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.
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