As a professor at New York Law School and a former president of the ACLU, Nadine Strossen has spent much of her career writing and speaking about constitutional law and civil liberties. Her latest book, HATE: Why We Should Resist It with Free Speech, Not Censorship, draws on her decades of experience with these issues to present a thoroughly researched and strongly argued case against hate speech laws.
As Strossen points out in her introduction, much of the controversy over the regulation of “hate speech” is rooted in the lack of a clear definition of the term, along with widespread confusion about what kinds of speech are protected by the First Amendment and what kinds of speech are punishable. She therefore begins by laying out two of the core constitutional principles at issue: viewpoint neutrality and the emergency test. Viewpoint neutrality is defined as the principle that government may not regulate speech “solely because the speech’s message, idea, or viewpoint is disfavored, or feared to be dangerous, by government officials or community members.” The emergency test provides that “government may suppress speech only when it directly causes specific, imminent, and serious harm.”
Under these two doctrines, much of what is labeled “hate speech” is already punishable by law. This includes things like threats, incitement to violence, and harassment. The question, then, is what types of constitutionally protected speech, if any, should hate speech laws disallow? Strossen argues that bans on constitutionally protected hate speech are not only (by definition) unconstitutional, but also detrimental to freedom, equality, democracy, and societal harmony. Furthermore, hate speech laws are often used to suppress the speech of the very minority groups they were intended to protect, a proposition that is supported in the book by numerous examples from other countries.
Rather than censoring hate speech, Strossen argues, we should confront it with non-censorial methods such as education and counterspeech. Whether you agree with her conclusions or not, her book is a formidable work of scholarship that should be required reading for anyone interested in this controversial subject.
HATE: Why We Should Resist It with Free Speech, Not Censorship is currently available on the New Books shelf at the O’Quinn Law Library.