analysis because the category is so vaguely defined.'"""
The ACLU does not quarrel with the ccrrmmissicm3 finddig (consistent with the
29170 commission%cclonclusion) that sexually explicit material that is neither vio-
lent nor degrading does not lead tc3 acts of sexual violence. It does, hhowevcr, chide
the commission for refusing to give such material ""alean bill of health," noting
the commission" cclncern that people wilt model sexual activity observed in the
material, that the "commercializatiun ctf sex"iis inherently wrong, and that the
material might fall into the hands of childrene7"
The most salient and pervasive objection filed by the ACLU, however, tran-
scends any particular criticism of t l ~ ecommission" use or interpretation of scien-
tific data, Rather, the ACLU objects that "[m]ost of the research discussed here
simply reaches the not surprising conclusion that exposure to particular ideas and
images, can, temporarily at least, change perceptions and attitudes," But the
ACLU points out, "ft]his is b~3ththe purpose and result of most speech, porno-
graphic or o t h e r ~ i s e . "The
~ ~ ACLU concludes its review of the commission's
chapter on the harm of pornography by warning that "Pjhe First Amendment
will be nullified if attitude-hifting bect3mes the basis for suppressing speech, or if
commmication is prohibited when it is effective in transferring its viewpoints to
its audien~e."'~
The ACLU is an advocacy group committed to protecting First Amendment
freedoms. 11 is to be expected that it wouXd look charily upon scientific findings
used to just;@ the continued and in some cases increased regulatirtn of sexually
explicit speech. Far more surprising and (on the surface, at least) devastating to
the commission%findings about harm is criticism from scientists on whose work
the commission relied. Even before the finaf report was published, Edward
Donnerstein denounced as ""bizarre" "the commission3 conclusion based on his
studies that violent pornography causes violence tctward women,77And soon after
the report was published, two other scientists whose work the commission cited,
Daniel Linz and Steven faenrud, joined Donnerstein in an article charging that
"many of [the commission's] recommendation are ina>ngruentwith the research
findings."74
These scientists level three main criticisms at the report. First, because much of
the stimulus material found to have harmful effects was R rated (e-g., slasher
films) and thus "would not be legally defined as ctbscene," they assert that it is
"ssomew ha t misf eading to consider them as evidence ftx the general condusitm
that "ornography?~ harmful," Accordingly, the commission%''ultimate fctcus ctn
"pornographybs a causal factor in sexually violent behavior" "tagether with its
recommedations for ""tighter legat cctntroi of pornography" i s '""somewhatmis-
placed.'"ather, ""[]c) remain true to the specific stimuli used by the experi-
menters and to the findings of their experiments," these researchers believe that
the commission should have focused more generally ""on the potentially harmful
effects of depictions of violence against women" wwhher or not they were sexu-
ally expli~lii-.~'
More centrally; Linz, R n r t ~ d and
, Dmnerstein criticize the cc3mmission3 ccon-
clusion that violent pornography leads tct violence against women, faulting the
cc3mmission for failing tt3 "exercise proper caution" in generalizing from results
showing that violent pornography causes aggression agaimt women in a labora-
tory setting to violent behavior outside the laboratory. The scientists had a num-
ber of ""criticismsconcerning external validity" applicable to laboratory experi-
ments on violence (some of which have already been mentioned in the summary
of the ACLU's rebuttal). Amtlng the criticisms were that laboratory subjects do
not perceive themselves as inflicting harm; sanctions against violence exist in the
outside world but not in the laboratory; subjects are drawn from a narrow popu-
lation base; the experimenters subtly influence subjects' behavior ("experimenter
demand effect"") and there is no "acceptable operational definition ctf aggressive
behavior.'";" Linz, Penrod, and Domerstein thus conclude that "artificial measures
ctf aggression'"roduced by the laboratory experiments ""prohibit direct extrapo-
lation of experimental findings to situatirjns outside the laboratory'hnd charge
the commission with being ""unable or perhaps unwilling tct acknowledge these
lid tat ion^,'"^
Finally, these experimenters dispute the commission% conclusion that studies
show that nonviolent but degrading material has effects similar to those ctf sexu-
ally violent material. Wi"ch respect tt3 these materials, they warn that the evidence
is not only "kntative" but "alsc:, very inctlnsistent," They claim that only one
study (Zillmam and Bryant) ft3und that long-term exposure to degrading mater-
ial innuences perceptions of rape victims and claim further that later studies have
failed tc:, replicate t h e e findings; that the commission ""sl ectively " ~ p o r t e dthe
results of this study by failing to acknowledge that although the study showed
that exposure to degrading pornography resulted in more callous beliefs about
rape, such exposure also resulted in a decrense in aggressive behavior; and that
only one study (Check"), an experiment with serious methodological flaws,
found an increase in subjects' reporting that they would force women to have
sex.-fi
What are we tr3 make of these conflicting claims about the experimentaj data con-
cerning the harm of pornography? More specifically, how are those of us without
a background in experimental psychology to assess the significance and validiv
of wjcientific studies or the criticisms of these studies? FortunateXy; the situation is
not as hopeless as it may seem, for despite the various points of contention, there
s e e m to be a core area of agreement, tacit thctugh it may be, Tn a resent review ctf
it-re literature on the effects of pornctgraphy, Neil Malarnuth, one ctf the most dis-
tinguished and least ideological ctf the investigators of the effects ctf pornography,
reports that there is currently enctugh evidence to justiQ the ""tentative conclu-
sion'2hat violent pornography causes both aggressive bel~aviorin "re laboratory
and at Xeast short-term attitudinal changes.'"
It does not necessarily follow from this conclusion, however, that violent
pornography significantly contributes to sexual violence ctr discridnation in the
real wt:,rld. As Linz, R n r t ~ d Domerstein,
, and the ACLU point out, Iaboratc~ryex-
periments that attempt to measure the effects of stimuli on human behavior or at-
titudes suffer from inherent limitations, including experimenter demand ef-t-ect
and an artificial context that give subjects license ta engage in behaviclr that they
might not engage in given real-world constraints. It should be noted, however,
that some of the investigators attempted ta obviate the problem of experimenter
demand. One study for instance, had subjects watch movies supposedly as part
of a campus film prc3gram and then tested them as part of a survey administered
in class to all students days later with no reference- to the f i l m they had seen.*"n
addition, attitudinal changes, as opposed to changes in behavior in the real world,
camot readily be explained by the artificial ccmditions of the laboratories,
Some objections levelted at the commission, such as a lack ctf a precise definitictn
of ""aggression," "em tc? be mere quibbles. Others seem to be just plain wrong-
f ~ instance,
r the ACLU" sobjecticm that the aggressitln might stem from frustra-
tion at the lack of opportunity tct mastuhate after being sexuaiily aroused does not
explain the greater aggression Pound when the stimulus material is sexually vio-
lent as compared to just sxualfy explicit. Still others are both inaccurate and un-
fair, such as Linz, Penrod, and Donnerstein's charge that the commission seemed
"un&le or perhaps unwiXIing to acknowfedgef' the limitations imposed by artifi-
cial laboratory conditions." Although the cclmmission may have unduly dis-
counted these limitations, they did in fact acknctwfedge them.'2
But the basic criticism that the artificial context of the laboratory imposes con-
siderable limitations on the inferences about real-world behavior that can be
drawn from the experiment results remains ~ a l i d . ~ T e s p ithese
t e limitations, the
commission a>ncludedthat "the availabie evidence stmngly supports tl-rehypoth-
esis that substantial exposure to sexually violent materials . . . bears a causal rela-
tionship to antisocial, acts of sexual violence,'"bdging the gap between the labo-
ratary findings and real-world behaviclr primarily by ""common sense,""" Is this
conclusion justified, or as the ACtU charges, does it '""wildlyotrerstate" the ""tenta-
tive resuits of a limited number" of studies? In my view, neither the cc>mmissic~n's
ccmclsrsion nor the ACLU" criticism is completefy justified. A fairer assessment of
what we know about the relatictnship belween pornography and harm might be
something like this: Scientific studies have shown that exposunr. to vicjIent
pomography causes aggression towards women in the laboratory, as we1l as at
least a temporary increase in sexual callousness as measured in laboratory and
field experiments. These studies, in combination with otlwr data, as well as com-
mon s n s e , raise the possibility that substantial exposure to violent pornography
might contribute to violence against women in socieq at largeVY5
In a law review article published a year after the commission submitted its re-
port, Frederick Schauer, the cc3mmission member who drafted the re]t7c>rtrssecticm
on the effects of ~xtralXyviolent pornography, explained that the scientific data
prcovide ""sme evidence" of real-world effect, thus ccmtributing ""one or a few
bricks" "ward a wall of proof.%For Scfiauer, the ""substantiai" "gap beween ""the
scientific evidence and any a>nclusionabout the ultimate question CIF causation"
can be bridged by making ""plausible" cctmnections between the scientific evidence
and the ultimate question, as well as bemeen nonscientific evidence and the ulti-
mate conclusion. Concretely (to continue with the masonxy metaphor), this ""pau-
sibfe comection" is supplied in large part by the assumption that the "favelrable
depictictn of x [leads to a greater] incidence of X," as i s borne out by the success ctf
advertising. Uttimately, however, khauer concedes that even the total evidence of
real-world causation is ""very far from concl~sive.'"~
Would that Schauer had presented these conclusions as moderately in the re-
port. There is r>bviuuslya large difference beween k h a u e r k later cautious as-
sessment that the evidence is ""very far from ccmclusive" and the report" bald re-
mark that the evidence "strongly supports" the existence of a causal relationsfip
between violent pornography and violence against women. Indeed, in quc~ting
the report in his article Schauer ctmits the modifier ""srongly" altogether,*'A simi-
lar distancing frorn the report" conclusian can be seen in Schauerk "re~astiing]~'
the report as finding ctnly that there is "sufficient evidence'9111rthe proposition
that "there would be more acts of sexual violence committed by a population
every member of which had been extensively exposed tc3 favorable depictions of
sexual vioteme than there would be in a population nct member ctf which had
been exposed to favorable depictions of acts of sexual vis>lence."*"
As rephased, the ccmclusion is fairly uncontrtlversial, In light of the effect on
attitude and behavior that violent pornography produces in the? laboratctry, as
well as our commonsense assumption that favorable depictions of behavior tend
tc:, increase the lkelihood of its occurrence, it does seem reasonable to suppose
that at least ctne person exposed tct pornography depicting women enjoying sex-
ual violence might have committed an act c'tf sexual violence in the real world as a
result of this exposure. But this reftrrmulation gains its unassaiiabifity by avoiding
what i s by far the rnctst important and controversial implication ctf the commis-
sion's repcrrt, namely8 that violent pornography sl,utzqicntafly contributes to the
problem of violence against women in American society. In marked contrast to
Shauer" subsequent Far blander statements about causatity; the cornmission%re-
port asserts that "sexually explicit materials featuring violence . . . fare] on the
whole harmful to society.""'~
Moreover;,although in his article khauer makes no claims about the amount of
violent pornography consumed by the American public, the report attempts tc:,
support its implication that violent pornctgraghy is a major cause of violence
against women by emphasizing the prevalence of such material. In the next sec-
tion, 1 discuss the commissictn3 claim that ""increasingly, the most prevalent
fc~rms'hfpornography depict violence. My point here is that we can gauge the de-
gree to which the a>mmission'sreport exaggerates the sipjficance of the scientific
data by noticing how much more modest and careful the inferences frorn these
data become when Sclhauer writes as a xholar rather than as a comfis~ioner,"~
Wheret then, does this leave us with respect to the crucial qtrestit>nof whether
violent pornography significantly ccmtributes tc3 violence agahst wclmen? The an-
swer turns on such subsidiary questions as: How powerful a stimulus to action is
violent pornography? Wll substantial exposure cause even ""normal" men to
commit acts of sexual violence or only those in some ""dviant'"population predis-
posed to such violenceY2If only a deviant population, how large a segment of the
populaticm is this"lnd just how readily available is this stimulus? These ques-
tions are ctf ccturse reletrant to estimating how many acts of sexual triolence are
caused by consumption of pornography each year. Is it a causal factor in 10,080
sexual assaults a year, in 1,000, or in fewer than ten-imitar questicms are relevant
tct assessing whether pornography is an important factor in the ongoing problem
of discrimination against women in the workplace and elsewhere in society'"
It is of ct2urs difficult tt3 disagree with Schauer that, generally speaking, a fa-
vurable depiction ctf x tends to increas the likelihood of x. Nonetheless, his anal-
ogy to commercial advertising is inapt. Unlike favorable depictions of cc>mmercial
prclducts, which are reinftrrce-d by a generally ctmsumeristic society, sexual via-
lence is morally condemed, and many forms ctf sexual violence constitute seri-
ous crimes. Given the strong social constraints against sexual violence-, violent
pornography is less likely to lead nctrmally inhibited people tct act in accordance
with the depiction than is commercial advertising. But the cctmbination of the vio-
lent imagery with sexual arousal might be a more powerM stimulus to imitative
acticm than is the typical media image. What is certain, however, is that truisms
like ""lvorable depictions of x increase the likelihood of x" or the ""cammon
sense" of eleven commissioners dcaes very littfe to inform the inquiry as to
whether violent pornctgraphy is a sipificant cause of violence or discrirninatictn
against women in this cotmtry.
The commission is on particularly shaky ground to the extent that it relies on the
prevalence of violent pornography as supporting its cctnclusion that such material
is an important cause of harm. "l'e report's claim that violent pornctgraphy is be-
coming "the most prevalent" type of pornography is appmently based on fr~ur
studies. The first is a 1953 Canadian study that found that 10 percent of the sexual
imagery depicted in the text of mainstream sexually explicit magazines (i""laybo!/,
Rnthouse, hf;rlsflel; Clalle~y~CIzen, Forztm, Oui, Club, Szun~rk,and Ce~zesis)involved
farce. The second is a 3980 study by Malarnuth and Spinner, which cctncluded that
pictorial violence in PEaybq and Pc~~fil*~oiise ""increased significantly" "from 3973
through 147'7, reaching about 5 percent in 1977. Third is a 1982 study by Dietz
(one of the commissioners) and Evans that examined the cclvers of 1,760 heters-
sexual pornographic magazines sold in "adult entertainment'' shops in the Furty-
seamd Street district of New Vcark City and determined that the most prevalent
imagery (17 percent) depicted ""bondage and dctmination." The fourth is a 1985
study of detective magazines by Bietz, Harry, and Hazelwood that found that the
cclvers tended to combine erotic images with images of violence; 28 percent of the
depictions invtllved ""sdistic imagery," most often with women as victims,
whereas 38 percent involved bondage, all of which showed bound females."'
Subsequent research, however; has cast doubt on the findings of some of these
studies and thus on the commission%conclusion about the pervasiveness of vict-
lent pornography, For instance, a 1987 study by Scott and Cuvelier fc~und,in stark
contrast tc:, Malamuth and Spimer, that the level of picttlrial sexual violence in
Playboy has never exceeded 1 percent and has been decreasing in recent years.'5
This finding is supported by the commission's own study (which it did not re-
port) showing that only 0.6 percent of the imagery of the April 1986 issues of
mainstream sexually explicit magazines depict ""Cjrce, violence or ~eapc)ns."'~
With respect to the amount of sexual violence depicted in mainstream '*adultr'
magazines, there is obviously a large discrepancy between the Malamuth and
Spinner and the Canadian study, on the one hand, and the Sct~ttand Cuvelier
(and the cornmission%s~wnstudy)' on the other. What accounts for this disparily
is difficult to say (although different views as to what constitutes violence may ex-
plain some ctf it), But until there is some consensus on this issue, it is premature to
conclude, at least with respect to mainstream magazines, that sexually violent
pornography forms a significant part of the imagery, let alone is on the rise.
Indeed, there is some suggestion that the level of sexual violence in these maga-
zines (whatever level it attained) may have peaked in the early 3970s and de-
creased somewhat since theneQ7
What about the prevalence of violence in hard-core pomctgraphic films and
magazines? One problem with the Dietz and Evans study cited by the cclmmis-
sion is that it focuses ctn ""bondage and domination." Tb the extent that this mater-
ial depicts cunsansztal sadomasochistic activity, there are, as Schauer later notes,
""owerfui arguments far treating such consensual material as fundamentally dif-
ferent in kind." Although also noting the argument "that depictions of even con-
sensual sado-masochistic activities represent an admixture of sex and violence
that in today" world is FtardXy likely to be gender neutral in impact," k h a u e r
ccmcedes that the report should at least have explored the issue.'"
A year after the commission issued its repclrt, commissioner Park Dietz, to-
gether with Alan %ars, the executive director of the cclmmissitm, published an
analysis ctf the covers of 5,132 magazines, books, ctr f i l m sold in "'aduft" book-
stores,""(The data were collected in 1985-1986 by commission staff but had not
been analyzed at the time the commission disbanded,) The study iFr3und that ap-
proximately 13 percent CIF all materials depicted violence. The figure was highest
for books (211 percent) and lcwest far films (8 percent), with magazines in the mid-
dle (12 percent). Once again, however, this figure included bondage, with no at-
t e q t to distinguish between consensual and nonconsensual bondage or other-
wise to distinguish between comensual a d nctnconsensual activity that arguably
should be considered violent only when sometme inflicts it against another" wilt
(spanking, for example), Some indicatirtn of how much ctf this 33 percent figure
may be inflated by the inclwion of consensual activity is that bondage was de-
picted in approximat-ely 10 percent of all the material examined. In contrast, only
about 3 percent of all imagery intiolved the use c7f force (rape, whipping, spank-
ing, and women fighting), not all of which is necessarily violent (e.g., sado-
masochistic spanking or women mud wrestling). Moreover, only about 1 percent
of the material showed the effects of violence (bruising, blood, piercing, and
corpses). Still, approximately 5 percent of the material depicted "9mplements ctf
violence (other than simple restraints), whether in use or not (whips, guns,
knives, ctr other weapons, haists or racks)."""'""
There is a Wofotd prc~blemwith classifying depictions of consensual bondage
and certain other consensual sadomasochistic actiirrities as violence. First, many
peopXe simply do not think of such activities as violent, and thus an assertion that
13percent of all images ft3und on the cclvers of hard-core pornography depicts via-
lence is in some sense misleading. But more significant, these figures are dubious
to the exfe.erztt/mt t h q are nzmtzt to con~lecfwith the scient$c stzrdies shc>wingthat expo-
sure to violent pornography causes aggressive behavior in thr? laboratory and &us
ission's conclusion that violent pomography is a significant
cause of violence against women. The victlent pornography shown to produce ag-
gression in the laboratory wually involved highly nonconsensual activity such as
rape. Thus if any figure frczrn the Dietz and Sears study is relevant in this respect, it
is not that approximately 13 percent of the images depicted "violence" in some
broad sense but that only about 3 percent of aII images involved the use of ft3rce.
Vet there are reasons tr3 believe that somewhat more than 3 percent of the selec-
tions in adult bookstores contain vicllence similar t~:,the stimulus material used in
the laboratctry, The Uietz and Sears study looked just at the covers of magazines
and books and videotape cases. It may well be, however, that items that did not
feature the use of force on the covers nonetheless contained one or more scenes in-
volving rape or other forms of vitllence shown tc3 cause short-term attitudinat
changes and aggression in the laboratory.'"%c>od candidates are those materials
that showed weapons on the cover but not use of farce.
As the disparate figures far magazines, films, and books reported by Dietz and
S a r s suggest, the level of sexual violence in hard-core pornography seems to de-
pend on the medium. A 1490 study by Vang and Linz found that in hard-core
pornographic films, about $0 percent of all behaviorat sequences depicted sex,
about 5 percent depicted sexual violence, and another 5 percent depicted nonsex-
uat victlen~e.~""'fAninteresting finding ctf this study is that far R-rated f i l m ap-
proximately 5 percent of the sequences were sexual, whereas nearly 35 percent
contained victlence, and ctnly slightly more than 3 percent contained sexual vict-
lence.) Unlike Dietz and Sears, Vang and Linz analyzed the contents of the iterns
and thus avoided the problem of judging a book (or a videocassette) by its cover,
But as in the Dietz and S a r s study Yang and Linz's definition of violence appar-
ently included all depictions of bondage, slapping, and spanking and thus may
have included consensual acti~~iv."~'
Similarly, an unpublished statistical analysis prepared by the Kinsey Institute
ctf the cuntent ctf hard-core pornctgraphic films apparently defines violence so
broadly as to encompass not only consensual sadomasochistic images that in-
clude ""tight bondage" but also ""horseplay" that involves playful bites or slaps on
the buttocks,'""n reviewing this material, Slade reports that two of the surviving
thirty-three ""sag" films fmm the 1920s in the Kinsey collection depict some vict-
lence (6 percent), as do ten of the eighy-four films from the 1930s (12 percent),
nine of the ninety-six films from the 1940s (4 percent), eighteen of 155 f i l m from
the 1950s (11.6 percent), and 27 percent of a ""large samplert of films Prom the
1 9 6 0 ~But
~ Slade believes that this sampling is "heavilly. skewed" tttclward the par-
ticularly violent English Glms by "re selection of the collector who donated the
movies to the institute.""
Slade reports thaauring the 3970s violence in hard-cctre pornography ""poba-
bly never reached above 10 percent," although the violence became more
grapKc,lfhh addition, he finds that rape occurs in sixty-seven for about 5 percent)
of the 1,333 ""examples" h the Kinsey a>Xleetion.'"' Jn contrast, a 1976 study by
Smith of the content of pomograpKc paperback novels between 1968 and 1974
fcjund that vicllenee became more prevalent after 1969 (Ieveling off in 19741, with
about one-third of the sex portrayed in these novels involving force. Moreover, in
this time period the number of rapes depicted doubled.lf1#
Despite the commission%confident claim about the ""increasing" pevalence of
violent pornography, the tru& is that we do not yet have a very firm grasp ctf just
how prevalent this type of pornography is or whether it is increasing, remainjng
constant, or perhaps even decreasing, having reached peak levels some time ago,
All that we can confidently say at this point is that neither the percentage of hard-
core pornographic films that contain violence nor the percentage of images in
such films is trivial. (If we need sorne tentative figure, the convergence of the few
studies suggests roughly 10 percent fur both measures, again with the caveat that
this figure includes depictirtns ctf cctnsensual sadomasochistic activity.) With re-
spect to mainstream soft-core publications, we d~:,not even know whether the
amount of violence is minimal or substantial. Similarly, we drrr not know much
about the violent content of hard-core pomctgraphic magazines other than the
suggestion of Bietz and Sears's study that the level of violence in these publica-
tions is somewhat higher than found in hard-a>re pornographic films. We have
somewhat more infcjrmation about the vialent content of pornographic novels, for
Smitl~'sstudy supports the finding by Dietz and Sears that the level of sexual via-
lence described in such works is quite high.
The amount of violent pornography a>nsumed by the American public is an
important matter in need of more carefully focused, nonideoXogicatly driven re-
search. Particularly helpful would be studies that clearly distinguish between dif-
ferent types ctf activity that could conceivably be characterized as violent and,
even more important, attempt to tie the frequemy of victfent scenes tct thase fcjund
to cause attitudinal changes and aggressive behavior in the laboratoryn9
?i7 the ACLU, it apparently does not matter whether images depicting rape and
other types of violence comprise more than 10 percent or less than 1 percent of
pcjmography, for the organizaticjn characterizes both numbers as "'smalf" and
thus apparently dismisses as insignificant even the larger numbers reported in
some studies. But this position disregards the massive quantity of pornography
that Americans comume each year. Acctrrrding to U,$, News and Wc~ddReport, in
1996, ""Americans spent more than $8 billion on hard-core videos, peep shows,
live sex acts, adult cable programming, sexual devices, computer porn, and sex
magazines----anamount much larger than Hollywood% domestic box office re-
ceipts and larger than aIf the revenues generated by rack and ccluntry music
recordings,"""""Between 1985 and 1992, the number of hard-core videos rented
each year rose from 75 million to 490 millicm; in 2996 nearly 8,000 new hard-core
videos were released thrc3ugh the approximatety 25,000 video stores that deal in
hard-core films.'" A recent sul.vey of the Tnternet fctund that in 1993ornography
accounted for 10 percent of the money earned in cyberspace (between $750 mil-
lion and $1 billion) and "cat there are approximately 34,000 pomographic Web
sites, which account fctr 2 percent of all publicly viewable sites.""-
Tf in Pact 10 percent or more of the billions of images viewed or read annually
by sexually aroused males do depict rape or similarly violent behaviar; then in
light of the studies showing attitudinal and behavior changes in the laboratclry as
a result ctf such stimuli, there is considerable cause for concern that pornography
might be a significant contributor to that complex matrix that causes violence and
dixrimination against women. If instead such violent images constitute less than
1 percent of the images depicted in mahstream soft-core magazines and only 5
percent of the hard-core fare, then there is less reason for concern, although even
such small percentage rates would be troubling given the massive amount of
pornography a>nsumedin this country
Although several attacks on the report leveled by Linz, Dmnerstein, and Penrod
are well founded, ctthers seem driven more by ideological disagreement than con-
cern far scientific accuracy. These scientists believe that the negative effects shown
in the experiments do not justify the suppression of even legally obxene depic-
tions of sexual violence. They advocate instead the classic free speech solution of
"more speech," "cornmending mass audience educatirtnal interventions tct coun-
teract any ill effects of violent pornography and other violent depictions: ""Since
legal remedies . . . directed at suppressing pornography have the potential of cut-
ting into every ft3rm of communicaticm and any law deviwd ta curb messages of
violence against women cctuld be used to suppress other messages of question-
able interpretation, we call for a more infi~rmedpublic rather than for stricter
laws,."13(~ Like any citizen, these scientists are free tc:, expl^c?ssany view on matters
of public policy. But scientists' political views should not lead them tc:, make inae-
curate or distorted claim about scientific data or even tc3 make unfair or misfead-
ing criticisms ctf a government report with which they disagree, Unfortunat-ely, in
responding to the attorney general commission% report, Linz, Fenrod, and
Donnerstein have done just that.
For imtance, these xientists fault the comnrission for ft3cusing on violent depic-
tions in a sexual context rather it-ran ctn depictions of violence against women in
general, implying that violent images rather than the sexual context are responsi-
ble for the results shown in the laborato~y."~ This criticism is both unfair and mis-
leading. It is udair because the commisdon" mandate was ta examine ""Le na-
ture, extent, and impact on society of pornography in the United Statesr8botto
determine the impact of all violent images on American s o ~ i e y . "It~is misleading
because the studies on which the commission relied suggest that it is the ce~nrbinn-
lion of violent and sexual images rather than violent images alone that accclunts for
it-re degree of the effects measured in the experiments. Indeed, Donnerstein and
Linz's ctwn experiments have shown that ""aggressive pornography" "produced
higher levels of aggression against women in the laboratory than did, aggresgive
films without sexual content a result that Linz, Penrod, and Donnerstein describe
in another pubtication as ccmsistent with other studies."' Judging from these and
s i d i a r experiments, Malamuth concludes in a recent review of the literature that
"exposure to messages in the context of pornography, where relatively high states
of arc3usal and positive afkct may occul; could have considerably stronger effects
than exposure tt3 the same messages in a neutral state of arowal or affect.""")
Linz, Penrod, and Bonnerstein's insistence that "violence agaimt women need
not occur in a pornographic or sexually explicit context to have a negative effect
on viewer attitudes or behavior" is beside the point.'" %rice a number of experi-
ments have shown that the presence of a sexual context increases the level of ag-
gression demonstrated in the laboratory the commission%and other researcher's
fcjcus on sexually oriented depictions of violence is not "rnmjsg~ided."""~ It may be
true, as I,inz, Penrod, and Donnerstein claim, that the depictions of nonsexuatized
violence are more readily available and thus a bigger prt3blem. (A recent study
ft3und that in R-rated films sexual violence accowts for only about 3 percent of all
behavior sequences, whereas nomexual violence acctlunts for about 35 percent.)lg'
But given the possibility that depicticms of scxualized violence might have a par-
ticularly pernicious influence on viewers, the existence of a more widespread
problem does not make focusing on the effects of depictions of sexualized vio-
lence inapprt~priate.
After criticizing tl-re commission for having too narrow a focus, Linz, R n r t ~ d ,
and Domerstein then ctlmplain that the ctlmmissitm%focus is too broad. They
point ctut that much of the stimulus material shown to affect attitudes and cause
aggression in the laboratory, fcsr instance, the R-rakd slasher films, was not nearly
sexually explicit enough to be considered pornographic, let afone ~ b s c e n e . They
"~
thus condemn as "hisleading" the commission's reliance ctn these experiments
"'as evidence for the general cctncXusion that "parnctgraphy?~ 'he
charge is unfounded.
First, the commission did not make a blanket assertirtn that pornography has
harmful effects, as this criticism implies. Ti, the contrary, the commission limited
its findings of harm to violent and demeaning pornography and expressly con-
cluded that even the most sexually explicit material that is neither violent nor de-
grading does not cause sexual violence. More important, the commission empha-
sized that the negative consequences ~ p o r t e din the experiments ""cl) not vary
with the extent of sexual explicitness so long as the violence is presented in an un-
deniably sexual context" m d speculated that slasher films ""are likely to produce
the consequences discussed here to a greater extent than most of tl-re materials
available in "adults only"pornagraphic outlets.'""" Still, although not ail of the
stimulus material was obwene or even pornographic, much of it was.""7nd of
cclurse there is no reason to believe that the negative effects shown in violent films
with mitd sexual ccmtent would be fess where the sex is more explicit. It was there-
fore perfectly reasonable for the commission to report that sexually violent
pornography produced aggression in the laboratory setting as well as short-term
attitude change.
The commission recommended that although violent o b ~ e n i t yis only the "tip
ctf the iceberg'kf the material that the studies suggest causes violence agaimt
women, vicsfent ctbscenity should nonetheless be tiigorously prosecuted for "ym-
bolicffreas~ns,to serve ""asa model for the condematctry attitudes and actions of
private citizens.""lWne can, of course, vigorously disagree with this proposed
course ctf actirtn, but given the report" express acknowledgment that it is nctt only
ctbscene or pornctgraphie material that has been shawn experimentally tct produce
negative changes in behavior and attitudes, there is nothing "misleading" about
the commission% conclusion that violent pornography has been shown to cause
these results in the laboratclry experiments.lW
Finally, it should be nctted that Linz and Donnerstein" condemnation ctf the
cc3mmission f ~ inadequate
r cauticm in generalizing frorn the laboratclry to the real
world, albeit valid, is also applicable to their own statements. In a 1984 Psycllology
Today article entitled "Sexual Violence in the Media: A Warningt'" Donnerstein and
Linz declare that ""flesearchers have shown . . . that exposure to even a few min-
utes of xxuatty violent pornograph~such as rape and other farms of sexual viu-
lence against women, can lead to antisocial attitudes and bchaviclr." "If a brief ex-
posure to sexually violent pornography can have these effects," they ask, '""what
are the effects of exposure tt3 hours of such material?""""h d in a book published
in 3983 Bannerstein summarizes the scientific evidence as revealing "a direct
causal relationship between exposure to aggressive erotica and violence against
women."
The ACLU is an ideological rather than a scientific organization, and thus one
would not expect scientific detachment in its critique ctf the report. Indeed, its
strong civil libertarian perspective provides a fitting dialectic to the cc>mmissic~n's
ccmservative one. There is nothing inappropriate with an advocacy organizatic>nfs
having a distinct perspective on a matter of public concern, but this does not di-
minish the fact that the ACLU" ccclmmentary is every bit as tendentious, and in
places even as misleading, as the report it criticizes. As noted, the cornmissictn un-
equivocally stated that it accepts the line drawn by the Supreme Court between
sexually explicit speech that is protected by the First Amertdrnent and that which
is not. The commission expressly declined to ~ e o r n m e n dbanning sexually ex-
plicit speech that is not obscene under Miller. Despite this clear statement, the
ACLU" responx reads as if the cornmissic~nhad called for the suppression of all
pomograghic material. Fctr instance, the ACLU charges that "the intention of the
Commission clearly is to eliminate \rirtualZy ail sexually explicit material currently
a~ailable,"""~ Similarlyt the ACLU accuses the commission of arguing that pomog-
raphy should be banned based on research suggesting that men who consume
pornography are less satisfied with the physical appearance of their w i v e ~ . ~ "
Although the chapter of the commission%report summarizing the scientific stud-
ies on the effects of pornography does mention this nr.~arch,"%owhere does the
report suggest that these findings justify the legal suppression ctf pornography,
The ACLU also charges that in accepting the Supwme Court's view that obsceniv
is not protected speech and in urging that such material be vigorously p r t ~ ~ c u t e d ,
the a>mmissionfc>stersa ""kcensorshigmentality" "at leads citizens to try to re-
move valuable but controversial literature frorn school libraries."'"
As anyone who has received ACLU fund-raising fetters is weXI aware, alarmist,
slippery-slope arguments are typical of this organization. There is perhaps noth-
ing inappropriate ataoubsuh hyperbole frorn an advocacy organization. What is
distuhing about the ACLU" response to the cornmission% report is its insou-
ciance about the harm that pctmctgraphy might cause women. Although the
ACLU played a useful role in exposing the commission% eexaggerated claims
about harm, it goes too far in the other directicm by denying the possibility of
harm. Thus it clairns that there is ''?toevidence to suggest that broad kvilsYlike sex
discrimination have any link to pornography at all."""' The evidence is far frorn
conciusive, but the iaboratctry studies showing increased aggression and negative
attitudes toward women are sotlze evidence. It is certainly appropriate for a civil
liberties organizaticln to argue that laboratory evidence of aggression and
changed attitudes do not warrant suppression of speech. Indeed, it might even be
appropriate for such an ctrganization to argue that even if the evidence were con-
eiusive that pornography led to acts of violence or discrimination through
changed attitudes, suppression ctf the speech wauid still be unwarranted. But for
an organization whose agenda includes women" rights to refuse to acknowledge
that there is some evidence that pornography might ccmtribute to women's iin-
equality suggests that the ACLU does not have confidence in its ~ I premiseW ~ that
even potentially harmful speech is entitled tc:, constituticlnal protecticm,ls'
An accurate nonideologicai assessment ctf what the scientific studies shctw
about the effects of pornography is presented in the Report of the Surgeon Gener~l's
Worhhny o~zPor~zogmpltya ~ Plablie
~ d HeafClz,Issued about the same time as the com-
mission" report, this report concluded:
Xlt sum, tltese experirnexrts s1t;ltuuldheigltten concern tltat aggressive beltavior toward
wornet1 may be illcreased by viewing aggressive nnci sextldlly aggressive films, but
prme~ltlythis effect Iws only been seen in colltmiled and pote~~tinfly artificial I~bora-
tory settings. . . . Pornography does have i t s effects; it is just not yet known how wide-
sprtaad or powerfit1 they really are. There is a clear lack of extexrsi-c~e kncIwtedge or uni-
fying tltcrctry, and global statements about the effect of exposure t~ por.trography ltave
not yet bee11sr~bstarztiated.""
This page intentionally left blank
1. Hustler Magazine v. Falwell, 485 U.S, 46 (1988).
2.163 US.537 (1896).
3. For instance, in Plessy the Court ctbfuscated the value chctiee it makes in up-
holding segregation by declaring that "in the nature of things [the Fourteenth
Amendment] could not have been intended to abolish distinctictns based ctn color,
or to enfc~rcesocial as distinguished from political equality, or a a>mmingl.ingof
the two races upon t e r m unsatisfactory tt3 eitherer'
4.347 U.S. 483 (1954).
5. See Loving v. Virginia, 388 U.S. 1 (1967).
6. See Adarand Constructors, Inc. v, Pena, 515 U.S. 200 (1995). Four members ctf
the majority backtrack somewhat from the kill implication of this holding by in-
sisting that this xrutiny unlike the scrutiny applied tct racial classifications that
disadriantage minorities, i s not necessarily "fatal in fact." They note that the "'un-
happy persistence ctf both the practice and the lingering effects of racial discrimi-
nation against minority groups in this country is an unfortunate realit5 and gov-
ernment is not disqualified from acting in response tc3 it." h a separate opinion,
however, Justice Scatia declared that ""government can never have a "compelling
interestyn discriminating on the bads of race in order to h a k e up9~llrpast racial
discrimination in the ctpp~sitedirection. . . . [It is this] way of thinking that pro-
duced race slavery, race privilege and race hatred." SmilarIy, Justice Ctarence
Thomas stated that """there is a moral and constitutional equivalence belween laws
designed to subjugate a race and those that distribute benefits on the basis of race
in ctrder to foster some current notictn of equality'"
7. Bradwelt v. State, 16 Wall. (83 U.S.) 130 (1872).
8. Goesaert v. Cleary, 335 U.S. 464 (1948).
9. Reed rr Reed, 404 U.S. 71 (1971).
10. Geduldig v. Aiello, 417 U.S. 484 (1474).
11. Persunnel Administrator of Mass, v, Feeney; 442 U.S. 2.56 (1979).
12. John Stuart Mill, ""On Liberty," in 0 1 1 Liberty mzd Other Essays 59 (JohnGray,
ed., 1991).
13, See State v, Mitchell, 485 N.W 2d 807 (Wis. 1992);State v. Wyant, 597 N.E. 2d
450 (Ohit? 1492). See also Susan Gellman, "Sticks and Stones Can Put You in Jail,
But Can W r d s hcrease b u r Sentence?" 39 34.G.L.A. L. Rev, 3333 (1991).
14. Wi~;ccmsinv. Mitchell, 508 U.S. 476 (1993),
15. R.A.V. v, City of St. Paul, 505 U.S. 377 (1992).
Yang and Linz study, 207 Zillrnann and Bryant study, 196,197,
'r'ates v. Avco Corp., 235(n39) 202,24 Q