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mes Weinstein
Arizona State University

?E
A Member of the l'erseus Books C;roup
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Copyright 43 1999by Westview Press, A Member of the Perseus Books Croup

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Libray cjf Corrgrms Cntaloging-ill-P~~blication Data

Weinstcrizr, James, 1926-
Hate speech, pornography, ancl the rnclical attack on free speech
doctrxlre I lames Weinstei1-t.
p. cm.
Includes bibliographical references ancl index.
ISBN 0-8133---270%3(hardcover).-ISBN 0-4313S2709-1
(pbk.1
1. Freedcj~r~
of spwch-United States, 2. Hate speech-United
States, S. Pornography-Uirite~l States, I. Title.
KF4772.W45 19%
342.73'0853-clc21 99-34285
CIP

The paper t~sedin this publication meets the requirements of the American National
Standard for Permnnetrce of Paper for Pr;intecl Library Materials Z39,4&19M.
 THISBOOK 15 DEDICATED TO
THE MEMORY OF MY MENTORS
S, GOLDSTEIN,
KENMETH IRVINGHILL,
AND EDWATCZ)
B. IKVIIRIG
JR.
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1 Introduction

2 Theory and &toy

Why I'mtect Speech? l2
The Lessons of History; 16

3 An Ovewiew of Modem Free Speech Doctrine

The Basic Taxox~omy31
Regulating Protected Speech:
The Search for a Basic Rule, 3%

4 Modern Doctrine in Action: Its Application

to Hate Speech and Pornography Regulation
Hate Speed, 52
Pornography, 59
Distkguishing Narrow Regulations
of Hate Speech and Pornography B1

5 Does Free Speech Doctrine Discfiminate

Against Women and Mina~ties?
Hate Spee&: Is T%erea Devil in the Except-ions?69
The R.A. V Decision, 74
 Pornogrqhy: Constitutional Protection of Sex Crimes? 714
The MacKh1o11-Dworkin
Model.Antipornography Ordinance, 81
The Alkged Failure of Free Speech Doctrine to Account for
Conf icting Constitutio~~al
Equality RiSghts, 85

6 The Camplex Relationship Between

Free Speech and Equality
Free Speech as a binforcer of the Status Quo, 94
Free Speech as an htagoni" ooi the Stahns Quo, 104
The Futility of ""Front-Z,oaded""Approaches
to Hate Speech and Pornography Reguiatioll, 118

7 The Benefits of Banning Hate Speech and Pornogap-hy 127

The Harms af Hate Spee& m d Por~~ography, 527
The Effectivclncss of Hate Speech and Pornography Bans, l35

8 The Casts of Regulation

The Slide Toward Totalitarimism? 241
Misapplication, Chilling of Nontargeled
Speech, arc3 Uiscrirninatory Enforcement, 142
ZJearnkgfrom Experience:
The Possibiliv of Draftkg Hate Speech
and Pornography Bans so as to Avoid Misuse, 147
Publicizhg Racist Organizations and Ideas, 150
The Possiblc Benefits of Hate Speech and Pornography, 153
Sending the Mlro~~g :Message, 154
Distraction from Remedying
Root Causes of Discrimination, 155
Impairing the I.:xgressive Rights
of Racists and Pornographers, 556

9 In. Search of a Confinable Principle

The "Harmful Tez~denc y" Ratioz~ale,160
Preventjltg Psychic Inji ury, 262
 Combating the Silencing Effect, 162
The Countervailing Co~~stitutionalEghts Ratio~~ale,
163
Harm in the Production of Pornography; 265
Rcduced Protectim for Speech That Attacks Immutable
Characteristics, 166
Reduced Protection for Defamatory Attacks on People, 167
Excluding Hate Speech from Public Dscourse, 168
ExclUdhg Pornography from Puhtic Dkcourse, 176

IQ Weighing the Costs and Benefits

of Hate Speech, and Pornography- Bans
Gauging the Stakes, 183
The Importance of Considering Mtcmatke Remedies, 185
The Hidden hauence of Nonutilitarian Positions, 286
Summary and ConcJusiasz, 187

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,
This page intentionally left blank
 PART O N E

Modern Free Speech Doc

Legal doctrhe-the body of rules gavernkg m area of law-m be diffi-

c u t to comprehend for several &&rent reasons. Doctrine &en involves
rarified abstractions hav-ing little connection with anything tangwe, as is
trhe case, for example, with the ruks goven~ingtrhe jurisdiction of Eederai
courts. Others areas are difficult to master becatrse of the sheer number of
detailed and technical rules. Some areas are conksing because the law is
in flux, with many co11flictil7g precedents. Finally, as in other so-called
learned disciplines, jargon often impedes laypeople" access to legal doc-
the.
Tb some extent, free speech doctrine is beset with i\ll these problems.
Rut the primav r e a m that free speeck doctrine is difficuit is the s m e
reason that basic: problems of moral philosophy are diffi.cult. Free speech
problems often present basic questim~sof humar~col~ductthat people
have been wrestlhg with for a very long time and that are answerable
only through deep normative judgments, Personally, 1 find these norma-
tive questions far more pelpiexing than the technical abstrusities with
which labv professors often deal. The good news for the nonlawyer, how-
ever, is that the basically normative nature of free speech problems makes
them far more accessible than, say, tax, copyright, or jurisdictional ques-
tions. Still, there is an importmt technical side to free speech doctrine that
cmnot be disregarded. Free speech doct*e is not memZy a philosopher's
code but a system of real-world rules constructed by judges in l i e t of ex-
perience and professional judgment.
The following two chapters =view basic free speech d o c t h e with m e
predomina~~t aim: providing the reader with sufficient b a c k g r o d to
evaluate the various claims and charges that radicals have made about
doctrine. Constitutional law scholarship in general and free speech
scholar&$ in particular are marked by an unbelpfuf kndex~cyto c o ~ ~ h s e
the descriptive-what the law is-with the normative-what the law
should be, In the following pages, I endeavor to separate as much aa pos-
sible descriptive from normative ana:lysis. Aifhough :I cannot render a
purely value-neutral description, 1nonetheless try to give a fair summary
of free speech doctrine so that the reader m y become an informed partic-
ipant in the dehate about &is doctrine.
The goal of free speech doctrine can "o easily stated: forbidding govern-
ment from suppressing speech that must he permitted in a free and de-
mocratic society while d o w i n g it to punish speech that causes harm
that gover~~ment may legitimately prelrent. Accomplishhg this goal is
not so easy Clearly, there is some expression, such as advocacy of law or
poticy reform throug:h peacdd, dmocratic means, that must be pro-
tected against government suppression. Just as surely pvemment must
not be constitutionally inhibited from prohibiting speech such as per-
jury, bribery or sdcitation to murder. But what about speech that advo-
cates social change through violence or other forms of Law violali,on or
that defames public officials? Or political protests that use offensive
phrases like "fuck the draftf"or illilammatory symbols such arr; flag bum-
ing? Cdr sexually expticlit speech whose primary pttrpose and effect is
sexual arousal?
:In order to decide hard cases like these, we must have a fairly clear vi-
sion ol why the Cmstitution limits the governmenl's power to sugpress
speech. To this end, in the first sectim of this chapter I attempt to identiffi
the various values u21derIying Americm free speech doctrine. Like all
law, though, free speech dochine is not just a product of theory but of ex-
perience and pragmatic judgment as well. As we shall see, early attempts
to construct constitutional rdes to wparate protected from suppressiible
speech did not adequately accomt for the tendency of legislators, prase-
cutors, and even judges to confuse offensive critique of govemrnent poli-
cies with speech that actually impedes the goverrlment"s ability to carry
out its legitimate functions. I therefore review in same detail what are
now seen as failcd attempts to construct free speech doctrhe that car-
rectly strikes the balance betwee11 the individual's right to critique society
and the government" ability to accomplish its proper goals.
Three basic values are mast commonly cited as underlying the free
speech principle: democratic se%f-governance; seasch for truth in the mar-
ketplace of ideas; a ~ mnjnstrummtal
d values such as ir-tdividud auton-
omy, self-f.ulfillme~and self-expression.'

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 "

Both the democratic self-govenlimce m d marketplace-of-ideas ratiorliales

justify free speech iz.;fmmentlallyf that it-;,in terms of the good it produces
for society as a whole. Nei&er is deeply rooted in some moral conception
of the relationship between the individual and the state, This is particu-
larly true of the markcztplace-of-ideirs rationale, w:hich bears no obvious
comection to any moral view about the way gove ent must treat indi-
d u a l s . (As we shall see, it is somewhat easier to posit a mral, individual-
focused basis for democracy) T%ere are several prablems, however, with
vicwhg free speech as purely instr ental to accomplishing some social
good.
Firs&instrumentally based rights tend to be mare fragile than morally
based ones; they are vufnerable to being overridden in a specifie instance
or wen extinguished altogether if the utilitarian caicuius suggests that so-
ciev would be better off without them. In contrast, r i g b that are justi-
fjcd in k m s of moral rights of individuals as well as benefiting society as
a whole tellid to be sturdier than fhose justsed by only o~lieof these ratio-
nale.;. In additio~li,despite ihe claims of some commntators, free speech
doctrine has always t ~ a t e dfree speech as an itzdividzral right, not just as
m interest assiped to jndkiduals as a strategic means for y r m o t h g the
on good1' Finay, there is the strong intuition, shared not just by
lawyers m d judgs but by the American public as well, that rcrgardless of
any societal good accomplished by expsessjon, people in this couIItry
hawe a basic right to speak their minds unless the g o v e m e n t has a good
reason for stopphg them.
It is in part to explain this intuition that the Court and commentators
have looked beyond instrumental jup;tiiications for free spee" to try to
g m d free speech in individual interests, such as self-expression, self-
fulfilhent, m d autonomy But any broad conception of such interests as
basic values mderlying .the constitutionill protection of speech creates
more problems than it solves. Just as the self-gover~~ance and market-
place-of-ideas rationalcs explain too little, these rationales explain too
much.
Virtually all speech ( m d most conduct) c m be seen as pramotkg self-
expression, self-fuldient or individual autmomy, Blasting music :Late
at Right in a residentid neigbborltood might for some be the height of
self-expression; for others it might be mgfily "'curskg out" anyone who
displeases them, such as the judge who refuses to dismiss a parking
tricket. For some, thmateni~ligto kill a hated enemy might be quite self-
fulfilling, as lnight inciting a crowd to riot. Two busi,ness competitors
agreeing to fx prices am exe~isirrgtheir autonomyf as is a psychiatrist
who decides t-hat she should counsel her chrmically depressed patients
to commit suicide. The labvs currently in place that prevent this expres-
sion would not, however, seem to implicate core free speech values."
'Thus whakver role somc broad conception of self-exp~ssion,self-fulfill-
ment, or autonomy mi,ght play in free speech doctrine, they wodd not
seem to be central values. More i~nportantfor our yuryoses, these values
do not inform us which speech govenmment may rcatlify regulate and
which i"cust refrain from s u p p r e ~ s h g . ~ ~
 There is, however, a more limited sense in which autonomy can be seen
as playing a major role in h e speech jurispmdence. h m inSightTS~Iarti-
cle,Thornas %adon neatly woids the problem of autonomfs explajning
too much by concmtratjng not on the speaket-" rights but on the listener%
interests. He posits fhat deeply embedded in free speech doctrine is the
premise that people are "equal, autonomous, rational agents'' and that
each person "se$s] himself as sovereign in deciding what to believe and
in weighing competing reasons for action." Aaccordir-rgi)j""an autonomous
person camot accept without hdependent consideration the judgment of
others as to what he shauld believe or what he should do,""' "mlon fo-
cuses 0x1 whether the goven-rmel-rtfsreasons or jzvtijfictations for suppress-
ing speech are contrary to this basic presmptio1-r of an autox-romousand
rational audience. He thus excludes as a legjtimate justiEiicatim the gov-
ernment" ccontrollhg infornation "to assure that [people] will mintain
certain beliefs.'"~ eloquently stated by ar-rotberprominer-rtphilosopher:
[Mlctrally responsible people insist ctn making up their own minds about
what is good and bad in fife or in politics, or what is true and false in matters
of justice or faith. Government insults its citizens, and denies their mtlral re-
sponsibility, when it decrees that they camot be trusted tc:,hear opinions that
might persuade them tct dangerous or offensive convictions, We retain our
dignivr as individuals, only by insisting that no one-no official and no ma-
jority-has the right to withhold ctpinion from us on the ground that we are
not fit to hear and consider it.'"

Scanlon" autonomy theory provides an importmt supplement to the

democratic self-government and marketplace-of-ideas rationaks, Unlike
trhe democratic seif-gowemancetheory it is not lintited to political speech.
And unlike the marketplace-of-ideas rationale, whose scope it aapproxi-
mates, it is firmly rooted. in the rights of indkiduals ratlner thm in s o m
prediction of co1-rseyua-rcc.sfor society as a whole. To my mind, this the-
ory best explahs our strong irttuition, as well as the doctrinal practice, of
valuing free speech as an end as well as a means. Additionally the focus
on the state's justification for rewlating qresSion rather thar on the na-
ture of the speech explains why even nonideationall art is protected. As
has often been observed, authoritarian governments routinely prohjbit
even nonideational art 0x1 t-he slappositi~1-rthat regardless of the artist%in-
tent, certain types of art Will have a cotmptilng influence or lead people to
questjon authority.17
One shortcoming of Scanlon" theory, however, is that its focus on the
right of individuals to receive information to effectuate autonomous
choice does little to explain the right of individual.; to corzuey messages.
Into the breach steps Ronald Dworkin, who gex-reratea theory of speech
protection using essentially the same first-order political principle
Scaazlon employs. But where Scanlon emphasizes the '%autonomous" as-
pect of Lhe fow~dationalprhciple that government must treat each hdi-
\"dual as "equal, autonomous, rational agents," 'workin emphasizes the
"eequal." To Dworkin, government violates the basic command of equal
trl-eatmcnt when "it disquafifies some people from [ e x p s s i n g their
views] on the gromd that their convictions make them t~n~vorthy."'"
Democracy in this view is valued not just because it leads to stability,
weaith, peace, ar~dgood order but because it is the only form of govern-
ment that does not insult the dignity of some members of sociev by treat-
ing others as more valuable or worthy of respect. Just as denying s o m
people the right to vote because Ihe goverrlment disagwes with whom or
what they i n t e ~ ~todvote for is cor~traryto lrhe basic ewality principle on
which democracy is formded, so, too, is denying some people the chance
to shape public opinion because the government h d s their ideas to be
wror~gor offensiw. Uworkin thus supplies a moral, no~~h~strumental rea-
son for the democratic self-governance rationale for free speech, thereby
firmly grounding it as an i n h i d u a l right.l9

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.

The Espionage Act Cases, Advocacy c$ Illegal Activity,

and the "Clear and Present Danger" Test
In light of the values llnderlying free speech doctrine, especidy the. corn
value of democratic self-goverr~ar~ce, speech that simuttaneously advo-
cates pditical change and violation of existing laws h s presented a most
difficult challenge for free speech doctrine. This problem was acutely
raised by opposition to U.S. invoivement hWorld War I that urged resis-
tance to the draCt or harshly criticized conscription in ways that coutd be
interpreted, as advocating rr;fusal to serve, Sirnilar problems wouid arise
later in the century when members of the American Communist Party
cmbined critique of the deficic?ncies of capit"ljsm with advocacy of the
violent overthrow of the h e r i c a n government.
I h e First Amer"tdmmt%majestic commanddHCor~gressshall make no
law abridging the freedom of speechff-was added to the Constitutiom by
the Bill of Rights in 1733.. But it was not until 191.9, in Schenck v. Mf-zited
States, that the Suprem Court decided its first important free speech
case."' The case arose when Charles Schenck, the general semtary of the
Philadelg-rhiaSocialist Party, mailed pamphlets to military conscripts cm-
demning the draft implemmkd during World War I. The pamphlets de-
scribed conscription as "despotism in its worst form and a monstrows
wrong against lnumnity in the interest of Wall Street's chosen few,'' as-
serted that the draft was a violation of the Thirteenth
hibition against slavery; and urged conscripts to assert their rights.
Schenck was convicted. of violating the Espionage Act of 1917, which
among other things made it a crime to "willfully cause or attempt to
cause insubordinatio~~, disioydv, mutiny, or refusal of duty, in the mili-
tary or naval forces of the United States?
Affiming the conviction for a unanimous Court, JUstice Oliver Wendell
Wolmes pronounced the farnous "dear a r ~ dprewnt danger" test.
Government may legitimately suppress speech, he wrote, that creates "a
clear and present danger" of '"substantive evils that Congress has a right
to prevent.'" Holmcs reasoxled &at: becaurit. both the "te~dency"~ of the
speech and its '"'intent'' were to obstruct recruitment, sufficient danger
had been s h o r n to nlarramlt its suppressi~n.~ In the abstract, the "dear
and present danger'" test may have scented a logical way to strike the
proper balance between dissidents3right to protest and the government's
legitimte power to prevent serious law violation. But as Holmes had
written many years before, "'the life of the law 11as not been logic; it has
been experience."" Experience would soon reveal the shortcoming of this
test in prottzcting free expression in a democratic suciety
:InfmItwerk.?i, United States, decided just a week after Schenck, the defm-
dant was sentenced to ten yearsYmprisonment under the Espionage Act
for publishing Iwo articles in a German-language newspaper critical of
U.S. involverne~~t ~IIWorld War I." 1x1the first article, the author declared
such ixlval\rement to be a "'monumental m d hexcusalble mistake" result-
ing from the influence of "the great trusts'hand spoke of the "unconquer-
able spirit'kf the German natiox~.tn the secox~darticle, the defendant de-
plored the draft riots but, according to Halmes, "in language that might
be taken to " m y m innuendo of a different sort-." The writer stated fur-
ther that afthough &aft resistance is technicafly "wrongf'" and "ill-
advised," the resister is "'more sinned against than sinningfr";wlfi he
asked, "will pronounce a verdict of guilty upm him if he stops reasoning
and follows the first h p u l s e of I7atul"e: self-preservat-iox7""?Wotmes con-
ceded that, unlike in Schenck, the defendmt made no special effort to
reach men subject to the draft. Nonetheless, nothg that "the circulation of
the paper w g h t have been] in val-ters where a little bl-eath tavouid he
errough to lcindle a flame," he upheld the conviction.
 Debs zr. U~zitedStates, decided the s m e day as Fmlzwerk, affimed the
Espior~ageAct conviction of E u g e ~ Dcbs,
~ e the leader of the Swiaiist.Party
and frequent presidential c a n d i d a t e * 2 T ~ bwas
s sentenced to twenty
years in prison for a speech he delivered at a state Socialist convation in
which he praised the courage of t h e antiwar grotclstors col~victedof aid-
ing and abetthg draft resistance, rembded young men that they were "fit
for something better than slavery and c m o n fodder," ssneered at the ad-
vice to cultivate war garcia~s,and blmed the high price of coal 01%the
"'plutocrats." Molmes held that these co?nments, togettler with the
Socialist Party" antiwar proclamation, which called for "continuous, ac-
tive, and public opposition to the war, ef~roughdemmstratim, mass peti-
tions, and all oher means within our powr"r;" "wanted the jury's h d -
ing that the htent of Debs's speech was to obstruct the draA. X I this was
its intent, Holmes continued, such would be its "probable effect," thereby
creating a suificient danger to justify p u ~ ~ i s h m e ~ ~ t . ~ ~
As originally enacted, the Espimage Act was designed to prevent spe-
cific interference with the war effort, such as insubordination in the
a m e d forces or obstmctio~~ of recmitment. In 1918, however, tlze act was
mended to strike broadly at dsloyd speech. Among other speech prohi-
bitions, it m d e criminal durling wartime "disloyal, p r o h e , s c u d o u s or
abusive language about the form of govemmnt of the Unikd Statesf"or
"'any languilge inlended to bring the form of governmcnt of the United
States . . . into contempt, scorn, contumely or disrclpute," even statements
infcl~~ded to hinder the sale of U.S. bonds. In addition, the 1918 a m e ~ ~ d -
meats made it a crime to "'urge" mrtailtl-rent of the production of materi-
als necessary to the pmsecution of the war with inttlnt to hinder its prose-
cutiox~.so or^ after these amendments were e~~acted, facob Abrarns a r ~ d
several anarchist colleagues distributed a circular protesthg the expedi-
tionary forces that the Allies had sent to Rsxssia in an attempt to put down
trhe B,lshevik revolution. One of fhe pampltlets, entitled 'The Hypocrisy
ol the U'nited States," asserted that "[the president] is too mtxch oS a cow-
ard to come out openly and say: 'We capitaljstic nations cannot affclrd to
hawe a proletarian repuhlic in Russia,'" that '"here is only one enemy of
the workers of the world and that is capitalism," and called upon the
workers to "Awake! Rise! Put down your enemy and mine," Another
leaflet pmcbimed, "Workers in the a m u n i t i o n factories, you -are pro-
duck$ bullets, bayonets, cannon, to murder not only the Germans, but
also your dearest, best, who are in Russia and are fighting for freedom."
The leaflet cmcluded by calling for a general strike.
Abrams and his associates kvere convicted on several counts mder the
4918 amendments, including using ""disloyal, scurrilous and abusive lan-
guage &out ihe form of Gove ent of the United Stak.;" and language
"'intmded to bring the f o m of Gover~~ment of the United States into con-
tempt, scorn, contumeb and d i ~ ~ p ~ tase well,
, " as for incitzng resistance
tru trhe war e k r t and for urging curtailment of m u ~ ~ i t i m
production.
s In
A bvams U. United States, the Supreme Court affir~xedthe c~nvictions.~' T%e
Court"however, rested its afimance solely on the counts relating to incit-
ing resistmce and urging curtailment of munitions production, citing
Schelzck and FvohweYk as foreclosing any First herrdmerrt challenge,
Slnce the twenty-ymr sentences the defendants were given did, not ex-
ceed what might have been imposed under any sin* cow~t,the Court
decided it did not have to rule on the validity of the convictions an the
counts relathg to abusive speech about the form of government or to de-
cide whether the dekndants' ahusive statemer~tsagahst the president
w u j d cyualiiy arr; ""about the f o m of Goverrlment of the W t e d States.'"
Remarkably; nary a word of concern is trttered about kvhether ptmish-
rnent for abusive speech against government iTlstitzltions is consistent
wieh free speech in a democratic society
331,s time, hawever, Holmes dissented, f k d h g that the publishing af "'a
silly leaflet" by "poor and puny monymities" did not create m immedi-
ate dmger of disrupting munitio~~s manufacturing. Wotmes's Abrams dis-
sent, which newly appointed justice L,ouis D. Brandeis joined, remains
one of the most elovent mci movhg defenses of free speech:

[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.

The "Red Scure'Tases

At :Least theoreticdly one of the speech-protective elements of the "clear
and p~semztdarrger'"tc.st as practiced in the Etipionage Act cases was that
it was lrhe judiciary (supposedly less immune to the "11erd instinct" &an
the legislattxre) that was to assess the immhence of the alleged danger,
Howevelr, in a 1925 decisim, Gz'flozov. Nezu York, the Court held that a leg-
it;lati\refillding of dmger ""must be given great wc.i&htw by lrhe courts. The
Court readay defclrrctd to the judgmmt of the New York Icgislaturct that
m y speech advocating the fofcrcful overthrow of orgmized government
was per se dangerous, regardless of circumstances.""It affirmed the con-
viction of a defendant charged with publishkg a newspaper that advo-
cated "mass industrial revolts" m d 'kevolutionary mass action" b r pur-
poses of establishing a "revolutionary &tatorship of the pr~leta"i"t-~~
(The silver Ening h this dark cloud was that the Court for the first tinne
held that the free speech provision of the First Amendment applied, to the
states by virtue of the Fourtmnth endme~~t's The Process Clause.)%
Two years late&in Whifney zt. (3al$omin, the Court reviewed a convic-
tion under a California law that made it a crime to be a member of m or-
ganization that advocakd force or v i d e ~ ~asc ea meam to "a change in in-
d~tstrialownership" or any "'poli"cical change.""" The defendant in that
case was persmally opposed to violence as a means of palitical chmge
and had supported a resolution, ultimately defeated, proposing achieve-
ment d Che party's ends through the traditional politjcal process.
Nevertheless, the Court affimed her conviction, stating her free speech
chailenge was ""nothing more than an effort to r w i w the weight of the
evidence.'' In a concurring opinion joined by Holtmes, Brandeis kvrote that
"even advocacy of [law] violation . . . is not a justificalion for denying h e
speech where the advocacy falls sbort of incitement ard there is nothing
to indicate that the advocacy would be immediately acted on."" Nearly
fifty years later, the Court would adopt something quite like this formula-
tion. In the mealtime dockhe mmained inadequately pmkctive of dis-
sident speech.
 A smatterQ of cases during the 1930s showed that there was some
limit to the goven~ment's-nbility to s u p p ~ s speech
s based on the claim
that it might lead to lawlessness. For hstmce, the Court reversed the con-
viction of a Hack CommuElist Party organizer senknced for violating a
Georgia law crimhlizing any "attempt to inrite insurrt??ctio~~.~ The at-
tempted "hsurrection" mnsisted of possession of a document that called
for "equal rights for the Negroes and self-determination of the Black
Belt." Yet even here the Court's vote to reverse the coz~vict;iol'twas by the
narrowest of margins ( 5 4 ) . Moreover, the m;.zjority opi"Ion cvas an ad
hoc denunciation of an obviously outrageous infringement of civil liber-
ties, offerir~glittle ir1 the way of general speeh-protective principles.
The sorry state of free speech doctrine in the Unikd States s o o hcjcame
~~
apparent. In 1940 Congress passed the S~xithAct, which made it a crime
for anyone to "advocate, abet, advise, or teach the duty, necessi_t)i,desir-
ability or pmpriety of overthrowing or destroying any gove
Lmited States by force or violence.'' m e law also made it crimhal to %e-
come a member" of "any society, group, or assembly of persons who
teach, advocate, or encourage" such violent overthow. It1 1948, high-
ranking officials of the Ameriem Communist f arty were convicted of vio-
lating this law. It was Learned Hand, by then a Court of Appeals judge,
who in Uent~isv. United States w o t e the opinion affirmi% the convic-
tions." Candidly admitting the confused state of the "clear and present
danger" test, a standard he had never much liked, Hand nevertheless
struggkd scrupulously to find a fomula fhat described the cwre11t state
of the law. He proposed the fo130'~ving:"heach case [cozzrts] must ask
whether the gravity of the 'evil,"discounkd by its irnpr&abiliVI justifies
such invasion oi free speech as is necessary to avoid the dal1geraff
The Supreme Cowt upheld Judge Hand's affirmance of the convic-
tions.""There was no maority opinion, A plwaliry of four justices, ir1 an
o p i n i o ~by~ Chief Justice Fred Vinson, purported to adopt Hand's test.
Acbo\vledging that there was no evidence that the speech in question
presented an imminent likelihood of vident overthrow of the U.S. gov-
ernment, Virts;ox?rdeclwd that " m attempt to overthrow the Gave
by Ewe, even though doomed from the outset . . . is a sufficient evil for
Congress to p ~ v e n t . "But there also was no evidence that the advocacy
was ljkely to cause a r ~imminent u t t ~ m p fat vident overthrow.
Nevertheless, Vbson thought that the proof at trial that the defendants
intended to a t t a p t to overfirm the government "as speedily as circum-
stances would pe"mitffp~sentecfa sufficiently grwe and h m i n e ~ dan- ~t
ger. An obscure and remote danger was thus judicially transfigured k t o a
"c1ear and prc?sentHone.
:In a ca~~curring oPi17io11, JustjCe E
CZ
h Era~likfurtercharged the &%son
pluralirw with not faidy applyirlg any recognizilble form of the "dear and
present danger" test. FXe nevertheless voted to a f i m the judgment on the
ground that the "primary responshility for adjusting the i n t c ~ s t s "be-
trtvee~nfree speech l t d public safety in a case like &is lay with Congress.
Fsmkfurter cmdidly admitted, holvever, that "'in. sustahing the convic-
tions before us we can hardly escape restriction on the interchange of
ideas." He noted that advocacy of violent overthrow of the govennme~ntis
often "coupled with . . . criticism of defects in our society" and that p m -
ishhg such advocacy will inevitably '"also silence critics who do not ad-
vocate overthrow but fear that their criticism may be so co~nstrued."He
therefore brmded as "self-.delusionf"he position that affirmance of thgse
convictions would not add "to the risks run by loyal citizens whC) hm-
estly betieve in some of the rcfoms Ihmdefendants advance.""""" It woutd
take the Warre11 Court to finally put some teeth into the protection af-
forded dissident speech.

Advocacy oflllrgal Activity and the Warren Court

As we have sea$ perhaps lrhe major faiture of free speech doctrine during
World War I was that it pamitted ambiguous stateme~ntsby war critics to
be construed as advocalifig criminal activity. Well aware of this defect, the
Wamen Court made sure that this would not happen in cases involving
critics of the Vielnm War: hn 1966 the Georgia House of Rep~sentatives
refused to seat JLrlian Bond, a young, black civil rights acthist duly
elected to the house, on account of antiwar statements he had made. Band
had wdorsed a statemernt by the Studernt Nonwiolent Coortlinating
Committee (SNCC) that declared: "We are in sympathy with, and sup-
port; the men in this country wl-to are unwilling to respond to a military
draft." Bond added that he was a pacifist and was "eager and amious to
encourage people not to participate" in the Vietnam War, and that al-
though he did "not advocate that people should b ~ a laws"k he "admired
trhe courage'kf people who burned their draft cards.
In an opinion by Chief Justice Earl W a r ~ nthe
, Supremc Court unani-
mously held that neither the SNCC declaration nor Bond" own state-
ments couid be used by Ihe State of Georgia to rehsc; to seat B01nd.~~ These
statements were, the Court explaked, ""at worst mclear" as to whether il-
legal means should be used to avoid thcr draft and thus were protected. hy
trhe First Amendment. Rased on this case, a kderal Court of Appeals re-
versed the conviction of Dr. Benjamin Spack for conspiring to counsel
registrants to vjolate the draft law." "ock had stated that he hoped that
trhe frequctnt stathng of his antiwar ViCws, which hclraded signing a docu-
ment calli,ng for draft resistance, would give young men "'courage to take
active steps in draft ~sistmce.'"
:In 1964, during the height of the Viet~nitmWar, the Court similarly ex-
tended First Amendment protection to a young m m who, at m antiwar
rally, declared, "If they ever make me carry a rifle, the first man I want to
get in my sights is LBJ. They are not going to make me kill my black
brothers.'"^ mversing the conviction under a hw prol'hibiting threats to
kill the president; the Court ach~owledgedthat a true threat to kill was
not protmted by the First Amendlnent but cautioned that "[wll-rat is a
trhreat must be dislix~guishedfrom what: is constitutionally protected
speech." %nsitive to "the pr~foundnational cornmitrnent to the pritlciple
that debate m public issues should, be uninhibited, robust, and wide-
open," the Court interpreted trhe fetderal statute as not outlawing "politi-
cal hyperbole" such as the defendant" speeche4'
Later that year, the Court was fjnally ready to state a new, more speech-
protective test for determinir~gw:hen advocacy of law violation could be
pul7is:hed consistent w itl-t the First endmnt. Bmndenbz~rgit, Ohio in-
volved a Kza Klux Klan leader who had trttered derogatory remarks
agaislst blacks and Jews m d warned: "We're not a revengent organiza-
tion, but if our President, our (;lo~~grr;.ss,
our Supreme Court, continues tru
suppress the white, Catrcasian race, it's possible there might have to be
some revengeance takrmz."44Based solely on this speech, trhe KLan leader
was cmvicted llr~deran (Ihio law f o r h i d h g "advocat[ing] the duty, Ine-
cessity, or propriety of crime, sabotage, violerne, or unlawful mthods of
terrorism as a means of accomplishing industrial or political reform.'The
Suprem Court wclrsed the conviction, h o l d i q that the First
AmendJnent does not permit government to punish "advocacy of the me
of force or of law violation except where such advocacy is directed. to in-
citil7g or producing immineM lawless a c t i o ~ar~d
~ is l h l y to incite or pro-
duce such action."45
entator has observed, the Bruzdezbzlrg test corrthines
"the most prokctive i n g ~ d i e ~of~ t[Learned
s I-land's] Masses inciteme~~t
emphasis with the most useful e l m m t s of: the clear and present dmger
heritage.'"Wo longer couid critics of g o v e r ~ ~ mpolicy
e ~ ~ t be puniShed for
trhe ""innue~~do" or the da~gerous"tendency" of tbeir specrcrh, tndeed, as a
prophylactic measure to make sure that dissidents are not punished by
hostile juries merell; for the "creed they avow," &~vande~zbtru,y extends First
A m e n b e n t proteCtior7 to expres~advocacyof illegal activity; it is o ~ ~ l y
when this advocacy crosses over into '*"incitement"-a call, to immediate
action-that it can be punisf-red, m d then only if it causes "a clear and
present dangerf"of law violation (or as that hoary test is rephrased in
Brandenhnrg, when the speech is "'likly to. . . produce i m i n e n t ladess
action"'). Free speech doctrine, then, had come a :Long way from the days
of Debs, Mrhitraey, a ~ Dde ~ ~ n i s .
Suhseqtrent cases would confjrm, moreover, that Bmndef~bur,uworkd
well in actinn, not just on paper, For instance, in &ss v. Indiana more than
100 anti-Viebarn War protesters blocked a street until the police fh~ally
arrested some pmtestors and moved the others to the curb. Hess was ar-
rested for yellixlg, "We'll take the fucking street later [or again].l14' The
Supreme Court revertied the convictio~~: "At best. . . t-he statement could
be taken as counsel for present moderation; at worst, it amounted to noth-
ing more than advocacy of ilkgal actim at svme indefin.ite fuhre tirne.
. . . [Thus] those words could not be puniskd by lfie State 01%the ground
that they had a tendency to lead to k~iolence.~'
The Rralzdelzhzrrg incitement test was to prove useful not just for antiMTar
dissidents but, together with other Warre11 Court free speech cases to he
discussed later, for civil rights pratestors as well. For example, in. I966 the
National Association for the Advancement of Colored People (NAACP)
d l e d a boycott of white merchants in Claibom, Mississippi, who dis-
crixni~~ated against blacks. Mthough c d u c t e d largely through legal
means, the boycott did involcre some sporadic violence- The merchants
sued for civil damages in state court and recovered, a judgment of $1.2
miilion agaix~stlfie NAACP and several olher defendants, includint; civil
rights activist Charles Evers. The Mississippi Supreme Court affirl~edthe
T k Mississippi courts f-ound that a speech by Evers stating that
boycott vio:iators would he "disciplined" was not expressio~~ pro")t"ct"d by
the First Amendment. In reversing the large civil judgixent, the U.S.
Supreme Court disagreed:
While many of the a>mmentsin Eversbspeeches might have a,ntemplated
""discipfine'3in the permissible form of social ostracism, it cannctt be denied
that references to the possibitiv that necks would be bnlken implicitly am-
veyed a stemer message, . . . This Court has made clear, however, that mere
adz?ococyuf the use of farce or violence does not remove speech from the pro-
tection of the First Amendment. . . . [The] emtltionally charged rhetclric of
Charles Evers3peech did not transcend the bounds csE pnltected speech set
forth in Brandenburg [because almost all] acts of violence. . . occurred weeks
or months after [the speech].

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.

Speech "Outside" the Scope ofthe First Anlendment

The "clear and present danger" test was not the only instance of an at-
tempt to draw a line between legitimate discourse and wortIhless speech
that failed in practice, In the abstract, it would seem that face-to-face
verkai assaults ('**fight* words"") false statemnts injurious to reputa-
tion (defamation), and sexually oriented material intended solely for
sexual arousal (obscenity) could be prohibited without unduly impair-
ing legitimate public discourse. Or so the Court thought in 1942 whe11 it
declared:
There are certain well-defined and narrow1y limited classes of speech, the
pmvention and punishment of which has never been thought to raise any
Csnstitutionaf problem. These include the lewd and obscene, the profane,
the I.ibelc>us,and the insulting or fighting words. . . . It has been wet1 ob-
served that such utterances are no essential part of any exposition of ideast
and are of such slight social value as a step tct truth that any benefit that may
be derived from them is cfearty outweighed by the social interest in order
and mtlraiity:

Fighting Miords. 'This exercise in h t r a c t l y separatint; useful from use-

less speech came in Cliuplinsky .it. New Hlznzylshire.'"' The case ttpkld the
conviction of a. Jehovah's Witness, who inm argum,ed with a law enfosce-
ment official referred to him as a ""Cod d ed racketeer" m d ""a da
Fascist."' 'The Court found that use of such //fightingwods"" '%Wtheir very
uttcrilrnce innict injury" and,in addieon, "are likely to provoke the aver-
age persm to retaliation," thereby causing a breach of the peace. The
Court concluded that "klesort to epithets or persor~al&use is not in ar~y
propeMense communication of information or ophion safeguarded by
the Corrstittltiorr." By the 1 9 6 0 ~however,
~ a troubling pattern had
emerged: Law e~~forcement officials were ushg the fighthg-wods excep-
tion to selectively prosecute antiwar and civil rights protestars. In re-
sponse, the Court mversed every fighting-words convictim that came be-
fore it during this turbulent era.51Although it has not fomaily overruled
the fityhling-worcls doctrine, the Cozzrt has yet to affir~xanother conviction
fUP the use of fiighting words in the more than fifty years since Chaplilzsk^3/.

D+mntiola. In Gaplilzsky the Gout aiso declared iibel to be without

First Amendment protedion." h the abstract, this ruling seems unobjec-
tionable, for what is there possibly worth pmtecting in a factual assertion
that is not only false but also injurious tru sorrteo~~e's
good name? Like face-
to-face verball assaults, such scurriltaus statements would seem to be "'no
essentkl part of any exposition of ideas" nor "a step to truth.." But experil
ence revealed t-hat libelous stateme~~ts were often inextricably hound up
with the exposition of ideas and that allowing government free rein to
suppmss libel also gave it the power to suppress unpoyuiar points of view.
In 1960 an Alabama jury awarded a police commissioner $500,000 in
damages agajllst t%le Mctur York Times m d several civil rights activists, find-
ing that an advertisement carried by the paper in support of the protests
led by Dr. Martin Lutha King Jr. was lihelous. 'The fil'ldir~gW;-IS based on
several false statements contained in the advertisement, such as the
charge &at King had been arrested seven tixnes by the Montgomery po-
lice for his prok" activities, when in fact he had been arrested only four
times.. Finally recognizing that Cfzapli~ztilSylscateg:oric;zlexclusim of libel
from the realm of First Amendment protection had, imperil@& pubtic dis-
course, the Court in New York Times zt. Sullivalz held that ""libel c m claim
no talismanic7 immunity horn constit-ut-ionallimitations."" Writing for the
Court in this landmark 1964 decision, Justice William Brennan formulated
a principle that has guided free speech decisions ever since: "[Wfe con-
sider this case against the background of a national commitment to the
principle that debate on public issues should be unjnhibited, robust, and
wide-open, and that it may well include vehement, caustic, and some-
times mpleasantly sharp attacks on government and pub3iic officials."
To protect public discouse from being unduly restricted by defmatim
actions, the Court held ihat pubtic officiafs can recover for defamatory
statements concernilng their conduct in office only if they can prove by
clear and convincing evidence that the defendant made the statement
wieh "malice," that is, knovviedge oi its fdsity or with reck:Less disregard
for whether the statement was true or not." Because the police commis-
sioner could not show that the factual misstatements in the advertisement
were made either with kr~owledgeof t-heir faisity or with reckless disre-
gard for the truth, the Court =versed the judgment.
 Cummercial Speeelz. In 1942, the same year it decidecf Chaplinsky, the
Supreme Court decided a case that cast commerciai speech-speech that
does no mare than pmpose a commercial transaction-outsicte the protec-
tion of the First Aunendment." If any category of speech were so distinct
f m lrhe marketplace of ideas that it could be regulated without inhibit-
ixlg robust public discourse, it would seem to be commercial speech. But:
cases involving advertismen ts by abortion p roviders and civil ri@ts
lawyers revealed that even commercial advertising cannot be neatly sepa-
rated from public discourse+'*In the 1970s the Court began extmding
some First Amendment protection tC) commrcial advertising, and in l980
elaborate four-part test to govern challenge"^ regdation of
it devised a r ~
commercial speec11.'" The upshot of this test is to require that government
show that the regulation is a reasonable means of accamplishhg a Xegiti-
mate objecthe, Unlike the B r a d n b u r g incitement test or the NCrv Vark
Times malice test, wbiCh were designed to be exceedingly $ifficult to
meet, the commercial speech test provides consideralble leeway for regu-
lation, and the Court has on several occilsions upheld prohi-bitions on
commercial speech under this test.%

Obsce~ify. The doctrir~aldirectiox~since the late 19605, then, has been

distirrctly away h m Chaplinsky's categorical exclusion methodology
and toward a more refhed examination of the free speech interest and
governmental prafyoses involved in the regulatjon of these vasious types
of speech. C)f the several varieties of expression that Chaptinsky declared
to be outside the bounds of Pirst Amendment protectian, only obscenity
still remains unprotected. But even with regard to obscenity the Court has
endeavored to preve~~t regulatio1.1of sexualiy expli"t speech from inhibit-
ixlg public discourse.
A 1959 decision, Roth z~, Unit.& States, confimed that obsceniv fell o u t
side the protection of the First Ame~~drrtent." Beealzse it upheld govern-
mental power to ban obscenity, Roth is mast often viewed by liberals as a
speech-repressive decision. O fen overlooked is that in confirming this
traditional understa~dingof the First A m e ~ ~ d m eRatJz ~ ~ tstrictly
, cox~fined
the category of obscenity Writing for the Court, Justice Brennan ex-
plained that qt]he partrayd of sex in art, literature m d scientific works is
not itself sufficient reason to deny material the cox~stitutiondprotection
of freedorn of speech and press." Rather, to be legally obscene material
must '"appeal to the prurient i n t e ~ s t "m d be '"utterly wihout redeeming
social imp&nce.'?n other words, it must constitute what today wodd
be called ""hard-core" pornography. To assure that serious art and litera-
ture were adeyuately "safeguard[e&]," the Court specifically rcjected a
test for obscenity then in use that allowed material to he judged by ihe ef-
fect of an isolated passage upon particularly susceptible persons. Roth in.-
sisted that the work be judged instead ""as a whole" and under '"contern-

rrowed the category of what could be constitutionally

s u p p ~ s s e das obscene, government often used the obscenity laws to pro-
hibit important works of art, including 'I%leodore Dreiser's American
Tragedy, D. M. Lawrence's Lady CJzIZtteTley's Loz~c~; and Henry Miller's
Tropic of Cancer and Tropic af Cayvicclm."WObscenity laws we= also used in
unsuccessful attempts to suppress educational material such as sex edu-
cation pamphlels and Lve magazine" '"'Birth of a
The current constihrciomzal definition of obscenity; announced in 1973in
Miller v, CnEifirmia, also limits obscenity to ""had-core" gor~~ography so as
tru pmkct serious artistic and likrary expression."" To be legaly ohscene
and thus wilbout Fisst Amendment protection, the material must, talken
as a whole, ""appeal to the psurieIIt hterest," describe "dtimate sexual
actsf"in a "patently offensive way,'" and lack ""srious literary! artistic, po-
litical, or scientific value.""
Despite the Court's efforts to protect art, lirerahnre, m d the expression
of ideas by confi g the makriai that may be bamed as obscene, recent
developments have again proved the danger of categoricay excluding
speech. from First A m e n b e n t protection. Obscenity laws have been used
tru prosecute a museum for show* Robert Mapplethorpe's bomoerotic
art m d to convict a record dealer for selling a recordh3g by the black rap
group 2 Live CEW. The jury acquitted the museum curator because it as-
surned that photographs displayed in a prominent museum must have
some serious artistic valueeM111 contrast, the 2 Live Crew album, which
did not have the ivnprimatur of a socially acceptable museum, was held
obscene by a federal judge who tulned a deaf ear to expert opinion that
the record contahed artistic value when viewed kvithin the context: of the
black urbm ex~ericmce.~ (This ruting was evmtually reversed by a fed-
eral appellate court.)&

Assessmerzt of the Cnfeprical Exclusion Approach. The less ox^ to be

lemled from the now discredited a r ~ dlargely ahando~~ed Cl?apIir"tskycat-
egorical exclt~sianapproach is much the same lesson learned from the
failure of the origixlal "clear and present danger" test: What appears in
trhe abstract to be a reasonable accommodation between free speech and
legitimate or even compelling governmental hterests often turns out in
practice to have a far greater impact on free expression than antjfipated.
Moreover, the victims of such overreaching e ~ ~ f o r c e mare e ~ ~often
t those
whose speech the authonhes f k d particularly msettlhg-such as anti-
war protestors, civil rights artivists, or black rap artists.
'This is not to say that: the categorical exclusio~~ of certain types of
speech will, inevitably lead to the suppression of unpopular ideas or oth-
erwjse iIxspair robust: public discourse," Perjur)i, bribesy and solicitalion
of crirnilnal acts hawe always been considered categoricdly uwortl-ty of
any First .Amendment pmtecli,~n,yet their exclusion has not i n t e r f a d
with dernocratjc self-governance or any other puryose served by the con-
stritutional protection of speech. Whethel- a givm categorical exclusion
will result in impairment of core free speech values depends prinnarily on
pragmatic considerations, These considerations include the breadth of the
exclusion, the overlap of t-he exciuded category with cakgories of speech
essential to p.ublic discourse, the specificity with which the excluded crate-
gory can be dehed, and the discfetion invested in law enforcement oE-
ciais to decide which speakers to a r ~ aandt prwemte.
a c e the 1960s the distinct trend bas been toward eliminating cate-
gories of mpr~tectedspeech os drasticdly reducing their scope. 331ercr is,
however, one modern decision that defies this trend, h 1982. the Court
heid in Mt2w Z/itrric a Ferber that child pornography (photographs of chil-
dren errgagkg in. sexual acts) is categorically kvithaut First Amendment
protection.'"Vecause the Court camfully cellfined the category of child
ponlograpky, it is possiMe that this exclusion, like the exclusion of
bribery and perjury and unlike the excl~lsionof libel and fi&ting wards,
will not significantly irnpair public discourse or artistic expression.
h the previous chapter, I e x p l o ~ dseveral basic rules governirrg several
key areas of free speech doctrine, such as advocncy of filegal acthity,
fighting words, defamatim, and commefcrial speech, Rut because the fo-
cus oi that discussion was historical, emphasizing how ihe lessons from
the past shape today'S srules, 1made no attempt to explaixl how these rules
relate to each otlner or to survey the enti.re landscape of free speech doc-
trfne. 11-1this chapkr; &erefore, I cmvass the basic rules and investigate
holv (or if) they form a coherent framework*1begin by discusskg what is
encompassed, withiTl the m a n i l ~ gof "speech" as that km is used in First
Amendment case law. The bulk of the chapter, however, is dedicated to
examining the rule against ctl~fcnf discrimilzati~n.We will discover that
despite some loose language in several S u p ~ m Court
e decisions suggest-
ing t-hat all content-based regulatio~~s are presumptively ur~cnnstiktiond,
this is not t%le case. fiather, some vpes of content =@ation are viewed
suspiciously, whereas others raise no serious corrstiSutiona1 prt,blems at
all. I cox~cludeihe chapkr by suggesting a way to make seIIse of this curi-
ous pattern.

The text of the First h e n d m e n t refers to ""speechf"and "the pl"t3s"ifl To

prevent the purpose of the First Amendment from being stifled by
cramped literalism, however, the amendment has been read more gener-
ally to protect '~trxp~ssion.'~Thus commurricatiorz that is literally neither
speech nor the pess---such as photograph" ffitms, painthgs, and
dance-is protected. But ""expression" i s an extremely capacious concept.
Isrdeecl, in s m e sense all voluntary human activity is expressive, includ-
ing some of the most harmful thjngs that humm beings do. Terrorist
bombings, poli"ccal assassinations, genocide, and rape can all be highly
expxssive activities. For First Amendment protection to he meaningful,
it cannot extend to all humall activity. At some basic level, then, free
speech doctrine must distinguish between activity eligible for First
Amendment protectioaz (I'speech" or "expressiod') and that which is not
(""cllduc t").
To this end, free speech case law divides the miverse of humm activity
into four categories: ('1) protected sgeech, (2) unpmttzcted speech, (3) ex-
pressive condwt, and (4) nowxgressive conduct. As the termir"to1ogysug-
gests, the basic dichotov is bettvee~~ "speech" ard ""cnduct.'"5peech'" is
my activity. that makes use of a conventional mode or medium of commu-
nication. For example, talking, singing) dmdrrg, parading, broadcasting)
fihmaking and diseribulio~~, musical compositia~~ and performa~ce,paint-
ing, sculpture, and djsplayillg objects irt a mttsem would all be consjde~d
speech for First Ame~ldmentpurposes.' ""Conduct" is residually defined as
all other huma"t actjivity W t h w t fur&er relh~emel~t, however, such a stark
division would place on the ""speech" "sic of the line activity that obviously
should not ibe afforded cmstitutimal immunit-y (such as gejury or soficita-
trion of murder), while at the same time d e f i r ~ i ~as~ g
"conduct'hctivity
whose sole fmction is expressive (such as flag burning as a f o m of political
protest). To mitigate the rigidity of this basic dichotomy, the Court has sub-
divided "'speech""into "protected'" a r ~ d"~~"tprotected" speech ancf "co~"t-
duct" into "expressive" m d "nonexpressive" conduct.

"Protected" and "Unprotectedf'Speeclz

As we have seen, a hallmark of the First endment jurisprudence of the
1%0s and 1950s was that certain large categories of e x p r e s s i o ~ ~ ~ h c l u d -
ing "fighting words," lihel, obscenity, and commercial speech-were cast
outside the realm of First h e n d m e n t protection. So long as the state
could demonstrate that speech fits withir~one of Lhese cor7stitutiol"tal:iy
forlorn categories of expression, it cotlld ban the speech without any need
to make a particularized showing that the speech in qrnestion is harmful.
Althougb the categorical exciusim approach has hem largely discredited,
the Court has not eMirely renounced it. mscexlity (and arguably "fighe-
ing words"') remains categorically bereft of First Amendment protection,
as do perjwy bribery some forms of libel, criminal solicitation, threats,
and child psrnographyeZ
"Protected speech'' is the resdual category here, comprising ail expres-
sion in a convenf;ionaimedium that does not f d into a category of ~ ~ p r o -
tected speech, Not all protected speech is pmtected equally, however. For
instance, the First Amendment imposes greater obstacles to the regulation
of a political edibrial in the newspapcl- than to rcwlatim of workphce
conversation. Later in this chapter we will explore in. same detail the gen-
eral topic of differential treatment of protected speech. At this point, how-
ever, in light of our particular focus on pornography redation, I want to
fiighlight a particularly stark exam,ple of such differential treatntenl.

Protected but "Lower-Value" Speech!

Althougf7 sexualv explicit material that does not meet the Miller standard
for obscenity is protected spec" in that it camlot he balmed, several
Supreme Court decisions suggest this material is not entitled to full First
Amendment protection. In Vitung U. American Mini Theatres, Justice John
Paul Stevens, writing for a plurdity of the Court, opjned that while "the
First Amendmat will not tolerate the total suppl-cssior.~ of erotic materi-
als that have same arguably artistic value, it is manifest that society's in-
terest in protecting this type of expression is of a wholly different, and
lesser, magnitude &an t-he interest in untrammelod potitical debate.'"' T%e
Court in Vozing allowed a city to apply special zoning requirements to
prevent "adult" movie theakrs and "ookstores from locatlng within 1,000
feet of any two other ""regulated usesf" (which included '"adult"' book-
stores m d theaters as well as pool halls, bars, and cabare&).A majority of
the Court lnas never expmssly endorsed the view that nont,bscemze, sexu-
ally explicit material is '"ow-value" But the Court's holding in
Mlzrng, as welt as its subsequent decision in Renton 21. Playfz'me Tf2r.,llres,
which allowed a city to concentrate ""adult" "eaters in a certaisl area of
t o m , show that sexuafly explicit nonobsce~~e speech is ~ Ifact
I treakd as
"lower-value" expression.'

"Expressive" nnd "Nonexpressive" Conduct

"'Exp~ssiveconductf3s ac.tivity that does not utilize any comntionally
recogl7ized f o m of co =xication but is wvertheless sufficie~~tly cm-
municative to be entitled to First h e n d m e n t protection. To qualify as ex-
pressive coduct, activiv must "ktenLd.1 to convey a particularized mes-
sagef"under circmstances in which "the likelihood [is] great that the
message would be mderstood by those who viewed it.""xamples of ac-
tivity deemed "expmssivc cmdnct" hclude draft card burning, flag bum-
ing, displayil7g a r d flag,weaklg a black amband, ar~dnude dmchg.
Activity qualifying as "expressive conduct" is entitled to First Amend-
ment protection, hut the degree of protection depends enormudy on the
state's justification for regulating the activity. :If the state is unable to offer
a reason ""unrelated to the suppression of free expression," then the regu-
lation will be treated as a c&&-based regulation of protected speech
and invalidated unless the government can show sorm extremety
weighty reason for the regulati~n.~ Iff in contrast, the government pre-
sents a jusrcification that is "uunfelated. to the suppression of free expfes-
sion," the reguiatior~will likely be upheld.T'I'he expressive co~~duct cases
thus underscore an important feature of modern free speech jurispru-
dence: concern with ~ g u l a t o qpu~ose.Wewill encounter this theme of-
ten in fhe pages to come.
"Nanexpressivc3 conduct'' is that large, residual realm of humm activ-
ity that yualifies as neither protected or unprotected speech, nor as ex-
pressive conduct. It includes everything from changi~~g the oil inone's car
to mbbing a bank. Governrwnt may regutate nonwpressive c o ~ ~ d u c t
without h.indrmce from the First h e n d m e n t so long as it c m offer some
legitimate reason for the regulation. Thus the state may punish racially
motivated assaults more harshly than other assaults on the theory that
bias crimes M i c t m o esnotional
~ injllry on the victim and are more dis-
mptive to the community; it may mt, however, ilzcrease the penalty to
punish lrhe defe~~dant for holding racist beliefs."' Once ilgain, we see the
central role g o v e m m t a l purpose plays irt h e m free spec?& doctrine.

RESULATXME PROTECTED SPEECH:

FOR; A lEfAsxc R U L E
THES E A R C H
Nolv that we have mapped the basic structure of free speech doctrine and
explored some of t-he values zznderlying that structure, we are in a posi-
tion to tackle m e of the most difficult questions in all of free speech doc-
trine: Under what circumstances may government regulate expression
protected by the First Amendment?
:It is sornetisnes assumed that if speech does not falli within one of the
catetgorks of w~pmtectedspeech, it is immune from govelnment regula-
tion mless it creates ""a clear m d present danger" of same harm govern-
ment may legitimately prevent. But there arc?numerous instances where
gwernm"'"t c m regulate speech on grounds far sbort of a clear and p=-
sent danger of harm For instance, government may insist, without show-
ing such lmguage mates an imminent danger; that students and teachers
in classrooms at public universities, as well as workers in government
agencies, not use profanity. Similarlq: regulations of cornmexiill and in-
dustrial speech, such as laws against misleading advertising, often seek to
prevent ham that is neither clear nor present. The reason the "'ciear and
present danger" test does not serve well as a basic rule governing the reg-
ulation of prokcted speech is that it was not developed for this purpose.
Rather, this test was devised to determhe whe11 political adztoctacy &at ern-
courages law uiolafion loses its constitutional immunity. Trmformed and
strengthened in Rmnderzbzlrg l>lzio, the cument test for when advocacy of
law violation may he constitutio~~aily punished i s a corr~erstoneof mod-
ern free speech jurisprudence. None&heless,it has lit& direct applicat.ion
outside the realm of advocacy of law violation.
The Court has suggested another rule as a basic sta~dardfor detemkl-
ing whethtlr a regdatian 05: protected speech comports with the First
Amendment. '"CAjbove all else," the Court declared in a 1972 decision,
"the First Amendmenl: meam that government has no power to restrict
exp~ssionbecause of its message, its ideas, its svbject mattclr, or its con-
tent,'""'~; the 1990s the Court purported to operationalize this policy into
a mle that "[clonte~~t-based regulations are presumptively invalid.''" We
shall discover that this rute against co~~tentdiscriminam is not nearfy so
bmad as it: purports to be, Still, it is m extremly important feature of
modern free speech doctrine.

The Distinction Betwen Go~tent-Based

and Content-Nru tual Regulations
Older free speech decisions termded to focus on the nature of the speech in
question. Thus the Espimage Act and Smith Act cases asked whefher the
dekndants' speech created a "dear and p ~ s e n danger'kof
t somc. grawe
hann, just as the Court in Clzapli~zsleyinquired cvhether the speech in p e s -
tion was "communication of inclrmation or oyinion safeguarded, by the
Constitution."" A ssjngular characteristic of r e c m free speech jurispru-
dence, in contrast, is its focus on the nntrre offhe regtrlatian. The key ques-
tion in most of the free speech decisions sincc the 1970s has been whether
the regulatior~is conter~tbased or cor~tentneutral.
The Court's hostility to content-based laws is manifest. "'Regulations
whjch perunit the Government to discriminate m the basis of the content
of the message," the Court declared in a 19M decision, ""cannot be tofer-
ated under the First Amendment.""" As we shali.see, this statement is too
broad, for same content-based restrictions are routinely and urrcontro-
versially permitted under Che First Amer~dment.A more accurate state-
ment is that in errfain confexfscontent-based restrictions will almost al-
ways be invalidated, (We will later try to determine in which contexts
this stmng mle agahst conte~~t discrimination operates.) A broad state-
ment about content discrimination that is almost always true, hawever,
is that only content-based restrictions are likely to he invalidated.;
cor~te~~t-r~eutral
laws, in contrast, are almost always upheld.
Given the importance of the distinction between content-based and
content-neutral regulations, it is crucial to understand what is meant by
these terms. Contmt-based laws are ones k~LVhich the goverr~mer~t seeks
to regulate expression because o'the message it conveys." A law prohibit-
ing myone from criticizing the government's drug policy would be con-
tent based. Content-neutd l w s ofdinarily regulate the "time, place or
mmner" of speech without reference to or concern with its message.lhAn
ordinance prohibiting the use of loudspeakers in residential neighbor-
hoods after 10:00 1 : ~ .would be cor~tentneutral.
Content-based regulations come in, different varieties, same worse thm
others from a First Amendment stmdpoint. As the Court explajned in a re-
cent decision, ""viewpoint discrimhatio~~'' is a r ~"egregiousf"form of con-
tent regulation.17Viewpokt discrimination occurs when the regulation is
based on the "sspedfic molivating ideology or the opinion or perspective of
the speaker=" A l w prohibiting anyolxe from stating that abortio~~ is mm-
der is viewpoint discrimk~atory,as is a law that forbade anyone from ex-
presskg the view that blacks are genetically hferior to whites, Because
viewpoint-discriminatory regulations are considered to be emdamntally
co~~trary to basic free speech m m s , patex~tlywiewpoirzt-based rewlations
are inhquent. A rare example of a plah1y viewpoint-based ~gulationc m
be found in Kesfey htemaf io41al Pictzcres Cnrp Kccqe~zfs.'"n h i s 1959
case, the New York film b o d denied a license to hilly Clh&&deyr;l";Lowr on
the grounds that it presented adultery "as being right and desirable" in
certain situations. h fjnding the denid of the licmse unconstj.tutimal, the
Court explained that "the First er~drnent"bbasic guarantee is of free-
dom to advocate ideas" m d that the denial of the license "thus struck at
the v e 9 heart of constitutiondy protected hberv.''
Viewpoint discrimination does not, however; exhaust the urliverse of
content-based regulation. For hstance, a law that prohibited any discus-
sion of abortion (whether pro or mn). although not viewpoint discrimina-
tory is nonetheless content based. Such a regulation discriminates 0x1 the
basis of subject matter or topic. m e line between viewpoht and subject
matter discrimination is not always clear. In a 1995 Supreme Court deci-
sion, five justices &ought a phihilrion on fur~ciinga student publication
because it ""pirnarilly promotes or mmifests a particular belief in or about
a deity or an ultimate rr;alifyWccontituted viewpoint discriuninatim; four
justices thougbt: that the r e g u h t i o ~was
~ merely suhject-mattel. discrimin-
ation.l9
Laws that forbid the use of offe~~sive words or symhois have also been
readily cfassified as content-based reguiations. The semir~alcase in the
area ol offensive languizge is Cofzen 71. Oltfomicr, a 5971 decision in which
the Court upheld the right of an antiwar protestor to wear in public a
jacket bearing the message "'Fuck the r)-raft.'"-"-j Finding that the ordinance
used to punish Cohen for use of offensive speech was contmry to "'the
usual rule that governmental bodies may not prescribe the f o m or cmtcllnt
of individuai exprewio~~,~' the Court held that the state couid not constit-u-
tionally excise "one particular scurrilous epithet from the public dis-
course." "We cannot indulge the facile assumption," cautioned Justice
f o h Harlitn, "'that one car1 forhicl particdar words without also running a
substantial risk of suppresskg ideas in the pmcess." Harlan noted inaddi-
tion &at"mmuch linguistic exp~ssionserves a dual communjcativc func-
tion: it colxveys not o d y ideas capable of ~laeivelyp~ciscj,detached expli-
cation, but otherwise inexp~ssibleemotjons as ~vell,."Sjdarly, in Texas U
Johnsorz, a 1989 decision that fomd a First amendment: rigfit. to h u m the
American &g as a form of political protest the Court held that forbidding
Slag dcsecratim because such activi,ty "'would cause eriorrs offense to otb-
ers" ~ n d e r e dthe restriction "content: based."28
The cases invalidating laws forbidding offensive words and symbols
have been particularly controversial; both Coke@and lalzrzscln sparked
heated dissents. To the dissenting justices, flag burning m d use of vulgar
language are, like fightlng words, "no essentiaf part of m y exposition of
ideasf";any idea can,in theif view, be ""clmeyecl . . . just as forcefully in a
dozen djfferent ways" M"itb.outthe use ol ixlflammatofl)ilanguage or sym-
bols.?*
Regulations that expressly discriminate on the basis of viewpoint or
subject matter or those that proscribe particular Cvords or symbols will. al-
most always be coalside~dcontellt based. But once we get beymd these
exemplars of cor~tentdiscrimination, things get murkier. As with most ab-
stract legd concepts, the distinction bewecn cmtent-based and contenl-
neutral regulations blurs around the edges. For instance, in Ttknzer
Bmdeasting System, hc.i-? FCC the Court struggled to cksify a federal
law requirkg cable television operators to devote a portion of their chan-
nels to the transmission of local broadcast television stationseZ3
Ack~owledgingthat "[dlccidlmg whether a particular rc.gdati,on is con-
tent based or content neutral is not always a simple task," a bare majority
of the Court cmcluded after extensive analysis that the provision was
cmtent neutral. In contrasl, four justices thoug:hl: the provision was con-
tent based.
But the most controversial detemination of whether a regulation was
content based or content neutrd-and one partimulaly relevant to the
subject o f pornography-cme in Realon 71. Playfinze Tlzmt~s,l 1 2 ~ . ?This~
4986 dLr.isit,n involved a zorzing osdinmce that prohil>its movie &eaters
showir~g""adult" fibs from locating within 1,OO feet of any residence,
churck, park, or school. Nthough thc. regdation was e x p ~ s s l ycast in
terms of the conttznt of the films (those "characterized by an emphasls on
matter depictk~g,describing or retating to "specified sexual activities' or
'specifed anatnsnical ilreais"'", a mgority of the Court found the or&-
nmce to be content:neutral.
Justice William Rehnquist f o u d that the ordinme was //"aimednot at
the cctntcnf of the M m . . . btrt rather at the semndary efecfs o f such the-
aters on the sumounding The "secmdary effects" 'targeted
by the ordhmce wel-c lower property values and irlcreased crime said to
be caused by the me= presence of such th.eakrs m d the clientele they at-
tract. The Court found that these harms were distislct from any effects
caused by tfne impact of the f i h s on the audience. Dissenting, Justice
Rrennan, ~oinedby Justice Thurgclod Marshall, thou@ that the city's
"secondary effects"' ralionale was rnerely a pretext for burdening the ex-
hihition of these films due to official disapproval of its message. Not only
was the evidence of harmful "'secondary effects" in his view "prely spec-
ulatj\re," h t some of the city's o t h a stated reasons for enacting the ordi-
nmce revealed its true puTos;e. For instrance, fhe city had justified ihe
rcgdatior.~on the gmunds that pornography ""causes a loss of sex~sitivity
to the adverse effect of pornography upon children, established family re-
lations, respect for maritd relatimships and for the sanctity of marriage
rclatims; of others, and lfie co~~cept of no11-aggressive, consensual sexual
relations."
That there may be some regulations that are difficult to classify should
not, however, obscure the fact that most speech regulations are easily
identifiable as either content based or content neutral. For the most part,
the dichotomy has proved to be a workabk and, useftll tool. The problem
with the distinction is not lack of clarity but rather that it is sometimes
mechanically applied in, ways that lose sight of its trnderlyixlg purpose.

The ImpeufL.ct Fit Between the Rule Against

Content Discrimination and its Purpose
The Court has offered the following explmation for its hostility toward
content-based ~guliltions:'*Laws Of this sort pose the Int-terent risk that
the Government seeks not to advance a legitjxnate regulatory goal, but to
supprcss unpopular ideas or ir"tformationor marlipdate the public debate
through coercion rather than persuasion. These restrictions raise the
specter that the Government m y effectively drive certain ideas or view-
points from the marketplace.ff2b
Athough content-based restrictions often "raise the specter" of govern-
ment hostility to certaira ideas, they do not inevitably do so, Thus it is far
from clear how a law that requires autrhors of books describing crimes
they have committed to turn over to the crime victims the proceeds from
sale of these books threatens to "drive certain ideas or viewpoirtts from
trhe marketplace."'17Similarly, a prohibition against residential picketing
that contaixrs an exception for picketkg at residences that are also places
of employment would seem to be a reasonable, viewpoint-neutral accom-
modatio~lbetween the right of residential privacy and the interests of
workers to picket their phce of employment.'Tet both of these regula-
tions were found content based and invalidated, Justice Sandra Day
OICo111"torhas candidly admitted that "it is quite true that rcwlations are
occasionally struck down because oC their content-based, mature, evcn
though common sense may suggest that they are m t i ~ l reasonable."2y
y
Conversely, &though coz~tent-neutralregulatims will usually not have
a discrimhatory purpose or effect, they are not always so benign. As has
been observed, content-neutral restrictions "may at times have a differen-
tial impact or reflect a latent governmcntai hostility towards certain
ideas."""" law regulating protests at abortion clinics will have a decid-
edly disproportimate iIxrpact m antiabortion messages, just as a
Mississippi law passed at the height of the civil rights movernent ljmitini;
protests in front of govemme~~t buildings had a disparate effect 0x1 anti-
segregation messages.'Tet First Amendment challenges to these regula-
tions were to no avail, for free speech doctrinc notoriously dues not ac-
count for fhe disparate impact that cmtent-neutritl laws may have on t-he
marketplace of ideas." And irrespective of disparate impact, some
content-neutral regulations, such as a ban on the sale or distribution of lit-
erature at airports, arguahly adversely affect both the democratic self-
governance amd the marketplace of: ideas through the sheer amownt of
speed that they mstrict."
There is, then, less than a perfect fit bet-vveen the rule against content
discrimination and its stated purpose, Such gaps are inherent in legal
rules, but the yrobkm is exacerbated in free speech jurisprudence by the
rigidly detemined result flowir~gfrom the classification of a rt-zgulationas
content based or content neutral." If deemed conlent based, a regulatjon
will be subjected to ""the most exacting scrukiny"' fa test the Court bor-
r ~ w e dfrom equal protectio~~ jurisprudence). To survi\re this strict judicial
scrutjny a law must be ""necessary to serve a compelling state interestpf
and furthermore be '"narrowly drawn to achieve that estd."""%s has been
aptly rrlmarkcd, such scruti~~y is "strict in theory [but] fatal in fact."'ih
There are thus few cases on the books in which a speech regulation has
survived this test,
As worded, the test for content-neutral speech regulations is not tooth-
less, demanding that such regulations be "narrowly tailored to serve a
sipificmt govemvslental interest, and . . . leave open ample akmative
chameb for communicatiol~of the ir7formation.""" In practice, though,
content-neutral regulations are nearly always upheld." Modern free
speech doctrine thus creates a rigid two-track system, With one track
leading a h o s t invariably to iwitiidatiw and lrhe other nearly as certainly
to validation. Consequently, all af the important work is done at the cfas-
sification stage.
h alternative to placing such importance on the classificatio~~ wodd
be to focus instead on whether the law truly threatens to impair democra-
tic self-governance, warp the marketplace of ideas, or otherwise impais
free speech vaiues. The drawback of such an approach, however, wodd
be less certainty; A bright-line rule against content discrimination pro-
vides clear guidance to speakers, law enforcement officials, attorneys,
and courts as to what types of iaws arc wonstitutiox~al.In additiol~,the
rigidity ol this rule prevents judges horn smuggiing (perhaps quite un-
consciously) their approval or disapproval of speakers' ideas into the
andysis. The possibility of such judiciahiwpoint discrimination in-
creases the more flexible the malysis becomes."Terhaps for these reasons
free speech doctrine in gencml and the dichotomy between content-based
and col~tent-neutralregulaticms in particular remain quite mechanistic.
The stark differexlee Frt treatme~~t bemeex1 content-based a ~ conte~~t-
d
neutral regulations is, however, mitigated in several respects. M e r e a reg-
dation, although formally content-based, plainly does not "raise the
speciter'" of viewpoint discrimhalion, trhe Court somtimes escapes the
for~xalisticbox in which it has imprisoned itself by simply declaring a
content-based regulation content neut-;ral.4T~nvel.sely, the Court occasiox~-
ally will take a hard look at certaiz~types of cox~tent-neukallaws that
might mask viekvpoint discriminatian, such as laws that turn on the
speaker % id entitya Shililrly, it has sometimes viewed laws that cox~stitute
total bans 0x1 particular media of expression more skeptically than it has
-of-the-mill content-neutral regulations." But the most significant arne-
lioration of the sharply different ways that conknt-based m d content-neu-
tral regufatiol~sme treakd is arhieved by cox~fh~ing the rar7ge over which
the rule against content discrimhation operates. Despite some loose lm-
guagc by the Court suggestjng that all content-based regulations of ex-
pression are su27jec.t to strict scrutiny, there are nurnerous situations in
which content-based restrictions are constitutionallCy unobjection&le.

The Limited Scope r,f the Rule Against Content Discrinzination

The Supreme Court is fond of sweeping proclamations about col~tentdis-
c r k h a t i o l ~"&gutations
: which permit the Government to discriminate
on the basis of the content ol the message," the Court has dectarcld, "can-
not be tolcsated under the First Amendment."""Silnilar is the Court's pm-
noux~cement&at "the most exacting scrutiny'" is applicable to 'keg&-
tions that suppress, disadvantage, or impose differential burdens upon
speech because of its content,"^' Such a rule would provide tremendous
protectiol~to speech, as well as greatly sirnpliiy the task of rtnderstanding
and applying free speech doctrine. Unfortunately for both free speech ab-
solutists and others who seek doctrinal simplicity, these procbmations
are mu& too broad. Speech is far too ubipitous an activity with too
many rtral-world ramifications to perlnit m y such gclneral proxcrjgtion of
contcnt-based regulations. Speech consists not just of political exhorta-
tions or social commentary; it is also a means by which peoplr? c o m i t
crimes m d injure others. Furthermorcj, speech is an essential mechmism
by whkh government manages its own affairs. It is therefore not surphs-
in8 &at in conitrast to the Court" rhetoric, its actual decisio1"ts reveal
many situations h cvhich government rozltinc.1~regulates the content of
spee'h.

Public F o r m Docfri~ze. One importar~tancf clearly articulated h i t

on the rule against content discrimhation is the Court" '"'puic forum"
jurisprudence. Public property that is "by tradition or designation a fo-
rum for public communication" (for example, parks m d s t ~ e t sis) k ~ o w n
in h e speech parlance as a ""public forurn."'" X n such places Be govern-
ment is indeed gmerally forbidden to regulate speech because of i t s con-
tent. tn co~~trast, public property that is not a public forum but that has
been set aside for some purpose hconsistent with unrestricted commmi-
cation (for example, a classroom at a pu'blic university or a faculty mail-
box at a public hi& school) is deemed a "nanpuhiic forum." In such
places the govemment may gmerally regdate th.e conlent of speeclk, in-
cluding its subject matter, if the regulation is "rcasonabltl"~nlight of the
intended puqose of the forum and is not an attempt to suppress a view-
point with which the government disagrees." For instance, limitations
confining speech in the classrooms of state universi.ties to expression rele-
want to the subject m t t e r of the class is plainly conte~~tbased but just as
pairtly constitztt.ic7nal. Accorcdingly, if a m&hemillics instuctor insisted
that a student called to the blackboard confine himself to solving an eyua-
tion rather than writk~gpolitical slogans, no serious First Amendment is-
sue would arise despite the blatant content discrimkation.
:In recent years the Supreme Court has been reluctant to find govem-
ment pmperty to be a puhlic forum. Thus the Court has held &at neitkr
city utility poles nor a sictewalk in h ~ m of t a post office was a puiblic fa-
rum."Y h d in a signikant and cox~tmversialdecisio1.1, a shaqiy diwidcd
Court held a major metropolitan airport termhal to be a nonpublic fo-
mm." By allowing government considerable leeway to regulate the con-
tent of speech on government property d@d.iratedto puvoses other than
puhlic communication or even to refuse pu:blic access Eor comunicative
purposes to such pmperty, the public forum doctrine protects the govern-
ment"~ ability to conduct its own affairs.

Go.uernmeszi:Employee Speech, This same goal is effected even more

directly by doctrine that gives govemment broad power to regulate the
cmtent of the speech of its employees. Unless an employt.efsspeech is on
"'a matter of prlbilic concern" (a category that the Court has defhed rather
narrowly in this context), a government employer has neilrly carte
blanche to rcwlak employee speech so as to promote t-he srnooth and ef-
ficient runnhg of the kvorkplace. For instmce, so far as the First
Amcmdrrrent is concerned, a government employee may he disciplined or
even fired for complaining to other employees about her supervisor, so
h d even when the speech
long as the grievance is not of public iu\terest.%)
is a matter of public concern, the government gexleratly has great= lati-
tude to regulate the co~~tent of the speech of its employees than it does to
impose content-based rest_rictionson the general.public.

Govemmcnl Subsidies, The government also routinely engagecn

content discrimillation when it subsidizes; expmssion. For instance, the
federal. governmenl funds only those projects in the arts that meet a stan-
dard of excellence, a clearly cmttznt-based cfiteriorm."The gcnerd rule is
that when funding speech, government mily take accow~tof content so
long as the fundkg decision is not ""amed at the suppression of danger-
ous icrfeas.'""ndeed, lest the First Amendment outlaw all gwemment
propagmda, the governme~~t may even engage in viewpoirzt discrimina-
tion when it is expending funds to promote its own message. Thus
"[wlhen Congress esta:blished the Natjonal Endowment for Democracy to
encourage other countries to a d ~democratic
t principles, it was not con-
stituiiionaly required to fund a program to tlncnurage competing lines of
political philosophy such as cornxnunism and fascism*"5'

T"%eLack of any General Rule Agmitrst Confenf Discrimz'nafion :If it

were only the nonpublic f o r m , govemrncnt employment, and govern-
ment subsidy cases that readily allowed co11te11t discrimination, it still
mi,ght be said with some accuracy that the First Amendment estahlisks a
general prohibitjon against content discrimination, The authors of the
leadhg constitutional :law casczbook appear to takc. the. position that the
government" ability routinely to engage in content discrhination is lim-
ited to cmtexts in which the government is actkg not in its ""sovereign,
coercive""capacrity but in a ""proprietary"'capacity as an educator, em-
ployer, or patron."me prdblem with this position is that there am numer-
ous instances in which government is constitutionally pemitted to regu-
late the col~tentof speech in its '"sovceigr~, coercive"' capacity. For
instance, the content of speech and the impact it has on its audience rou-
thely form the basis of tort suits (i.e., civil cases seeking compensation for
injury caused by the defendants' w m g h l conduct). Actio~~s for fraud or
misrepresentation always involve the content of speech, as do suits for
defamatim. The Supreme Court has never suggested that fraud and mis-
rcprese~~tation suits are subject t~ strict First endrnent scrutiny, and al-
though defarnatim suits bmught by public oCficials or public figurcls are,
as we have seen, subject to considerable First Amendment obstacles, the
Court has held that the Constitution poses no strictures 01%orcfinary
defmation suits involvillg private parties where the speech is purely of
private concern." "milarly, although in certaill circuvnstances the First
Amendrrrent might bar suits by puhlic officials for ir"tflictionof emotional
distress caused by speech,%no such barriers exist in, actions brought by
private individuals for speech not of public concern. For example, if as a
malicious priiu.7.kJ011es falsely tells Smith that Smith's five-year-old child
was just run over by a car, there would be no First Amendment barrier to
a suit for intentional ircmiction of emotional distress."
A myriad other tort actions commonly regulate speech becaux of its
conter~t.For instance, product liahiliv acti017.s or ordinary negligence
suits c m turn on the content of speech, as when m action is brought to re-
cover damages caused by the publication of erroneous hstmctions for
use of a product.l"%side from tort suils, there is an illmust endless variety
of laws that regulate the content of. speech but that the S t r p ~ m eCourt
easily wouln uphold, agajnst First Amendment clhallenge. These include
securities regulations that forbid the disclosure of certain information rel-
e v w to the wlue of stock; antitrust laws that p r e v m compeMtors from
sharing price information; copyright :laws that ~ s t ~the c tpublication of
infringi1"tg materid; regulatiolw that outlaw sexual harassment in the
w o r y a c e ; or to irtvolse Holmes's hoary example, a law against falsely
shouting, "Fire!" in a theatec Indeed, most of these regulations are not
thought of as even implicating the First Amerndmcnt.
Cdf course, pnrficzrkr appliealiirns of these regulations c m p ~ s e n First
t
Amcmdnrent problems. For instance, an injunction in a copyright suit that
prevents the disclosure of inlportad historical information or a sexual ha-
rassmerlt suit based on a single statement by an employer that women m
not as capable as men to perform certajn jobs wodd raise difficult free
speech issues. But the fact remai~~s that every day copyright and sexual
harassment regulations along with mmy other labvs are routhely applied
to strict the content of speech in ways that do not even presen.t: free
speech concerns. In run-of-the-mill cases, such as a copyright infringe-
ment suit irtvolvillg the pirating of computer software or a sexual harass-
ment suit allegilrg an employer" repeated unwelcome sexual proposi-
tions, no one even thirdss to raise a free speech claim.

Reconfiguring the RaIe Agaifzst

Content Discrimination in Ligkt
ofBasic Free Speech Values
Now that we see that no general rule agahst content regulation exists,
where does that leave our understanding of free speech doctrheXfs it but
a series of unconnected rules governing particular types of speech, m in-
comprehensible rwddle formirng no htdligihle pattern? The situation is
not quite so bleak. If we look closely, we fhd same distinguishing charac-
teristks, We discover that speech m "matters of public concern" is much
more likely to be afforded rigorous proteeion than speech purely of pri-
vate concern, that speech in settings essential to public discourse tends to
be hiight). protected regardless of its content, and that laws having o'bvi-
ous legitimate r e e a t o r y pwposes tend to be wen as consiste~~t
with the
First Amendment despite imposkg incidental restrajwlts on expression.

Speech on Matters of Pgtbilic Concern, 'The First Amendment's pri-

mary aim,'" the Court has declared, "'is the M l protectio~~ of speech upon
issues of puhlic concern."iYThus "vpcech on matters of public issues cxcu-
pies the highest rung of the hierarchy of First A~nendmentvalues, and is
entitled to special protection."""'W have already seen, for instance, that
workptace speek by goverrnrneat empltlyees is eligible for meilningflll
protection from content ~ g u l a t i o nonly if "on a m t t e r of public con-
cern." In cox~trast~ "whe11 a public employcse speaks not as a citizen upon
matters of public concern, but instead as m employee upon matters only
of persmal interest,"' the government has wide leeway to regulate or even
prohibit this speech because of its conte~~t.~"
The constitutional limitations on defamation actions form a sLvnilar pat-
tern, The highest level of protection (the "' malice" standard of Nnu Yovk
Emcs U. Sz~Iliwn)is apgkable to statements &out the offiejd duties of
puhtjc officials for maCtet-s of public concern about puiblic :jgurc.s). The
First Amendment also extends considerable protection to defmatory
statements about pritrate persons, but only i f ghe statement was on a mat-
ter ol: public concern." In contrast, statements about private individuals
that are not of public concern have so far been afford.ed no First Amend-
ment protectim from state defmation laws." SimiZaE-ly, in extendj.ng
strong First Amendment protection agaixlst suits for intentional ixlfliction
of emotional distress, the Court pointew limited its holding to suits by
"phtic figures and pubiic officials,"' and then ox~lywhere the injurious
speech occurrcrd in the "area of public debate.""
'These key phrases-"~II a maMer of public c o ~ ~ c e m i ~n bthe
d "area of
public debate'"---suggest that the s t r o ~ ~presumptio~~
g against co~~tent dis-
crimination is prharily in service of two instrumental values ~mderlying
free speech discussed in the psecedixlg chaptcr: democratir self-governance
ar~dthe search for tmtlrr in thc marketplace of ideas." The pattern of free
speech decisions now begks to make sense: The strong presumption
against content discrinrinationi s psesent when needed to protect the public
discourse by which we goverll ourselves ar~dthough d i r h we build our
culture. It is largely absent, hawever, where the regulation is justified with
refe~nceto an interest un~latcclto the power of speech to persuade peo-
ple about hl,w to see the world. This vecial protection afforded speech on
matess of pwbtic concern is dscl consistent with the noninstntmental val-
ues underlyi;ng free speech, It is this value, deeply rooted in the concept of
democracy, that expl"il7s why free speech d o c t ~ emphatically
e views ihe
0pportunit.y to parkipate in pubtic discourse as m irrci'iadaal right of moral
dimension, one not easily outweighed by consequmtidist concermzs. The
special solicitude that free speech docbinc. s h w s for ~ p e w hon matters of
pubic concern is thus "no mystery.""
The power of t%ie "matter of public concern" critefim to explain when a
s t r o ~ ~presumption
g against conte~~t regutation operaks should not (a.; it
often is) be undercsthated. This criteriorr explains why the First
Amendment immmizes an animal rights pmtestor from mast my form
of contcrmt ~ g u l a t i a nin her attempt to inform the public about the pain
cosmetic testinl; innicts on animds while imposiq no ohstate to laws
forbidding officers of cosmetics firms from sharhg price information. By
the same token, the explanatory power of t h i s criterion should not be
overstated.

Essenfial to 17111'112'~DZ'SCOUPSC. Nearly as important

Speech in Setti-~gs
tru determining when the rule agairlst content: discrimhatio~~ operates as
the type of speech is the setting in. which the speech occurs. For example,
although issues of race and gender are undoubtedly miatters of "public
co11cen1,"" a r ~employer could be prevented from begkv~ir~g every work-
day with a speech to his employees asserting that blacks are genetically
inferior to whites or that a woman"s place is at home and not in the work-
place. Cortversely, that fohn Smith has sore feet it; plairTly not a matter of
public concern. Yet he has just as much right to pass out a pamphlet on
the street corner complaining of this persmal problem as m antjwar ac-
tivist has to distribute leaflets criticizing a war; ir~cteed,S m i h may even
have a constitutional right to use the s m e expletive to complain about
his feet that Mr. Cohen used to conde the Vietnam-era draft.
'These exantples show that in addition to directly ser\iing the underly-
ing values of free speech by bestokving special protectioln to speech on
matters oJ public concern, h e speech d o c t h e also promotes these val-
ues sfvucturalty by establisfiing certain settings for discussion of matters
of public concern-or as this discussion is sometimes refermd to in the
scholarly literature, public Bkcoursc. This phenomenon can most readilly
be see11 i17 the Court's publjc forum jurisprudcmce, which distinguishes
between public propere that is "a forum fos puhlir: ctl~nmnnicution~' TLnd
public property that is not a public forum."-As we have seen, g o v e n ~ m e ~ ~ t
it; ge~~erallydisabled from regu:iat-ir.lgthe content of expression in a p u b k
forum. Such a wholesale, structural approach to speech protection has an
internsting consequence: If expression occurs within a medium dedicated
to public discourse, even exprest;ion not 011 a miltter of puhtic concern
will tend to be treated as if it were, This phenomenon is malogaus to a
passenger's being bumped up to first class because the airline baa over-
sold ihe coarh seats. Al/hough trhe passengw paid only for a coach seat,
she will usually be given the same treatment as those who have paid for a
first-class seat.68
As is true with much of free speech dockk~e,ihe reason for such over-
protection is prharily pragmatic. In contexts manifestly dedicated to ac-
tivities other than public discourse, such as the government workplace,
trhe doctrine allows ad hm determination of whetber speech is on a mat-
~ ~ .i"n"settings dedicated to public discourse, there
ter of public c o ~ ~ c e r But
is good reason to avoid such ad hoc determinations. The line between
matters of public and private concern cannot always be psecisely d r a m .
Whert3, by &finition, the instmces of speech on public concern are r~u-
merous, as is the case with speech in a public fomm, even a small rate of
error in classifying matters of pu:blc concern as purely prkate speech
could rwuit in significant stifling of public discourse. f r addition,
~ ad hoc
determiurations could mask antaganism (or favaritism) toward the sgeak-
ers9oints of view. It is therefore safer to give a speaker lamenting m is-
sue of purely private c o n c m in a public forum the samcj protection as
someone speaking on an issue of public concern.
A similar phenomenon can be &served in media essential to public
discourse. For instrance, there is no First Amenc[ment right either to
arrange or attend a cocfcfight in states that have banned cockfighting. But
once tEre event is captured on videotape, significant First AmeIldment
protection attaches both to its distributior.2 and viewing. Thus the protec-
tion afforded particular media becatrse of their connection with public
discourse often results in protection of individual instances of expression
in that medium, even if these individud instar~cet; themselves are not part
of public discourse."'
This phenomena11 has an h p o r t m t bearing OII why expressio~~ whose
p r h a r y puqose "nd effect is sexual arousal rather than contribution to
democratic self-governance or the marketplace of ideas =mains highly
protected, suhect oniy to a nanow obscenity exception. Since the media
in which pornography appears-books, magazines, film, and the
Internet-arc! essential to ptthXic discourse, pornography tends to partajze
of the protection afforded these media, This phenomenon also explains
why na~~ideational art is highiy prok&t"d. Although ahskact art and sym-
phonic mtrsic have little direct comection with self-governance or the
marketplace of ideas, many types of art are highly intellectual or overtly
political or both, Because art in ge11eral is thrxs connected to demcratic
self-govemamce and the marketplace of ideas, First Amendment protec-
tion extends across the board, even to art foms that contribute to neither
of these hnctio~~s.?'
This palter11 of free speech decisions, granting rigorous protection
against content discriminatim to certain speech in pmticular settings,
suggests that free speech doctrine can he ut;ef"uilyviewed as constructing
a realm dedicated to public discourse in service of democratic self-
governance m d truth seeking in the marketplace of idea^.'^ Within this
realm tbere are 170 verities-every pmpsition is open to question. Hem
even tfie most minjnnal, civility cannot be enforced, for experience has
shown that only in such m unconstrained world c m the ultimate deci-
sionmakers in a democratic society freely exmine and discuss the rules,
norms, and c d i t i o n s h t constitute society; o111y under these condi-
tions will decisions reflect the uncoerced wilt of the peoptc. rather than the
preferences of those in power, hnd only in an environment in which any
idea cm be expressed cm there be that never e ~ ~ d i n search
g for the truth
upon wf-tjchcultural, poljtical, and material progrr.ss depends. Xt is in this
realm that Justice Marshall's declaration that "our people are guarmtred
trhe right to express any thought, free from g w e m t censorsQf1holds
SWay7?
But precisely because public discourse in the t"nited States is so
stra~~gly protected, the realm dedicated to such expression cannot he too
broadly corrceived. Not every settkg cm be dedicated to put7jc discourse
if anythhg else is to be accomplished. Qvernment must also be able to
effccbate results yielded by lrhe democratic p m w s . Although "'u~"tMib-
ited, robust, m d wide-open" expression may be essential ta democratic
self-governance, such speech can also ihibit government f r m c a v i n g
out the decisions reached through this discourse. If there could be no 1 h -
its on the vituperations with which government employees could com-
plain to each other about their supervisors or on disagreements about the
goals of ihe organiz,i.ltion in which they work, accompiishmer~tof the
tasks at hand m?ight be impeded. Simitnrly, personally insdting ex-
changes in the classroom at a public uIliversity can disrupt the learnhg
process-the primary purpose for which Lhu state has declicated the
premises. Accordingly, in seteings m t dedjcated to publjc discourse
where some specific governmental puTose is bath manifest and perva-
sive, such as courtrooms, goven~mentoffices, and public classrooms, and
when that purpose would be frustrated, if government could nor control
the contcrmt of expressim, government will generally have considerable
leeway to regulate lrhe content of expressio~?r.'"ndeecd, ir.1 some such set-
tkgs even kriewpokt discrimination may sornet-imesbe per~xissi[ble.Thtrs
m affimativc action officer at a public university could be fired if she
persisted in expressing an anti-affiirmatke action point of view in her of-
ficial deahgs with the public. Similarly, an FBI agent assigned tn conduct
backgroud checks on presidmtial appointres could with no hindrance
e11cime11t be prohibited from wearhg while or1 the job a
buttm cdling for the ixnpeacdnt. of the presi.dent.

The Stcspiciolasness af Clze Reg~latr'orz. In our attempt to discover

when a stmng rule against car~tentdiscriminatior~operates, we have so
f a identified two consideration^ of paramount importance: the subject
matter of the speech (whether it is a topic of public concern) and its con-
text (whether the speech occurs in a setting dedicated or essential to pub-
lic discourse). T%ereis, howeverpa third criterion that, albeit k p o r t m t , is
harder to quantify and thus often remains unarticulated in the case law
Some regulations by their very nature raise the specter that they are moti-
vated, at least in, part, by a purpose contrary to core free speech valt~es.
Other regulations are the type that dispel such suspicion. For instance,
rcgutatior~saimed at speech are usual:iy more 1i:kelyto be motivated by an
impermissible purpose than a law aimed at conduct and that burdens
speech only incidentally. The antitrust laws regulate the contmt of what
business competitors can say to each other, hut because these laws are
aimed at anticompetitive practices rather tltm expression, this regulation
is not seen as presenting First Amend~nentissues. Conversely, although
ach~owledgingthat burning a cross on amther" property could consti-
tutionally be prohibited under any number of laws aimed at conduct (lor
example, trmpass, arsozr, and mtiterrorism laws), the Court in R.A.V.
CIfy nf St. I;'ual invalidated a law used to cor~victa juve~~ilefor burning a
cross on a black family's lawn because the law was aimed at expression
(itbeit unprotected q ~ s S i o n ) . ' "
Even if a particular regula.eion expressly targets the content of speech, it
will not ordinarily be seen as raising serious free speech issues if it is part
of a larger regulatory scheme a h e d at conduct. Securities laws regulal-
ing lfie communication of insider il7formation that couid affect the value
of stock is a good exmple of such a regulation. Shilarly, because of their
comection to a stabtory scheme intended ta curb discrhinatory con-
duct, regu:btims prohibiting sexualiy harassing speech in the worlrphce
are not usually viewed as content-oriented regulations subject to strict
scmtiny." There are in adciitior~laws aimed primarity at speech and not
part of some larger regubtion of conduct that nonethdess do not raise
First Amendment concerns. Although copyright law regulates expres-
sion, the Obvious m d wldisputed pufyose of the law-pmtection of intel-
lectual property-di~ds any corlcem that t-he law was enacted to sup-
press ideas. And although the application of copyright law ordinarily
r e q u i ~ san examination of the content of expression (e.g., determining
whether one work infringem~other),the usually yuite mechazical naturc.
of these inquiries and the nonideological context in, which they generally
occur tend to negate the possillli.lity that government might use copyright
law to suppress ideas it finds dangerous or offe~~sivcr.
Underlying the emphasis that modern free speech doctrine puts an the
nature of the ~ g u l a t i o nis an abiding concern with ,pouemme~zt'spldrpose in
regulating speech. Indeed, as we have seen, key to determining if a rew-
latiun is content neutral or content based is whether the regulation c m be
justified by some speech-neutrd purpose. This concern with purpose is
why a lawsuit to enjoin a rap group from performing 'Top Killer"' on the
grounds that it infrhges copyright would not present a free speech issue,
whereas a suit to prevent this same performance because it promoles dis-
respect for the law or even because it rrright endanger the h e s of police
officers would. Preventhg goven~mentfrom regufilting speech for some
illegitimate purpose reflects the basic noninstrumental value af free
speech that government must treat people as autonomousl rational indi-
viduals capable of m k i n g up their own minds about which ideas are
good and which are evil*
:In s u m a r y although :I can offer no formula that will unerringly pre-
dict the situations in LVhich ihe mle against content discriminatior~ap-
plies, I have suggested that there are three important criteria for makhg
this determination: (1.)whetfier the speech is on a matter of p u b k con-
cern, (2) whefher the speech occurs in a setthg dedicated to public dis-
course ar in,a medium essential ta such discourse, and (3)whether the na-
ture of the regulation raises or dispels suspicim that it has been enacted
for some p w p o x "contrary to core free speech values. But more important
for our purposes than idmifying the exact contexts in kvhich the rule
against cmtent discrimination operates is the ~c0gnitiol-tthat despite
somc. hose language in Supreme Court opinions, no blanket rule against
content discrimination exists. Rather, a strong presumption against
content-based regubtions operates only within a relatively narrow band
of cases. As we shall see, this realizilliorr proves particuiarly pertirlent to
evalazatilng the radicalskcharge that in denying an exception for hate
spee'h. and pornography but dlowing numerous other cmtent-based ex-
ceptions from First e ~ ~ d m cpmtection,
nt modern free speech dockine
discriminates against the interests af mhorities and women.
This page intentionally left blank
 Its Application to I-Za te Speech
and Pornography Regulation

Mmy radical critics ack~owledgethat ar7y atterrrpt to ban the expression

of racist ideolagy or to prohibit sexually explicit material dentearkg to
women is unconstituliond under c u r ~ n free t speech doctrine. hdced,
the essence of radirnl attack on t h i s doctrin-that it systematically un-
dervalues tlte i n t e ~ s t sof women and people of color-prcsumes this re-
sult. Despite &consistency with their larger cXaim, however, some radical
critics maintain that there may be room under currctnt doctrine for far-
reaching restrictions on hate speech and pornography demeaniq to
women. Some maiu\stream commentators as well have argued that cur-
rent doctrhe may pernit such speech restrictions. But these arguments
are rea[ly little more ihan wishful thinki~lig,for it is about as certain as
anythhg c m be in constitutional law that broad hate speech or porno-
graphy bms am urnonskihational.
I want to emphasize at lrhc outset that in cIahir"tg &at broad pm""hibi-
tion of hate speech and pornography kvou2d violate the First Amendment
as cumentb interpreted by American courts, E am not claiming that this
interpretation is either wise or correct. Whether doctrine should allow
such restrictions is a much morcj contestable question, one that is the fo-
cus of Part 3 of this book. My assertion here is purely afLIscriptivef namelyt
that such laws wodd be declared unconstitutional. :I aiso want to cmpha-
size that my claim of unconstilutiona1ity is iimited to laws that would
broadly ban the dissemination of racist ideas or pornography, not to more
specific measLtrcs limited to particular contexts.

Much of the discussion af the constitutionalit-y af hate speech regulation

suffers from a failure to specify the type of regulation under discussion.
In d&ates about the regulirtio11of ""bate speech," it is often impossible to
tell whether the discussion concerns a broad ban an all public expression
of racist ideas or a much narrower regulation., such as campus speech
codes or pr0hi:bition of racist fighti17g W O ~ ~ Indeed,
S . sometimes even
hate crinze legi?ilatian-penalty enhancement for racially motivated
crimes, such as murder, assault and arson-is indiscrimkately thrown
into the hate sgeech pot. The problem with failing to distinguish broad
hate speech regdations from narrower ones, and both types of hate
speech regulation from hate crime legislation, is that free speech doctrhe
has a very different bearing m each type of regulation. In this chapter :I
focus p"i"""i1y on propom1"tPIat would generally ban the exp~ssionof
racist ideas and demonstrate why such laws are mconstitutional under
cument docthe, At the end of the chapter, :I discuss the much doser con-
stitutiond questiclr~presented by rn0l.e iimited reguiations of racist ex-
p ~ s s i o nand explain why hate a i m legisliztion is consistenl. wit21 free
spee'h norms.

The Unconstitutionality ofa General Hate Speech Ban

Sbce the trltirnate question here is the constitutionality af a general ban
on hate speech, it kvould be hellpful to get examples af such legislation an
the table. Because nothhg of this sort is to be found m the U.S. statute
books, :l use as e m p l e s a Canadiar~hate speech provisio~~, an inter~~a-
tional convention, and a proposal drafted by an American law pmfessor.
Section 319(2) of the Cmadim Criminafi Code provides that "[clvery one
who, by commw~icatingstatemmts, other than in private cmversation,
willfully promotes hatred against m y identifiable group" is guilty af an
offense purrishable by up to two years' imprisonment. Article 4 of the
Inter~~ational Convention 011 the Elimination of All Forms of Racial
Discrisnkation requires signatories to "'declare as an offence punishable
by law all dissemination of ideas based on racial superiority or h a t ~ d ,
[and] incitement to racial discrimination.'WMari Matsuda, a leading pm-
poneM of hate speech pn,hibition irt this corntry, proposes bmning m y
speech whose "message is of racial inferiosiw . . . directed at a historicallq.
oppresxQgroup [and] is persecutory, hateful, and degr;lding."t
 From a doctrinal standpoint, the most important thing to recognize
about these p r w i s i a ~ is
~ sthat they are all viewpoinl-hased ~striclrio~~son
highly protected speech. Anyone who wants to promote racial equality
and ethnic diversit-)iis free to do so; hose who want to convey opposing
points of view may not. As morally reprehensible as hate speech is, it
nonctlxdess expresses a point of view M O T C ~ ~much V ~ Tof, the speech pro-
scribed by these provisions would under American doctrine be consid-
ered core politicaf speech. Co~~sider, for example, the fallowiin$ expres-
sion at issue in two prosecut.ians under Cmadak hate speech law:
[Tlhe allegation that 6 million Jews died during the second world war is ut-
terly mfounded. [It is a] brazen fantasy . . . marking with eternal shame a
great European nation, as well as wringing fraudulent monetary compensa-
tion from themizAmerica is being swamped by co"I3ure"d who do not believe
in democracy and harbour a hatred for white people; because Zionists dctmi-
nate financial life and resources, the nation cannot remain in good health be-
cause the alien community" interests are nctt thctse of the majority; Hitler
was right. Communism is Jewish."

Racist speech such as this, although exp"~-"s"i"g an ugly twisted view

of the world, does nmetheless express a worldview As we have seen,
speech on matters of puhlic concern "occupies the highe" rrung of fhe hi-
erarchy of First Amendment values, and is entitled to special protec-
tion.'13 h ~ tod ihe cxtent that: such speech occurs in highly protected me-
dia, such as books, pamphlets, cable televisior~,the Internet, or in a
ptrblic forum, such expression is even mare certain to be considered
highly pmkcted speech. By the same token, not all racist speech is
highly pmtected. Face-to-face racial slurs, ft,r insta~~ce, or ewm undi-
rected racist remarks in the workplace would not be afforded rigorous
First Amendment protection. But any gtzmzeral ban on hate speech, such
as thc. t h e e examples cited above, would encompass a great deal of
fiighly prokcted speech. For example, ill1 of these provisions would ap-
ply to a member of the American Nazi Party who spewed venomous
ideas in the speaker%corner of the park or a Klan member distributing
pamphlets on the street corner, not to mention the racist tracts sold in
bookstores or published on the htemet.

Per Se Invalidity, As discussed in. Chapter 3, content-based restrie-

tions of speech on matters of public concern occurring in highly protected
settings are suhject to ""strict ~cmtiny.'~
And as we have seen, once it has
been determked that a speech regulation is subject to ""strict scrutiny," it
is a virtual certainty that law will be invalidated, But if faced with a gen-
erat prohibition of l-tate speech, t%teCourt might find even the statute-
killing strict scrutiny test too weak, Rather, it is likely to declare such
broad viewpoiRt-orimted mstrictions orz public discourse per se m m -
~titutional.~
As a viewpoint-based restriction on public discourse, a broad hate
spee'h law would be even more constitutionall)i suspect than the typical
cmtent-oriented regulation. A general hate speech ban cornmits "the car-
dinal First Amendment sh"-viewpoht discrhinationehAs the Court ex-
plained in a 1995 decisjon, ''[when] the g o v e r n a n t targets not sulrtject
matter but particular vkws t&n by lrhe s p e h r s on a subject, the viola-
tion of the First h e n b e n t is all the more blatant." The government
thus must "&stain from regulating speech when the specific motivatinf:
ideology or the. opinion or perspective of t-he speaker is t-he rationale for
the rt.stri~tion."~ It m y well be, then, that the Court would hold any
broad viekvpoht-discriminatory restriction on public discourse to be in-
consistermt with the very essence of U.S. free speech dockjne,"
Alternatively, the Court mlght hold a broad hate speech b m unronsM-
tutional per se because it is inconsistent with the ixlcitement test estab-
lished in Kranlkinbrtrg v. ilhio.VBrnnde~rhurgholds that advvcacy of law vi-
olatio~lcan he p u ~ G s k donly if such advocacy constitutes incitement "to
imminent lawless action" and then only if ""tkely to incite or produce
such action." Racist sgeech cm, of course, incite imminent lawlms con-
duct."' Such expresSim could be punished consistent with Rrandelzbzirg if
it could be shown that the expression was likely actually to catrse irnme-
diate lawkss clction,19uta geneml hate speech ban covers murh more
than incitement likely to lead to hwb~akillg.. It includes urzy racist ex-
pression, ixlcludhg speech that does not advacate action, illegal. or other-
wise, hut merely tries to persuade others to see the world from the racist's
warped perspective. For instmce, each of the three exemplars of hate
speech quoted, above would outlaw the perenniat complainl of h e r i c a n
racists, expressed in different ways but with the same central message,
that certairl minority groups are responsible for the decline of American
society. But such ravbgs da not directly advocate illegal. activity, nor can
it fatirly be said that such expression will lead immediate& to acts of
discI..irnir~ation,
Significantly' however, a freqently cited justificatiom for hate speech
bans is that racist propagmda, whether or not advmtifzg &gal acb, ul-
timatety leads to illegal discrfminatory acts agairlst minorities, including
violence. But if Nmnda.).rbtlrgprevenl.5 the state from punishing speech that
advocates lawless conduct short of incitement, it follows that the state
may not &&id speech that does not even expressly advocate ilkgat con-
duct, at least not under the rationale that such speech causes illegal activ-
ity. Rnd to the extent that this b m is justified as preventhg discrimina-
tory activity that is not illegal, it is all the more inconsistent with
B~ar-rdenhzirg.~~
More generally, E do not believe that the Court ever memt
for the strict scmtiny test to apply in areas governed by a specjficrule. For
instance, strict scrutiny wouid m t be applicable to a state law a1lowin.g
public offjcials to =cover for defamatory statemmts about their officid
conduct if these statements were negligently made. Xiather, because such
a statute would confiict with thC "mi\llceMrequirement estahliskd in Ne-iv
York Times z? Strlll'van, it would be per se unconstitutional. Ely the same to-
ken, any law that sought to ban public discourse on the gmund that it
leads to iltegal activity slhould be ar~alyzednot under strict scrutiny but
under Bmndelzhrarcy.

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 Uncons-Eitutiona af Gvou);r Libel Laws. AlChou@ a total ban

on ihe exp~ssionof racist ideas would p b i y be inco~tsistentwith case
law, a 1952 decision, Kmrjlarnais v. Illinois, did uphold the prohibit.ion of
one parrcjcularly pernicious categofy of hate speech-racial defamation."
foseph Beauhmnais, the president of the White Circle League, had circu-
lated a leaflet containing a petition to the mayor and city council of
Chicago calling for racial segregation, The leaffet stated that if "pasua-
sion and the need to prevent thc white race horn becoming mo~~grelized
by the negro will not mite us, then the aggressions . . . rapes, robberies,
hives, guns and marijuana of the negro, s m l y will." Beauharnais was
cmvicted w ~ d e an r Illhliois stahte prohibiting lrhe publication of any mat-
ter that "portrays depravity, criminafity, ttachnstity, or lack of virtue of a
class of citizens, of any race, color, creed or religion which . . . exposes
[such] citizens . . . to c o ~ ~ k m pderisio~~
i, or oblopy.'"
:In a 5-4 deci?jio~~, the U.S. Supreme Court upheld the conviction.
Writing for the majority; Justice Frmkfurter held that libelous utterances,
whether directed at individuals or 'Udcsipated callectivities," were not
"'within the area of constitutionally pmtected speech"' and thus codd he
prohibited cvjehout a particularized sho'~vkg that the speech was likely to
cause an imminent danger of h a m , In addition, he rcjected the argument
that tmth was a defense to a charge of group libel, holding that it was not
unconstitutional to require a defendmt c-targed wilh crin?inal libel to
show not only the truth of the statement but also that it was made "with
good motives and for justifiable
As an hitial matter, it should be emphasized that Beaziharaak does not
support the constitutionality of a general hate speech ban, Much hate
speech is not legally defamatory "fi, he defamatoryI a statment must con-
tain a factual assertion darnagixlg to the reputation of m individual, en-
tity or group. Consider, for instance, the m h i n uttered. by the Ku Klux
Kfan leader in Brundmburg: "I $&eve Lhe I7igger should be retunled to
Africa, the Jew returned to Israel*"An ugly sentiment, indeed, but one
that does not make a factual assertion about any group.
More fundanterntal, the profound dxtrinal char~gesthat have occurred
since Beazti4rar~zr;al'swas decided in the 1950s has robbed the decision of its
vitality, Rearrlzar~znisis a product of the now largely discredited categorical
exclusio~~ methodology, discussed in detail in Chapter 2. In the 1942 deci-
sion of GF2aplinsky a Mtrw Hampshirr., the S u p ~ m Court
e declizscld that like
"fiighthg words,""libelous statements were complekly bereft of constik-
tional prokctiox~.Ten years later, Beauhamaitj a r p e d that the statements
in, his petition to city officials could not be punished without proof that
they presented a "clear and present danger'kof violence or law viohtjon.
Invoking Glzapli;izsk:jfs categoric& hitnishme~~t of libel from the realm of
First Amendment protection, the Court brushed this argument aside. By
the 1960s, however, libel laws had become a powerful weapon in the
han& of souther11 ofi-icials in their atkmpts to suppress protest against
racial segregation. Alert to the r e p ~ s s i v epotential of the Chnpii~.rskyap-
proach, the Court afforded libel substantial First h e n d m e n t protection,
In New XI& Times .E? Sullivn~,lfie Court, imposing stringent constitutional
restrictions on libel suits by public officials, held that libel could no longer
claim '"alismanic immunity from constitutional limitations." "all-
bzarnais's basic doctrinal u n d e ~ i n n i n ghas thus been swept away.
T%e leitmotif of New I/rwk ?-imt7s21. Sr-rtlz'vanand its progev is that lihel
laws are unconstitutional ta the extent that they impede "unfiihitcd, ro-
bust, and wide-open'" debate on puhlic issues. Group libel laws would
obviously have a considerable chillhg effect on public debate about mat-
ters of race. There are also more specific ways in which Keaz~bzamaisis at
odds with m a d e n ~doctrine. For one, even if libel well.e still considered
categoricaHy mprotected speech, a gmup libel l w would r m afouf of
RIA.Kfsprinciple that even regulation of unprotected s p e e c h t ~ sbe t
content neutral. The constitutional fault that the Court found with the
fighting words profnibition in IZI.A.L! was that it did not- crimirnaiize all
fightiz?g words but only ones with racist content. Similarly; the law in
Realaulrcrrt~aisdid not crimjnalize all libelous statements, nor even pmscrlibe
libebus refere~~ces to classes or groups of people generdly, but sis~gied
out racial and religious libel for prohibition.
More basically, the Court would likely hold that a h o s t all of what pro-
ponents of hate speech regdatior~war~tto pur~ishas group defm"tion
cmnot constitu"ciartal1y be pulnished as such. Modern First Amendment
doctrine reqtlks that s t a t a e n t s on matters of public cmcem must be
provable as false before there can be liability for defamatimL-" Consider
Beauharnais" statement about "itggressions . . . rapes, robberies, hives,
g m s and marijuana of the negro." If it means that all African hel-icans
are aggessort;, rapist.;, robbers, ard knife- and PI-toting pot smokers, the
statement is demonstrably tmbelievable to any reasonable person m d thus
not libelous. I f it means that some blacks are rapists, robbers, and so on,
the11 this str?teme~It is demo~~strahty true, as it w d d be about some mem-
bers of m y racial or e t h i c group, and is, agah, not libelous. h o t h e r possi-
ble interpretation of Beauhalrtais"~statement is that per capita more blacks
in Chkago at that Clime engaged in these ac.tivities &m did whiks. U ~ ~ d e r
such an interp~talion,this statemenl is arguably falsif-kbleby ~ferenceto
empirical data. Unfortunattzly, stattzments about any subordinattzd group
ghettoized in large erican cities tru t l ~ eeficrct that they dispmportion-
ately engag-tl in crirne amd drug use may well be true. And even if ulti-
mately proved false, such statements would probably "o based on enough
data to avoid liability under the constitutional ilnmunity afforded false
statements under New York Ernes 21. Sullivarr m d its progeny'"
But surely Reauharnais did not-htend merely to m k e a dry, descriptive
stateme~~t about the condition of er-city blacks, and just as surely that
was not the gravamen of the otfense h wt-rick he was convicted. If an
African h e r i c m mhister had petitioned the mayor of Chicago for more
aid for the black co unity and cited the high and growing in'ide~~ce of
rapes, rrabberies, m d marijuana use among blacks hsupport of his plea, it
is inconcekable that he would have been pmished for these statements,
even if they trurned out to be false according to the best data wailahle and
even if the minister was recuess in not consultbg these data.
What Beauhamais most probably meant to say, m d what the prosecu-
fion plainly assumed he meant, is ehat hhcks are irzl.lmnt(yprone to vio-
lent criminal activity m d drug use. Thus disagreement with Beatrharnais
and his ilk is not su much about the existence m nonexistence of particu-
lar data but rather about the meaning to be attached to the data. Bigots
believe &at certain groups comnnit c r i m s because that is their nature;
others believe that gnndhg poverty with no hope of escaping it, together
with a long and contjnuing history of discrilnjnation and in~ustice,will
cause crime in any community. Beauhan~aisbelieved the solutior~was
state-decreed segregation; others believed that the remedy was integra-
tion. Beauharnais" hate-driven conclusions may not be logical. or as em-
pirically supportable as nonbigoted beliefs, but the real evil is not that his
conclusions are factunlly false but that they are a procfuct of hiztefd, racist
ideology..""As such, however, these statements are not thcj type of asser-
tions that the Supreme Court would likely charactaize fa1si.fiabte state-
ments af fact. Rather, the Court woulld probably f h d such statements to
be '"deas," and u d e r modem First Amendment jurisprudence "there is
no such thing as a Mse

Using a model law drafted by Catharine MacKinnon and Andrea

Dworkin, Indiampolis in 1884 enacted an ordinance imposing civil
sanctions for the distribution of scxually explicit material demaning to
women. The ord.inance prohibited the distribution of "'pornography"
which was defincd as "the graphic sexually explicit subordirsation of
women, whether in pictures or words.'"""
U.S. district judge Sarah Evans Barker invalidated the ordinance on
First Amendment groundSFand the city appealed. Writing for a panel
of the U.S. Court of Appeals for the Seventh Circuit, Judge Frank
Easterbrook affirmed Judge Barker's decision in American Booksellers
Asstz. v. Mzrdllttt." T k opinion begins by explaining that the ""pmog-
raphy"' proscribed by the ordir~amewas comiderabiy different from
"'obscenity," which is not protected by the First Amendn,enC. U'nljke
the obscenity standard, Eatiterbrook pointed out, the Indianapolimor-
d i n a ~ ~ dc ew s not define the prohibited material based on its appeal to
the ""prurient interest" or its affmsiveness as measured by "commtr-
nity standards" or its lack of "literary, artistic, political, or scientific
d u e . " But most sjgl7jficant, he found the ordimnce was viwpoint
discriminatory:
Speech treating women in the approved way-in sexual encounters
""premised on equality "-is lawful no matter how sexually explicit. Speech
treating women in the disapproved way-as submissive in matters sexual or
as enjoying humiliation-is unlawful no matter haw significant the literary
artistic, or political qualities of the work taken as a whole, The state may not
ordain preferred viewpoints in this way The Constitution fcjrbids the state to
declare one perspective right and silence opponents.

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?'

Often overlooked in discussions about hate speech and pornography is

that although free speech doctrine does not permit broad suppressim of
such speech, it does allow some narrowb focused regulation. This is par-
tricularly true of porrtogmphy. Indeed, modem free speech doctrine al-
lows sexually explicit speech to be regulated in, bvays that would be un-
thinkable with respect to any olher for~nof expression, To begin with,
there is the obscenity exception itself, which allws "hard-corc" prnog-
raphy to be suppressed because of its content m d with no specific show-
ing of harm. There a m of course, other types of speech that are categori-
d l y excluded from First Amertdrrrent protection, such as fighting wods,
perjury, bribery; threats, m d still to same extent defamation. But (with the
pos"ibie exception of fighting words, whose continued status as unpro-
tected spmch is doubtful) the harm caused by these other fltms of ex-
pression is palgahle. More irnyortar~t,u~llikeother f o m s of unprotected
speech (again, with the possible exception of fighting words), the exclu-
sion of Obscenity because it is "ppatent%yoffensive" when measured. by
"co~~temporary community standads""smacks of the very viewpoint dis-
crimhatim himical to core First Amendment values.
As we have seen, although sexuaily explicit but nmobscene speech
may not be totally banned, it may be regulated in ways that impose sub-
stantial burdens on those wishhg to f'trmish or receive this material. For
example, &eaters showhg '%dult"bmtllvies may be subjected to onerous
zoning rewlatio~~s, and "indecent" "material may be banned from radio
m d over-h-air telwision at t i m s chitdren may be in the audience.'"
Similarly, states may forbid lrhe sale of even "'soft-corc?""pon~ographyto
minors and more genc.rai:ly may regulatr;. t-he distributio~~ of sexually ori-
ented but rronotrscene makrial so as to keep cf-tildrenfrom gai,njng access
to it, so lmg as these regulations do not unduly interfere with the rights
of adults to obtain the r n a t e ~ i d For
. ~ ~this reason, such expression has
been referred to as ""lower-value" "speech.
Etle Vtl of the Civil Rights Act of 1964, which prohjbits racial and gen-
der discrimir~ationin the workplace, has been interpreted to outlaw
racially harasshg speech. For instmce, a number of cases have held that
persistent use of the word "nigger'hr similar racial slurs by a supervisor
tru refer to a black employee violates Title VfI.lKTitle VIX has atso been in.-
terpreted to outlaw persistent or severc? sexzaatfy harassing speecb, in-
cluding, under certain circumstances, the display of pornography in the
work place.""^ the U.S. Comt of Appeals for the Third Ciscuit: hizs ex-
plained, "obscene langtrage and pornography could be regarded as
highfy offensive to a woman who seeks to deal with her fellow employees
and clients with profesSioni7tl d i g ~ i t yand without the barrier of sexual
differentiation and abuse."'"
There are stiif a nurnber of interesting and unanswered questions
raised by the use of Title Vlf a r ~ dsimilar state laws to bar raciaIly or sexu-
ally harassing speech in the workplace. A few have suggested that even
relatively limikd applicatim of these laws to racist speech, pornography
and other forms of sexually hwassing q r e s g i o n is un~onstitutional.~So
far, however, courts, inclzrdhg the Supreme Court, have shown little con-
cern that these regulatbons have been or will, be applied in vidation of the

In considering the possale conflict between workplace antiharassment

regulations and the First Amendment, it is importmt to distinguish two
ways in w:fiich such a clash might arise. One way is that the law might be
too broadly construed. Suppose, for jnstance, a Title VXI suit against an
ernployer for occasionally expressing his opjnion that women should not
work full time outside the home until. their children are grawlT or that
blacks are geneticaHy not as intelligent as whiles. Or suppow that a fe-
male employee sued an employer for having a paint-ing of a nude woman
in his office, The Supreme Court would probably avoid the First
her7dmc.M issues in these cases by h d i n g that such "isolated" inci-
dents are neither pervasive nor severe enough to constitute harassment
actionable under VE, But- if forced to reach the First Amendsnrzznt is-
sue in such a case (for h ~ s t a ~ ~ifc ae ,state suprcme court construed a state
regulation as auaawing such expression), the Court might well. find the
apylieatio~zof the law unconstitutional,
h t E t c r way Title VII or similar state provisio~~s might he thougbt: to
c d i c t with the First Amencdment is that they are contel?t based and thus
aluluys prtrsurnptively unconstitutional when applied to speech. Title VII,
for instrance, does not outkw a11 harassing speech but only e v e s s i o n
that harasses on the basis of race and sex (as well as religion and national
origin). This might seem to violate K.A. K's holding that even when regu-
lating unprotected speech tt7e laws may not single out particu:iar content-
based categmies for profiib2ion. Realizkg that this mtiselectivity prin"-
ple put tlne constitutionality of Title Vll's application to racially and
sexually harassing speech in doubt, Justice Scalia in R.A.L"; issued the fol-
lolvhg caveat:
[Sjince words can in some circumstances violate laws directed not against
speech but against a>nduct(a law against treason, fcjr example, is violated by
telling the enemy the Nation's defense secrets), a particular content-based
subcategory of a prc3scribable class of speech can be swept up incidentally
within the reach of a statute directed at conduct rather than speech. Thus, for
example, sexually derogatory "Yighting words," among other words, may
produce a vicllation of Title V11% general prohibition against sexual discrimi-
nation in empllctymnt practices.4'

: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

A basic tenet of modern free speech doctrine is that government must be

ideologically neutral in ~ g t t l a t speech.
a 'This ~quirennentol neutsatity
extends as well to the judiciary, including its formulation and applicalion
of free speech doctrine. Radicd critics allege &at free speech hockk~eis
in,fected wjth the very disease it is suppowed to prevent in that it system-
aticallq; discriminates against the interests of women and minorities. This
it; a sclrious charge that should he carefuily examined.
Radicals make two quite different claims of discrimination, bath of
which X contjider in detail here in Part 2. Chapter 5 is devoted to malyzjng
specific claims of discrjminatiox~,such as Lhe charge that doctrine recog-
nizes numerous except-i;ansto the free speech prhciple to protect the eco-
nomic interests of the rich and powerful yet refuses to afford sirnilar ex-
ceptrions to protect the interests of w m e n and minorities. Chapter h
considers the deeper allegation that free speech doctrhIe is now and has
always been m enemy of social progress and equality because it is m es-
sential part of a strucrturrt that maintains the status quo and al:l its in-
equities.
This page intentionally left blank
Radicals claim that contrary tcr the mythology propagated by civil liber-
tarians, free speech doctrine is riddled with numerous exceptions that
when cri2icail.y examhed arc? found to protect the interests of powerful
forces in. society. But when peaplle of color and women want hate speech
and pomogrqhy exceptims in order to defend their inttzrests, they are
told that ihe First Ame~~drrternt permits no exceptions. A related claim of
discrinnination is based on the text of the Constitution: Radicals point out
that alttnough t%ie First Amendment is just one part of the Constitution,
free speech doctrine acts as if it were the only r e l w n t constritutional
norm. 1x1 particular, they assert that hate speech m d pornography impli-
cate the E y u d Pmtection Clause of the Fourteenth Amendment but that
free speech doctrine ignores this countervaiiinf: constitutional norm.
Careful analysis of these indicments shows that they are, on the ~ v h ~ l e ,
unfounded.

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.'"

A major obstacle to banning hate speech consistently with the First

h n d m e n t is that m c h of this expression is political propaganda.
Indeed, it is precisely because this propqanda is inte~ldedto persuade
others ta think about minorities in hateful, distorted ways that propa-
nents of hate speech regulation want to ban such material. In contrast, the
primary purpose and effect of pornography is not political persuasion
but sexual arousal. Accordingly; several commentators, including
MacKinnon, have argued that pornography is not aliozrt sex; it is sex.
"[Slocial life,f"MacKinnon accwately infoms us, "is M l of words that
are legally treated as the acts they constitute without so much as a whirn-
per from the First Amendment,'""' As examples of such speech acts she
cites saykg "'kill" to a trained attack dog, saying "'aye"' in a legislative
vote in return for a bribe, and verbal agreements to fix prices in violation
of the antjtrust laws. S h i t a r l ~
she gives a number of examples of expres-
sion that is unproblematically categorized as constituting the practice of
racial or sexual discrimhation rather than expressing m idea h favor of
those pmctices: a sign on a restaurmt saying "White m y " ; a pprofcssor
saying to a student, "'Sleep with me and 1'11 give you ar.1 A'"; or a boss
telling his female employee, "'Fuck me or yodre
All of these exampfes, MacKinnox~insists, involve "'o'~lywordsf";yet
they arc thought of not as speech but as the acts they constitute, that is,
assatrlt, bribery; price-fixkg, race discrimination, and quid pro qua sexual
harassment. Similarly, to MacKinnon, "[lp]ornography is masturbation
material- It is used as sex, It t h e ~ f o r eis sex," M e n men masbrbal-t; to
sexually demeaning pictures of women, it certahly is not "ideas they are
ejaculating over."" Moreover, MacKhnon claims, like other speech acts
that al-e routinety reguiakd, pomography is h a m M in that it leads to vi-
olent assatrlts on women by men "who are made, changed and impelled
by it.'"%y is it, she asks, that this harmful speech act is thought of as
speech protected by the First endment rather than as harmful sexual
activity such as "rape or child abuse or sexual harassment or sexual mur-
der?"""Why is it, MacK on co~~thues, that of all types of hamful sex-
ual activity "only pomgraphy . . . is protectd as a constitutional
right?""' MacKinnon answers that the male-dminated power structure,
which includes judges who consume pornography, has consh.ucted free
speech dochine so as to render h~visiblethis harm to wome11.
I agree that we still live in a patriarchal society in kvhich women's hter-
ests are often ignored. MacKinnon has not, however, shown that free
speech doctrine's treatment of pon~ograpltyis an example oi such dis-
crimination. As m initial matter, it is not at all clear that even hard-core
pornography is the idealess '"speech act" that MacKinnorz claims it is.
Owen Rss, LVho is generally syrrrpathetir to radical arwments k,r sup-
pressing ponnography, parts compmy with MacKinnon on this point,
'T~rnography,'~ Fiss writes, "is m exyressim of the creators and produc-
ers of the work and is most certairdy part of the discrourse by which the
public understands itseli and the world it confronts.'"" In contrast,
Fsederick Schauer insists that watching hard-core pornography is essen-
t i d y the s m e as hiring pfostitutes to ycrfsm live sex acts to stimulate
trhe v i e ~ e r . M
' ~ a t Schatler's interesting malogy misses, hwever, is that
unlike live sex acts, pornography makes use of media (film, books, maga-
zines, m d the fntemet) that are an essential elment of public discourse,
trhereby raising the possihiIity that ir~spectiweof any political i n t e ~ of ~t
the pmducer, government may be s e e b g to prohibit this expression be-
cause of its power to &ape public opinion. h additjon, precisely because
pomgraphy does make use of these media, it int.vitably involves some
modicum of arti,slic exp~ssionand arguilbly even the exp~ssionof some
social or political perspective as well." But even if we were to assume that
trhe sitk fu~~ction of pornogmphy is physical arousal, MacKinnox~is ungm-
suasive in her claim that in. not aUowhg the suppression of pornography
free speech d0ctrin.e discriminates against women's interests.".
For one, contrary to MacKimon's innlplicalion, sexually expljci.t.mater-
ial that can fairly be viekved as more akin to sexual activity than a discus-
sion about sex is in fact afforded no constitutional protection under cur-
rent doctrine. Free speech doctrine has never protected so-cal:ied
hard-core pornography or, as it is hewn in legal terms, obscenity..h reaf-
firming the historical exclusion of obscene material from First
A m e ~ ~ d mpmtectim,
e~~t the Couri. in Miller L). Culqonzia stressed that "the
public portrayal of hard core sexual conduct" "cannot be equated with
'Ytbe free and robust exchange of idfi.as.""."'Aad though by no means pri-
marily driven by the ftrnninist perspective, tt7e Court did note that ""there
is at least an arguable correlation" "Ibetween obscene material and sex
crimes. MacKinnon, then, is ~ i t wrong c when she complaks that of all
speech acts it is only pomogmphy that "'is protected as a constitutional
right*
I~~deed, as discussed in Chapter 4, under current doctrine even pomog-
raphy that is not sufficiently graphic to be legally obscene under Miller
(""soft-" m d "'medium-coref"porograpt7y) may be ~gulizt-ed in ways that
other expressim may not. Citicts can restrict movie houses specializing in
"aduit'bovies to certail7 parts of town (or alknlatively c m forbid such
theaters from locating within a specified distance of each other). And gov-
ernment m y forbid the sale of soft-core pornography to minorseq6
Currexlt doctril-re cognizes no such exceptioxls for oher types of books,
films, or magazllnes, even ones that are thought to be socially harmftrl. For
instance, there are films, booksl and magazines that arc to violence as
ponlography is to sex-extremely graphic material with no purpose
other than to appeal to a morbid kterest in violence. There is, hawever,
no viOlence malogue to the obscenity exception to First A m e n b e n t pro-
tection. Nor under current doctrk~ec m goven~mexltsubject movie houses
that show violent materid to special zoning ~yuiremernts.Nor is there as
yet any Supreme Court decision allowing the government to prohibit ma-
terial containjng explicit violence from being sold to chitdren. Rathel-, all
of these special exceptions are uniquely applicithle to scxually oriented
matcrial. So MacKirtnon has it backward: In affording government a spe-
cial dispensation to regulate the distribution of sexually explicit materi-
als, free speech doctrhe discrimintes agailzst sexually explicit material.
More centrally, MacKhnon" argument is flawed because it confounds
two very d i f f e ~ nsenses
t in which pomogmphy is claimed to be a speech
act.37The first (the one just discussed) considers pornography to be m act
because it catrses physical arousal. Btrt MacKimon also makes the claim
that pornography "constitute[s]" the subordination of women in the
s m e way that commands to t-rained attack dogs, voting in favm of a law
pursumt to a bribe, agreeing to fix prices, or the placement of exclusion-
my signs in places of pubfie accommodatim constitute acts :MacKimonrs
comparisor~oi pornogrwhy to Lhese speech acts is inapt.
In MacKimon" view, pornography constitutes subordination of
women because men who view this material are "'made, changed and im-
p e k d by it" to suhupate women through sexual aggression and vio-
lence. But men are "made, changed and impelled" to act in. this way
through pornogrqhy" ppouier to shape the way they see women. h cm-
trast, in forbidding verbal commands to kifler d o g m r the placement of
exclusionary signs h places of public accommodation or agreements to
fix prices or votes tajnted by bribery, the state seeks to prevent harms that
are u~~related to ihe power of speech to affect the way arlyorle sees the
world or social relations in it. In regulating when one can say "'kill" to an
attack dog, for instance, the state is not concerned with anyone" thoughts
about dogs or kifling or any other issue but solely that people not be un-
justifiably attackcd by dogs. Similarly, the jus'rification for preventing
restaurant owners from p1acin.g "White C>nlyr'signs in their establish-
ments is not thilt such expression m y persuitde others that integration is
wrong or about any other matter of public concern but that places of pub-
lic accomodation not exctucfe people of color.
As we have seen, a central ptlrpose of free speech doctrine is to assure
that the opinion by which we govern ourselves and the search for truth
in t-he marketplace of ideas is not distorted by government coercim. A
ban on pornography justifkd by its power to socialjze men's view of
women implicates these core values in ways that the regulatim of corn-
mands to attack dogs and sip15 in places of public accommodation sim-
ply da not.
MacKinnon insists, however,. that pornography affects the way men
perceive and hence treat w m e n not because me11 are persuaded by its
ideas but thmugh a form of ""primitive conditio~~ing, with picture and
words as sexual stimuli," a process that is "largely tmconscious."""The ar-
gtlment that expression that changes our perception of the world through
such "'primitive conditioningf"should be aft'orded less First
protection than speech that persuades through appeal, to deliberative fac-
dties is an interesting one. But it does not support her claim that free
speech doctrfne discriminates against LvomexI.
To begin with, regardless whether the process by which one's view is
changed is conscious or uncmscious or whether it is accmpiished
trhrough ""primitiveconditio~~ing'kr highly rational discrourse, justifying
the promition of certain images on the groan& that these imagemffect
the way viewers perceive social relationships remains entirely diflcrent
from the ratiox~defor reguiatint; c o m a n d s to attack dogs, legislative
bribes, agreements to fix prices, or the postirrg of " M i t e 0nly'"igns. It is
still the case that the former justifiration centers on the power of speech to
shape people's w r l d v i w whereas the latter raf;io~~aies do not. More im-
portmt, much speech, hcludhg political propagmda, poetry, m d music,
influences perspectives through "prixnitive conditiouring" or some other
process that is "largdy unconscious.'?f free speech doctrine wre to d-
W the grclnter regulation ol such expression just becmse of its ahilitlJ to
affect peoplc'qerception through normcognitive xnfcbanisms but did not
a f l w simila regulation of pornography, MacKinno11 w u l d hawe a pow-
erful argument that this doctrine discriminates against the interests of
women. But free speech doctrine decidedly does not allow any such
broad regulirtim based on this theory, and thus there is no merit to this
variation of her discrimbation claim.'y

MacKimon" particular gripe with current free speech doctrine stems

from its incompatibility with a model antipor~~agraphy
ordinance that
she and Andrea Dworkin drafted. The model ordinance defines "pornog-
raphy" as the
graphic xxually explicit subordination of women throu* pictures andlor
words that also includes one or more of the following: (a) women are pre-
sented dehumanized as sexual objects, things or commodities; ctr p) women
are presented as sexual c~bjeci-s who enjoy humiliation or pain; or (c) women
are presented as sexual objects experiencing sexual pleasure in rape, incest,
or other sexual assault; or ($1 women are p ~ s e n t e das sexual c~bjectstied up
or cut or mutilated or bruised or physically hurt; or (e)women are presented
in postures or positions of sexual submission, servility, or display; or (F)
women's body parteincltxding but not limited tt3 vaginas, breasts, or but-
tocks-are exhibited such that women are reduced to those parts; or (g)
women are presented being penetrated by objects or animals; or (h) women
are presented in scenarios of degradation, humiliation, injury, torture, shawn
as filthy or inferior' bleeding, bruised, or hurt in a a>ntextthat makes these
cctnditictns sexual.""'
The model ordii7xlce provides civil sanctions, ii7cludimg injw~ctiverefief
preventil7g further distribution.
As discussed in Chapter 4, the U.S. Supreme Court summarily affirmed
a federal appellate court decision invalidating m Indianapdis ordinance
based on this model."' MacKinnon claims that the failure to uphold this
rc.gula.lion is further proof that free speech doctrine invidiously discril-ni-
nates agajnst the jnteresta of women. This, daim, too is unwarranted.. For
one, unlik the Supreme Court's obxeniv doctrine, ihe model ordinar~ce
focuses neither on prurience nor lack of artistic value but rather is
premised, on the belief that sexually explicit, demeaning portrayals of
women cmdition men to suhjugatc women. As MacKirlinox~has written
in d e k n d n g the m d c f ordinance, "[f]f a worn is subjected, wPIy
should it matter that the work has other value?""" But if her theory is that
pon~ograpl-ryis just a mashnrhatory tool and t h e ~ f o r eshould be treated
like other ""speech acts" "(e,, saykg "kill" to a trained attack dog), then it
must surely matter whether the material in fact has value? aside from its
ability to sexualIy arouse.
Unlike verbal commands to attack dogs or a legislative vote cast pur-
sumt to a bribery scheme or words spobcen to effectuate an antitrust vio-
lation, exclude blacks from restaurants, or sexually coercc shdents or em-
ployees, sexually explkit material is ofkn part of serious artistic efJlorts,
some of which involve political or social colnmentary. Government has
often attempted to o u t l w important works of art on the grounds that
they contain sexually explicit material-works such as James Joyce's
Ulysses m d Henry Miler 3 Tropic of Cancere4jFree speech doctrine has at-
trcmptctd to draw the tir~ebetween expression with erotic c o ~ ~ t m that
t
nonetheless constit-utes serious artistic expression or otherwise has ""s-
cidly redeeming importance" and material that truly is no rnom than a
masturbatory tool. ':lb this end, the Supreme Court devised the following
definition of legally pmscribahle obscenity: T%e work must, taken as a
whole, appeal to "the prurient it~terest,""pegict or describe s e x 4 conduct
in a 'patently offensive wity," a ~ hckd ""seriousliterary, artistic, political
or scientific value-''M
There can, of course, be reasonable disagreement about whether the
Court drew Lhe line in the right place. Some argue &at because obscenity
prnsecuticms are e x p a s h e to bring and difficulC to win, obscerrity doc-
tfine is too protective of worthless yet arguably harmful speech, Uthers
argue that this doctrine does not adequately protect artistic and political
exp~ssion,pointing to such cases as the o b s c e ~ ~prosecutio~~
ip of a mu-
s e for~showing the homoerotic photographs of Robert Mapplethorpe
and m &urn by the African American ray group 2 Live Cmw containing
sexualfy explicit lyf-ics.'lVutwhaltlver the right answer to the pestion of
where to draw the line, the model ordinancds incompatibility with cur-
rent d o c t h e would seem to stem not from some insensitivity to the inter-
ests of wamer~but from a genuine desire to protect artistic expressio1.1 and
social commentary.
ALso belying the daim that in fjnding the fndianapolis ordinance un-
co~~stitutional the U.S. Court of Appeals a r ~ dthe Supreme Court discrimi-
nated agajnst womeds hterests is the fact that the model ordhmc-e regu-
lates expression based on its viewpoint, As Judge Easterbrook explained,
under the ordha~ce:
[slpeech treating women in the approved way-in sexual encounters
""pemised on equality "-is lawful no matter how sexually explicit. Speech
treating women in the disapproved way-as submissive in matters sexual or
as enjoying humiliation-is unlawful no matter haw significant the literary
artistic, or political qualities of the work taken as a whole, The state may not
ordain preferred viewpoints in this way The Constitution fcjrbids the state to
declare one perspective right and silence opponents?

As discussed in. Chapter 4, laws that regulate speech according to its

viewpoint have long been considered anathema to First Amendment val-
ues. For hstance, in 1859 the Court held unconstitutional a New York law
that banned any film that "expl-esdy or ilnplkcfly preents [acts of sexual
immorality] as desirable, acceptable, or proper pattern of behavior.'"
Pursuant to this ol-dinance, the state had denied a license to the film Lady
Cluafkrley's Lnver because "its subject matter is aduttery p ~ s e ~ ~as
t ebe-
d
ing right or desirable for certain people under cerl;lin circumstmces."'"'
The prohibitior~agair~stviewpoint discrimination thus cannot plausibly
be seen as s m e novel concept devised for the occasio1.1of il7Valjdathg the
hdimapalis ordinance-
 Cass Sunstc?jn argues that the lndianapolis antipornography ordinmce
it;ITO morc? viewpoint orie~rtedthan a host of other speech regulations per-
mitted under current First Amendment doctrke. He claims that ""tans on
advertising for casino gamblhg, c i g a ~ t t smobcing,
e and alcohol; the SEC'S
rcgdation of proxy statements; the controk 01%what emplaye-r?;m y say
during a union election; [and]the prohibitilm of advertising for illegal
products'hart. viewpojnt discrimirzatory ""invery much the same smse" as
trhe hdia~~apoljs ordh~arce.As Sm~steincorrect[y points out, these regula-
tions are not e e n as viewpoint discrin?inatory because there i s "a firm
consmsus" that the speech at issue causes "real-world hams," These "ob-
vious legithate justificatior~s"the~forcrdjspel m y thought that govem-
mex~thas rewlated the speech for some illegi~matep~rpose.~%esame is
mmifestly not the case, however, with the lindianapolis ordkmce.
As discussed at length in Chapter 7 and the Appendix, it is far from
cmclusive that porz~ographythat depicts women in &meaning or suhor-
dinate positions actually causes violence or discrimination against
women. Accordingly, in sharp contrast to most of the regulations
Sunstein cites, the lndial7apo:iis ordinance raises the distinct possibility
that it is motivated by some purpose ather than the prevention of con-
crete, "real-world" 'harms, such. as vialence against women, but i s rather
an attempt to squelch porz~ography".;offensive images, such as womm
portrayed as sex objects or as subservient to men. T%e possibility of ille-
gitimate government purpose is heightened by the inextricable link be-
trtveen the topic of womn's sexuality and a host of broader, hotly con-
tested political issues- As Ronald Dworkin has written: "'Pornographic
photographs, films, and videos are the starkest possible expression of the
idea feminists most loathe: that w m e n exist principally to provide sexual
sestlice to men."'l" The Carradian Suftrrme Court candidly adrnitted that
one reason for upholding a ban on degrading and vjolent pornography i s
that it "seriously offer~dsthe values h ~ d a m c n t atru
l our ~ocirtty.'"~In the
United States, the city of Renton, Ohio, justified a pornograpky mgmlation
on the grounds that such material had an "advelpse effect" on "establiShed
family values, respect for marital relations a d for the sanctity of mar-
riage relations af others~""
:In contrast, the harm caused by cigarette smoking and alcohol con-
sumption is both paipahk and well documented, and it is entirely reasoxl-
ahle to assume that increaxil advertising of these products leads to m in.-
crease in their use. Furthermore, the ""scialization"" that government
seeks to dhinislt when it regdates advertising for these products is not
errtmgled inbroader political issues. We t h e ~ f o r ereadiiy ilccept the gov-
ernment's justificalion that it has banncd cigarette and alcohol advertis-
ing for its stated purpose rather than suspecting that it has d m ~ eso be-
cause of disagreement with some worldview that the speech portrays.
The sarne is true to varying degrees of most everything dse m Sunstein's
list.52What Sunstein's a r p m e r ~does
t Show, however, is that determhh~g
whether a regulation is viewpokt discrimhatory is not some purely ab-
stract exercise but necessarily involves judgment and interpretation of
red-world facts and events, a process h a t cannot be entirely divorced
from the decisianmaker's akvn political kriewpoint. Nevertheless, al-
though his argments am thought-provoking, Sunstein, like MacKinnon,
fails to make a convincing case that contemporary free speech doctri-ne
discrimhates against women.

Proponents of b a ~ on s hate speech m d pomograyhy often make the fol-

lowing argument: ' f kFirst Axnernher~tis but one provision of the
Constitut.ion. At least as importmt is the Equal Protection Clause af the
Fourteenth Amenbent, uihich outlaws invidious racial and gcmder dis-
c r k i n a t i o ~The
~ . expression of vicious racist ideas leads to acts of racial
discrimhation, and the consurnpt-i;onof pornography causes the subordi-
nation of women. Both are class-based, injuries implicating the E q u d
Protection Clause.L'Wccordingly,application of standard First Amend-
ment doctrine, which all but ir~buetablycondems viewpoint-oriented
laws as u n c s u t i o a should not apply to hate spee'h or pornography
bms because, d i k e ordinary speech regulation, these laws protect con-
stitutional rights. Hate speech and pornography prahibitions present a
special case in which t h speaker" First Amendment rights must be "bal-
anceldl . . . directly"" against equality T%c?Court's persistent fail-
ure to see that challenges to hate speech and pornography involve not
just the right of free speech but competing equality r i e t s is another ex-
ample of bow the interests of minorities and women are igr~oredby free
speech do~trine.~"
At first glmce, this arwment may seem prsuasive, leaving one to won-
der how free spee& doctrine could have for so long disregarded these
countervailhg equality rights. Careful malysis, however, reveals that the
argument is fallacious, fur laws against bate speech and pornography do
not really involve conflicting constitzltionaf rights. Like most provisions of
the U-S. Constitut-ion,the Fourkenth Amendment is a limitation on gov-
ernmental, not private, conduct.33The Faurteer-tth e n d m e ~ declares
~t
that "MOSfatc sbdl . . . deny to any person wil:hin its jurisdiction the
equal protection of the laws." % a bigot spekving racist venom in the
spekers" corner of the park or a video store owner renting a pornographic
film caulot possibly violate lfie Fourteenth Amedmerlt, tn contrast, if the
propownls of hate speech regutation have their way, the state will enact
the law and arrest, try, and imprison the racist speakr and the puwcyor
of pornography. This is state action flainty implicatix~gthe First
Amendment. What is involved in a ch;zifengeto a genmal hate speech or
pornography ban, then, is not a conflict between constjtutional rights but
a clash hetwee~lthe co~~stitutionai rights of a speaker ar~dthe state intaest
in protecting itld-ividualshorn harm caused by the speech.
:In response, radical proponents of hate speech laws point out that the
ohjeclion that: there is no true e d i c t hetweal constitutional rights de-
pends e~~tirely upon t-he distinction betweal state and private action, a
concept that, in the words of Charles IJawrc.nce,"'reks upnn th.e mystify-
ing proyerties of cmstitutiond ideology.'"-"'It is true that the state action
doctrine is amctng thc. least coherent of afl Suprernc Court doctrine,
prompting a commentator to refer to it as "'a conceptual disaster area.'"8
One reason state action doctri~leis badly confused it; that before Congress
passed laws prohihitint; discrimination by private persons in housing
and p ~ ~ b Iafcommodntion,
ic t%le Suprclme Court s t ~ t c h e dthe state action
concept to cover instances of these discriminatory practices. For inslance,
the Court held that judicid e~~forcemcnt of private ra@iaIlydiscrimina-
tory covenants was uncons'ritutiond stale action in vjolation of the
Fourteenth Amendment, SimjXarly, the Court found that state action in-
hered in racial discriminatioxl practiced by a privately owned coffee shop
located in a building owned by the state.'%nd as discussed in detail in
Chapter 6, the Court used. an expanske notion of state action to upset
trespass co~~victions of civil rights protesters for staging sit-ins at sgre-
gated facilities.
Passage of the civil rights laws in the mid-1960s outlawirsg racial dis-
crirnination in busing, employment, and places of puhlic accommoda-
tion relieved the pressure to expand the state action concept to cover
these areas, and by the mid-19ms the Court" state action decisions were
plainly incornistent with its earlier prclnounceme~~ts. For instance, h1973
the Caurt held that despite extensive state regulation, hcluding approval
of the very practice at issue, a privattz utility company" pprocedure for ter-
minating service to delinvent customers was not state action and thus
not subject to the stricturcts of tfie Duc Process Clause of the Fotlrtemh
Amendment.'&@
Despite the Court" i n a b i y to produce coherent doctrbe, recognition
of some basic didotomy between state and. private action remains m in-
dispensable e l e m t of U.S. constihrtional :Law. Without such a distbctim,
trhe concept of constitutional limitatio~~s on governmental irltrusior~son ir-rdi-
vidzral r.ights becomes meaningless. As IJaurenceTribe has explaix.red, ''[Ely
wempting private a d o n from Ihe reach of Ihe Constitution" prohibitions,
[the state a c t i o ~requirement]
~ stops the Co~~stitution short of p ~ e m p t i n g
individual 1jlbert-y f denying to hdividuals the freedom to make certain
choices, such as choices of the persons with whom they will associate,
Such freedom iti basic under a ~ conception
y of Iiberty, but it wouid be lost
if individtrals had to conform their conduct to the Constitution" dde-
mrnd~."~'
Ib give some specific exmples confirming this point: The Constitution
genedly brbids sex cf;scfjfnination,but forbistding individuds from dis-
criminating on this basis in pursuing amorous interests would, aside
f m being absurd, violate pcrso~~al autonomy, Similarly, the Comtitution
forbids the governmczr~tfrom discriminating on the basis of religion or
even to take a person" re into accomt. There could be no such pra-
hibition on private dccis king in the religious sphere without con-
tradicthg the esse~~tial p of the Free Exercise Cbuse. Wth regard
to free speech, the First Amendment generally forbids the government to
make content-based decisions in r e g d a t Q public discourse, hut it also
presupposes that private persons, such as editors and publitihers of news-
papers, will routkelly engage 2I content discrimin in deeidixzg which
stories to m.Xn short, the concept of state action t be determined in
the abstract but, as Tribe suggests, must be bounded by the various
realms of decisionmakhg reserved to the jndividual jn our constitutional
scheme,
Not only is the distir~ctionbetween private and state a c t i o ~ esserrtial,
~ it
is, for the most part, qtrite workable, Indeed, the distkction is trsually so
obvious that it does not even rise to consciousness in most cases, h31y
borderlhe cases call for rnaly~is.~Vut whatever ctifficulties may arise in
these cases, liberal democracy must retairr some basic disthction between
the actions of the state and those of the individual. Although there can be
legitimate disagreement &out where to draw the line, a racist speaking in
the park or a vidco store proprietor rentin: pornographic films m s t be
put on the "private" "side of the line," (This is not to say that outlawhg
racist speech is cor~traryto basic prin"iple~fliheral dernocracy I discuss
this different and much harder question in C_:haptcf4.)
Even if a privak person expressing racist ideas cannot teclz~icallyvio-
late the Fourteenth Amendmer~t,racial and gender ewality is nonelhe-
less a paramount constitutional value. Should not the centrality of this
value be factored into the analysis of the constil.uti.onality of laws pro-
moting such equality? In ox-resense the answer is p:lainIy yes, and currer~t
dockine afready accounts for the importance of the state's interest in
eradicatirzg invidious discriminatjon. For illstance, the S u p m e Court
has held that preventing racial discrimifiation is a compefling state inter-
est and would surely so hold with respect to eliminati,ng violence against
women and other foms of discrimination said to result from pmogra-
phy."" But radical critics argue for sowthing more radical. They believe
the fundamental equality norm expressed in the Fourteenth Amendment
r e q u i ~ that
s the usual free speech rules should not apply in hate speech
and pornography cases. In particular, they argue, the stmng presump-
tion against content-oriented laws should be suspended in such cases. In.
their view uihenever hate speech or pomogm"phy regulations are chal-
lel7ged mder ehc First Amerrclmertt, the free speech and equality inter-
ests should be ""balanced directly" h Chapter 9 1 explain why it is far
from obvious that either free speech or equality would be well served by
such an a p p a c h . Here, however, 1 bit the discussion to showing that
in failing to bajar~cefree speech rights against other canstitutional
norms, the Court has not discriPnhated against the intcsests of women
m d minol-ities.
There are a host of other interests that trhe Constitution protects agairlst
gover~~ment infringement but that, consistent with the state action re-
quirement, am not secured from interference by private individuals, For
instance, property is guaded by the s m e amendment t-hat guarantees
equal protection of the labvs, yet theft is not treated as raising a constitu-
tional issue in the absence of some state involvcrnent."Worclpertinent,
the usual free spwch andysis applies when business owners claim that
striking employees are interferkg with their property rights. Similarly;
the ordinary free speech rules are not suspended in cases in which it is
aileged that expression interferes with co~~stitutionally protected rela-
tionships such as marriage or child rearing, as many books and movies
supposedly do. Nor in cases involving advocacy of burglary murder, or
kidnapping wodd the Fourth Amerrclmertt"s protection of the home or
the Fourteenth Amendment's prohibition against the arbitrary depriva-
tion of life or liberly alter the free speech anatysis. By the s m e token, at-
tacks on eyuality n o m s by private speakers are treated precisely like alt
other private speech that has an impact on values the Constitution
shields from government intervention.
In recent decjsior~sehe Court has continued to resist calls to suspend
ordinary free speech analysis just because the speech invades an interest
constitutionally protected against iIlfraement by the state. hlthough
urged by both acaderrric commentators and litigants (ix~cluding,to its
discredit, the American Civil Liberties Union) to aKord less protection to
protests at abortion clinics because pro-life demonstrations interfered
with a woman's right to obtaill m abortion, the Supreme Court has de-
clined to do so." hdeed, even in those rare cases where state action im-
plicating both free speech and some other constitutional right results in a
true cor~flictof rights, Lhe Court hews closely to its 17ormal free speech
analysis rather than engaging in ad hac ba1mcingah7
 Radical critics argue, however, that racial and gender equality are morc?
fundamental than property, protection of the home and traditional family
~tationshjps,and other norms reflected in the Constitution. Racial and
gender eyualiv is not just some orcfhary constitutional value; rather it is,
in Owe11 Fiss's swords, "one of the center h e m s of the legal order.'"""
Radicals therefore insist that free speech doctrine" failure to take into ac-
count the overriding importmce of the equalily norm slights the interests
of wornell m d minorities.
This claim of discrimination is difficult to substantiate. Democracy is
sureIqi also a "center beam" of the h e r i c a n Isgal order, hdeed, the con-
cepts of equality and democracy are inoctricahly linked. I take it, how-
ever, that the radical critics souid not favor the suspension of the nor-
mal free speech rules for Marxist propaganda on the gmzlnds that such
speech attacks core constitutional noms. Thus these critics do not charge
the Warre11 Court with any lack of commitme~~t to democratic ideals in
=-using to suspend normal analysis and %dance directly'2free speech
agahst democracy in the later Slxith Act cases or in other cases involv-
ing cornmur~ist~ p e e c h . ~ Vthe
y same token, the Court's rdfusal to sus-
pend the usual free speech rules for regulation of hate speech and
pornography should not be seen as reflecting lack of dedication to equal-
ity. Ratl~er,this refusal stems from the recognitiox~that such an approach
would lead to trncertain and unprincipled decisions-
As the Supreme Court's substmtive due process jurisprudence
demonstrates, d e t e r m i ~ ~what
i ~ ~ gfundamental rights the Constitution
actually protects c m be an e x t ~ m d ysubjective exercise; identifying
the cexltral values underlying this document requires even more sub-
jectivity. If a majol.ity of justices happens to believe that n a t i o ~ ~self-
al
defense or protecting U.S. interests abroad is a "'center beam" of our na-
tional charter#it will be hard to prove them wrong. If they derive from
this value the rule that government has a "compelling" interest in pre-
venting ctsrtrption of military recruiting during time oi war, this, too,
seems fair enough. Rut it would be quite another matter if the Court
were to hold that because this value was central to the constitutional
scheme, antiwar speech inimical to the war effort should not be mea-
sured by the usual rules governing free speech cases but rather protes-
tors' free speech rights should be "bdanced directly" against the core
constitutional value of national self-defense. Such a "'balancing'' ap-
proach to free speech would invite judges, perhaps quite uncon-
sciously, to smuggle their own views of the u~~derlyinij controversies-
whether the Vietnam War, abortion, cornm~rnism,labor disputes, or
civil rights-into free speech analysis. Such judicial viewpoint discrim-
ination would likely have serious negative consequences for free
speech d o ~ t r h e * ~ ~ ~
 MacKimon is surely cormct that we live in a country that "is suppos-
ediy not constitutionally neutral on the su27ject" of racial and gender
equalityz But we also live in a country that is committed to public dis-
course not bounded by the values enshrined in that document, Whether
trhe Court has been right ~ Irefusing
I to appty special rules to speech that
argrlahly undermines the most basic constitulional norms is a question
that f address in Chapter 9. My point here is that in failing to suspend the
normal free speech d e s for hate speech and pornography, free speech
doctrine does not discriminate against Equal Protection Clause values.
Rather, free speech doctrine mer@lyfails to give egualie special immu-
nity from the rough-ar~d-tumbkof plub[ic discourse. Right or wrong, this
refusal to exalt equality above the fray oi public d&ak stems not from
any failure to appreciak the prominence of equality as a constitutional
norm but from fear that reducing protection to speech that attacks constj-
trutional n o m s will lead to unprincipled decisio1.1~as well as a stagna~t
society.
No Supreme Court justice did more to promote gender and racial
equality than Wfiiam Brttnnan. k t in his response to Chief Justice
Rehnquist" insistence in the flag-burning case that "'one of the high
purpowes of a democratic society is to legislate against conduct that is
~ g a r d e das evil and profoundly offe11sive,'9rerlinaan wrote: "The First
Amendment does not guarantee that . . . concepts virtually sacred to
our Nation as a whole-such as the principle that discriminiltion on the
basis of race is odious ancl destructive---will go unquestioned in tfne
mi-trketplaee of ideas.'f72He warned that "decidling] which symbols
were sufficiently special to warrant [the] unjque status" that the dis-
sent urged should be bestowed on the U.S. flag woutd "force [us] to
consult our own political preferences, and impose them on the citi-
zenry, in the v e v way the First AmeIldrnent forbids us to do." E~xalting
one constitutional norm over all ot:hers as a grounds for limiting speech
would similarly invalve an illegitimate imposition of ""pli"cieal prefer-
ences."
Ib Stanfepi Fish, such talk of maintair~i~~g ideologicd neutrality is at
best utter nonsense and at cvorst a bad joke flayed by eJites on an un-
suspecting populace. Fish claims that free speech doctrine is inher-
ently "politicai"" or '"idtrologicai'" because the very construction of the
rules (for instance, that fighting wards are not protected speech or that
only certain public places are to be considered public forums) requires
judge"o engage in value choice.'*Consequently,

""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.

Media Perpetuation ofXacial a ~ Gelzder

d Stereotypes
Whatever the sounrce, there can be little doubt that television and films
contain racial and gender ste~otypes.Zncteed, ont. Hollywood gender
s t e ~ o t y p eis so p ~ v a l e n that
t the screewriters a ~ producers
~ d have a
name for it: the "'damsel in distress," a comely but not too competent
young woman who constantly needs to be rescued by a confident but
emotionally blocked male (as in Roma~cing the Sforze m d Cwcodile
D~rndec).~ The most reliabe sozlrces of gcndes stereotypes, however, are
television commercials, which almost invariably show Mom doing the
laundry,clc?a~ir"tg the toilets, and feeding the kids while Dad is at work
earning a livbg. One of the worst offenders in this regard several yean;
ago was a commercial for laundry detergent featuring a Iftle boy
playing in the mud who explained that just as his father went to lfie of-
fice, it bvas his job to ptily in the mud. This explanation was followed by a
voice-over proclaiming, '%ut moms don't like dirty clothes." There you
have it-the natural order of t h i ~ ~ g accordi~~g
s to the most powerful
medium in contemporary society: Little boys play in tt7e mud, dads go
the office, and mams do the latrndry 326s image of the "proper" mle of
women is constantly being reinforced by slogans such as "Kix-Kid.
Tested, Moeher Approved'ka-t-rdthe cough medicine commercials feahnr-
ing "Dr. Mom." And then there are the commercials that show the pre-
scfibed path for females to become Mow such as the MasterCard. com-
mercial in which a young w m a n o f i e ~ ad r ~ important job in another city
reacts with tears of joy when her boyfriend gives her an engagement rirrg
with a note saying, ""Please stay""
Richard Delgado m d fern Stefancic have documented h w throughou.t
American history poptrlar works have persistently contained false and
demeaning stereotypes of racial minorities. Before the Civil War, blacks
w e portrayed as ""irept urban dandies or happy childlike slaves"";after
emarrcjpation the "good slave" image continued in the form of " m m -
mies," "unccles," m d ""Smbas" but was joked by an "omhous shadow
figurem--a hypersclxual black male w:ho preyed on chaste white w m n .
Both images are grotesquely displayed in. D. W. Griffith's 1915 film The
Rirt?-c o f a Nation. Echoing the early stel-eotppe of the happy-gwlucky
slave, popular cufture in the 1921)s began to depict Hacks as ""musically
talented, rhythmical, passionate, and entertaining.'' Begiming with the
civil rights movement, the image of blacks in the media once again
changed, at least superficially:eht."" unreasonable, opporhll7istic c0ml-l-
nity leader and militmt; the safe, comforth~g,cardigan-wearing (dnice')
Black of 'V sitcoms; and the Black Bomber of superskrd f i h s , all muta-
tions of, m d permtations of, old fantiliar forms.'" a h e r minority groups
have been persistently stereot-yped as well: the savage, grmting Indim or
more recently the noble savage, still karticulatcl but with his goodiness ex-
aggemte"d;the sly, inscrutable, villainous Asian; the greasy com~iving,
treacherous Latina."
At least with respect tru images of African Americans, I am not sure that
the picture. is quite as ma~~ochr~matic as Delgacfo and Stehcic paint it.
The 1990s sabv movies in bvhich black actors not only did not play stereo-
typical roles but in which race played no part in the story line. Morgan
Freeman's cowboy in T k Unforgiven and Denzel Washington's roles in
Crimson Tide, Muck Ado About Nothing, and Fallen are examples of this ef-
fort to get beyond race. Similarly, in Star Trek: The Next Generation, the skin
color of the characters played by Whoopi Goldberg and Lavar Burton is
mostly irrelevant, as it is in the case of Captain Sisko played by Avery
Brooks in Deep Space Nine. (The thought here, I suppose, is that the racial
differences among humans that seemed so import ant in the twentieth
century have become trivial compared to the ddferences between humans
and the other life forms we encounter in intergalactic explorations.) And
although The Cosby Show sometimes confronted racial issues, the series
was refreshingly free of stereotypes.
Despite this recent progress, I agree with Delgado and Stefancic that
false and demeaning racial stereotypes still pervade popular culture. One
need look no further than the mascots of several professional sports
teams (is there really still a team called the "Redskins"? Why not the
"Darkies" or the "Japs"?) or the names of major food brands that nostalgi-
cally recall the good 01' days of slavery (Aunt Jemima and Uncle Ben) to
realize that we still have a way to go.
Although there has been definite (albeit not nearly adequate) improve-
ment with regard to the images of racial and ethnic minorities in popular
culture since the 1930s, the same is not true with the images of women.
Indeed, at least so far as film is concerned, it may well be that images of
women have regressed. Compare the strong female characters Katharine
Hepburn portrayed in the 1930s to the parts Julia Roberts played in the
1990s. True, women are sometimes depicted as successful professionals
and executives. But even in these roles they are often shown as unhappy
and longing for true fulfillment as wives and mothers.
And even when films do not stereotype women and minorities, these
groups are often marginalized. When in Mississippi Burning Hollywood
finally gets around to producing a movie about the civil rights movement
and the violence civil rights workers faced, the story is told from the per-
spective of two white FBI agents, with black characters in subordinate
roles. Similarly, Disclosure, the first major motion picture that deals with a
long-standing and long-ignored impediment to women's social equal-
ity-sexual harassment in the workplace-involves the anomalous situa-
tion of a woman who harasses a man.
Thus it is hard to disagree with those radical critics who maintain that
much of the speech protected by the First Amendment reflects and subtly
reinforces the racism and sexism still prevalent in our society. But al-
though it is accurate to characterize this speech as reinforcing the status
quo and to observe that such expression is indeed protected by the First
Amendment, it is unfair to blame free speech doctrine for this problem. No
system of free expression compatible with a democracy could possibly
permit the pervasive government regulation needed to extirpak offen-
sive stereotypes depicted in popdar culture. On a more fundannentd
level, m y attempt to pfevent the media from reflecting majoritarian val-
ues and prejudices would, as a p r a d i a h m t e r , be d o o m d to Eailure
even in the aibsme of constitutional constraints. In, a democracy the
views and values of those assigned the task of ~egulatingthe media will
tru s o m significant e x t e ~share
~ t miljoritarian vaiuctti, ar~dthus even if the
c m e w of television pmgranzs, films, and books were pervasively con-
trolled, the regulations would promote the status quo. (Ewn in authori-
tarian regimes, h i c h can to a much larger c x t e ~i~pt~ o r epopular senti-
ments, the views expressed in state-controlled media will over time ter~d
to become consonant with majoritarian k4iews if go\~mmentpropaganda
has been at all effective.) There is little that constitutional law in a democ-
ratic state c m do, t-hen, to keep popuiar culture from mirroring popular
sentiments.
Neither Delgado, Matsuda, nor M a c h n o n (nor to my howledge m y
other propone~~t of hate speech or pornography regulation) recommends
that free speech doctrille be re\lised to permit government to censor
racially stereotypical images in flms, television, or novels. Rather, like
most of those who want to prohibit hate speech, they want to ban ordy
the most vicious forms of racist pmpagarnda, such as the material circu-
lated by the Ku & ~ U XKfan or the American Nazi Party. N e e d , Delgad0
would not eve11 go this f a , appmntiy conte~~t with a doctrine that would
pennit tort recovery for direct personal insults m d th.e regulation of simi-
lar speech on campus7Shilarly, MacKinnor~does not a r p e that the First
Amendrrrent should allow lrhc extivation of traditional.images of women
from popular culture but rathgr that sexzlully explicit expression that is also
demeaning to women should h d no First Amendment shelter. But surely
Detgado a r d Matsuda realize that the i~nagesof It~dianson Saturday
morning television m d the stereotypes of Africm Americans in. films in-
fluence the way white Americms see minol-ities far more than does vi-
cious hate progaganda distributed by frir~ge groups Similarly,
MacKinnon mtrst know that gender relations most often portrayed in
popular culture-in everything from Disney katures such as The tittlc
Memaid m d The Licm K i q to the Doris Day and Rock HUdson moVjes of
the 1,950s to the cumnt box office fare that updates the Cinde~Llatheme
for adults-have at least as profound a sucidizing effect on gender roles
as does pormgraphy."
Why, then, do radical critics limit their argulnents for governmcnt con-
trol to doctrine that would recognize restraints on hate speech m d
pomgraphy? Perhaps the answer is that they recognize that there is no
dance that thc First hencfment woulct ever be hterprcrted to illlow such
restrictions, so they may as well. work for what is at l a s t possible. But I
also suspect that they h o w that even if the First Amendmnt were no ob-
stacle, Congress would never pass a law sett-ing up such a system of cen-
sorship. If they are correct that racism and sexism is ubiquitous in popu-
lirr cuiture, then it is ur~likelythat the politicai culture would produce
legislation eradicating these stereovpical images from mass media. Thus
the hilum of the radical critics to propose a truly radical solution to the
prohlem of racist and sexist images in the media is a tacit admissior~that
the pmblem of perpetuation of traditiomal sterclotypes calnnot be laid pri-
marily at the First h e n d m e n t " door.
Consequently, i h e radica1s"mphas;is on the omipresence of gender
and racial stereotyping in the mass media does not directly sllpport their
call for ~ v i s i n gh e speech doctrinc to allow hate speech and pmnogra-
phy regulation. Indeed, the exisknce of expression that would seem to
hawe a much morc pwerful infiuence on gender ar~drace relatio~~s m-
dercuts the argument that barnkg hate speech and pornography would
significantly improve these relationships. The power of television, films,
and popular novels to reinforce false and dentearkg images of minorities
and w m e n does, however, stand as a rti.joi.l-tderto those who bhthely as-
sert that free speech is always m ally of &aditionally o y p ~ s s c dgroups,

Unequal Access to lnfluent ial Media

Although the existence of stereotypes in mass media and the resulthg
perpetuation of gender and racial jnequalit-y c at be blamed primarily
on free speech laioctril-ze,free speech case law has had some role in making
trhe marketplace of ideas less accessible to those of limited weal& and in-
fluence. One m a in which doctrine is directly ~ s p o n s i b for
e perpetual-
ing the intexsts of the rich and powerful is c m p a i p financing. In 1.976
trhe Supreme Court, in Btlcklq a Maleo, rewiewed the co~~stitutimality of
the Federal Election Citmp"jgn Act oC 1.974, a law passed in the wake of
the Watergate scandaleY aithough upholding stricti ions on direct co~~tri-
butions to political candidates, the Colnrt invaljdated 017 First Amend-
ment gromds pmvisions of the law that limited expenditures that jndi-
viduals and orgartizations, including corporations, could make on behalf
of candidates or with regard to politic& issues. I h e Comt stated that "the
concept that g o v e r n a t may restrict the speech of s m e e1emnt.s of our
society in order to enhance the relative voire of oChers is whelk foreign to
the First Amendment.ff
f3zrcl;liey has been defended on the grorm$f; that despite the good inten-
tims of the expenditure limitations, giving the government such exten-
sive control over political expression will ultimakly disserve rather than
e&ance democratic values.") But: whatever the ultimate merits of the de-
cision measured in k m s of ul-tderlying free speech values, the Court" in-
validation of the expendi'cure provision 01.7. First ex~cimex~t
growds has
meant that money remaks crucial in electoral politics and hence well-
heeled individuals conthue to influence the results af these elections. A
particularly ironic example of how recent free speech doctri-ne can abet
wealthy interests is decisions that make it possible for monied corpora-
tions to cmtrol the initiative m d referendum process, devices orighaily
introduced to circumvent the stranglehold that these interests had on
state legislatznre~.~%s
one radical critic has written:
The first amendment has replaced the due process clause as the primary
guarantor of the privileged. . . . [Slince the demise of substantive due
process, !a doctrine by which the Court in the early part of this century inval-
idated progressive business regulaticms,] their investments in factories and
stocks can be regulated by Xegislatures, Under Bucklq zj, Vale0 and [its prog-
enyIf, however, their investments in politics-or politicians-cut be regu-
lated significantly. Needless to say, careful investment in pcjlitics may pre-
vent effective regulation of traditional investments.12

Nowithstanding the contrary dicta in Bztckley, there are in fact cases in

which the Court has allowed government to regulate speech in order ''to
e~*ance the relative voice" "of those who do not have the means ta buy ac-
cess to the marketplace of ideas. For instance, Red Lion N~oadcasti~~gt ~K. C
upheln the fairness dockhe, which required broadcasters to seek out is-
suer; of puhlic concern a r ~ dpresent them in a balanced ofashio~~,
as well as
to offer a right of reply to anyone attacked on the air." Mme generally,
cument doctrirze provides govemment wide latitude to subsidize speech
that for ccronomic or other reasons has not had a fair opportunity ta com-
pete in the marketrplace of ideas- There thus is no First Amendment absta-
cle to government progrms that favor minority groups in the award of
broadcast licexrses. fndeed, in rejectil7g an Equal Protection Clause chal-
lenge to such a minanty preference program, the Court found that "the
divewity of views and infamation'"rmoted by this program senies im-
portant First Amendrnent values.14Despile t k leeway that currcsl?t doc-
trine provides government to remedy irtequaljties in the markeplam of
ideas, however, neither C q r e s s nor state legislators have aggressively
su:bsidized those who wish to c o v e t @in the marketplace of ideas but do
not have the means to do so. As is the case with the perpetuation of racial
and gender stereotypes, then, it is not free speech doctrine that is prlin""r-
ily to blame for this continued inc?yuality
Some have argued that the problem of inequality of access to the influ-
ential, media will be solved not so much by government regulatim hut by
new technology. The developmnt of coaxial cabte g ~ a t i ycxpiznded the
ntrmber of available television channels, including ptrblic access chan-
nels. More significant, the fntemet has made it possi:ble for ordinary peo-
ple to reach a huge audience at very little cost. Noneehekss, tt7e wealehy
continue to have an enorlxous advantage h the marketplace of ideas. At
least for now cammexcial television, talk radio, movies, and books are
still far more powerful than public arcess stations and Web sites.

Doctrine's Favoring Recognized Rights

over Potentially New and Colnpeting Ones
O h m ways in which free speech doctrine privileges the status quo are
more subtle. Some of the most bitter political battles in American history
hawe been fought over which of two competing and mutualty exclusive
rights the law should recognize; the property rights of slave olvuzers or
the humm rights of the slaves; the right of owners of publ.ic accommoda-
tions a r ~ dhousing to practice racial &scrimination or fhe c i v i l rights of
African ,Americans; a fetus's right to life or women's right to procreative
choice. Like an incumbent in a political campaign, the right =cognized at
any give11 time will o&en have an advantage over the h~terestthat seeks
to supplmt it. This advantage will often be ~ f l e c t e din free speech doc-
tfine, whjch is, after alll part of the larger legal order.
For example, courts have w~iformlyrebuffed First Amendment chal-
lenges to the Freedom of Access to Clinic Entrance (FACE), a federal law
making it a crime physically to obskuct access to abortim clinjcs.'qACE
has a decidedly disproportionate impact on this itleologkal dispuk. An
antiabortion activist who blocks the path of a woman seeking an abort-ion
is subject to federal criminal penalties under FACE, but a clinic employee
who assaults an antiabortion demonstrator is not. Similaly, acts of nonwi-
dent civil disobedience rout.inely engaged in by the mtiabortion move-
ment-sit-ins and blockades at aborljon clinics--are the prime Ohjects of
FACE; in contrast similar civil diSOhedience likely to be engaged in by
ahortion rights advocates (e.g., a sit-in at a legislator's otficc) is not cov-
ered by this lam Nonetheless, the courts have not viewed this law as m
illegitimate attempt by Congress to favor one side in itr.2 ideological battle.
Rather, they have afcepted at face value (so to spenk) the argument that
the law's purpose is protection of a legal right-the right to obtain abor-
tion services.
Although not often noted, property rights also play an important role
in free speech doctrineeTh The line betweell public and private property is
ofte11 also the line betwee11 highly protected public dixourse (e.g., speech
in a public park) and simple tres;pass speech (e-g.,a pratestar leaaethg at
a large but privately o m e d shoppjltg mall).': As we h a i l see later in the
chapter, had it not been for some enormously creative maneuvering by a
Supreme Court sympathetic to the goals of the civil rights movement,
propery rights would have stripped civil rights sit-ins of m y constih-
tional protection.

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.'"

These authors therefore reject the "pyrime tenet of liberal jurispmdence

that by talk, dialogue, exhortation, and sa on" we are able to '"dvance so-
ciety to greater Levels of fainless and humanity'""'
Dclgado and Stefandc" aargurnent is self-contradictory. They recognize
that over time "consciousness shifts and sack@ adopts a diffelvrnt n m a -
tive.'" But Etw do they suppose that "cmsciousnest; sbifts" if not by "talk,
dialogue, exhortation, and so on"?

Free Speeclt and the Abolition Movement

Delgado and Stefancic give the game away when they note that Harriet
Beecher Stowe's antislavery novel Wnclr "Ibnz's Cabir.t ""sld well ox~lyafter
years of abolitionist sentiment and agitation had sensitized her public to
the possibility that slavery was wrong."'"~ut another name for this "aho-
litionist sentiment and agitation,"' as well as Stowe"s literary efforts, is
"'speechrr;and as Delgado and Seefizncic concede., it cvas this speech that
ultilnately persmded people that slavery was wmng. It is true that beep-
seated social xlioms are difficuit to change because they are often seen as
an uacontestable part of the natunll order of thhgs. T%uspublic criticism.
of oppressive but long-standing practices and institutions is r e l y effec-
tive ovcmig:ht; such critique usuafly only tliggers the process by which
p e v l e begin to sec th.ings d8ert.ntl.y.This was certa3in.l~ true of ilbdition-
ist speed.
:In part because of their faiiure to appreciate the enormity of slavery,
certairdy becauscl of the lack of empathy for blacks, but perhaps prharily
because of fear that this speech would alienate the 50~1thand thus
threaten the Union, northemers at first wide@ opposed the abolitimist
message." Thus the campaign of the 2830s to mail southerners antislavery
literature condemning slmholders as cruel sjnners amd mg3in.g their E-
demption was opposed by mass mtiabolitionist meethgs throughout the
:North and corlidemned by the northen3 press asthe work of ""fanatics'"
and '*incendiariea""iGovernor Georige Wolf of Pennsylvania proclaimed
that the "crusade against slavery is the offspring of fanaticism of the most
dangemus and alaming character; which if not speedily checked may
kindie a fire cvhich it may require the best blood of the c~luntsyto
quench. "

Nonetheless, trhe North, relyhlig 0x1 the Americarli tradition of fmedom

of speech, uniformly rejected the southern cdl to suppress such speech
because of its tendmcy to incite slave rebellions. Even as ardmt an an-
tiabolitionist as Governor Wotf realized that "freedom of speech a d of
the press . . . is the safeguard to free discussion, m d the best expositor of
public opinion" and thus must not be "infringed upon or controlled by
enactmerlits hlitcnded to remedy some temporary mischief," even one that
threatened the very existence of the Union. Similarly; the U.S. Congress,
out of a combination of First Amendment and federalism concerns, rc-
fused to outlaw the m i h g of abolitionj.stliterature to the Soulh.
A generation later the abolitionists' message that at first fell upon deaf
or hostile ears had become orttnodoxy in the North, h part because of
s p e e c h a n d the legal traditions that pmtected it-coxlisciousness shifted
so that a once hated sentiment became the moral justification for the
North's position in resisting secession, That it took b e for abolitionist
ideas to replace the dominant ideology does not belie Lhe '"prime terliet of
liberal jurisprudence" that legally unrestrained public discourse helps
" a a d v ~ esociety to greater fairness and hummity" For it has never
been a tenet of free speech that unrestraillied public discourse will quir:kly
lead to social progress or even that it will in every instance lead directly
to enlightened social policy*Rather, the claim is that, on the whole and
over time, unfettered public discussion will Iead to a fairer and more just
society than will government control over the content of pzrblic dis-
CQUrSe,
Delgado and Stefancic recog~rizethat what at first seem tru be fanatical
and dangerous ideas may in, retrospect be considered tmdeniable claims
for simple justice. This awareness supports rather than undercuts modem
doctrine's insiste~rceon p t e c t f n g "the thought tltat we hate."" They are
correct that social criticism that clashes with the "'dominant narrative"
will usually not be imediateIy influcmtial. Indeed, the odds may be long
that ary idea that c h a n g e s "'dominant narrativefhill ever be generatly
accepkd. But if these "still small voices" aar silenced, tlte Chmces that
new ideas will eventually shift our consciousness will be even further di-
minished, if not complekly extinguished. It is worth noting that o q in
countries with m tradition of free speech do pra"icewuch as torture,
slavery genocide, ritzralistic female genital mutilation, lack of rudirnen-
tary crilninal due process, and legally sanctioned oppression of women
cmtkue to Elt-rurishas part of the '"ominant ~rarrative."

Free Speed8 Doctrine and the Civil Riglzts Move~ient

As part of the daim that h e speech doctrine works against the interests
of minorities, radical critics dispute the conventional wisdom that the
First Amendmerrt was an ally to blacks in their struggle for civil rights
during the 1960s. For instance, Delgado and Stefmcic kvrite:
[F]ar from being stalwart friends, [speech and free expression] can impede
the cause of racial reform. . . . [Wlhen insurgent groups attempt to use
speech as an instrument of reform, cotrrts abnzost itzmrinbfy cor~struethe First
Arnendl~enfngai?zs.E.them. [ThusJ civil rights activists in the sixties made the
g ~ a t e sstrides
t when they acted in defiance of the First Amendment as then
understood,%

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.^'

h t e c t i o n ofthe N U C P . As useful as New X ~ r kTimes zt. S~i11Z'~lik~

was
to the civil rights movement, a series of lesser-known cases was even
more helpful. Soon after the Supremc Court heid sepgation in pnbljc
school unconstitutional in Brawl-z z~. Board c$ Educatio~z,southern states de-
&red war 01%the civil rights orgm~izationthat had brought that case on
behalf of the back schoolchjldren. Organized in 1909 ""t promote equal-
ity of rights and eradicate caste or race prejudice," the NAACP quicWy
followed up on its wic.tory in Bmwtl with litigatio~~ enforcing that decision
and nekv lawsuits attacking segregation in. other public instituti~ns.~~ The
southern attack on the NBACP took two main forms: legislation that di-
rectly disadvitnt~edthe organization or its memhers and attempts to in-
jure the NAACP hdirectly by requiring the organization to identify its
members. As the aulhors of this regressive legislation were welf aware,
First Amendment protection of po:iitical advocacy groups was at that time
wholly inadequate. This sad state of affairs was a result of the extreme
deference the Court paid to legislative attempts to cripple the Communist
Party. Nevertheless, the courts would totally frustrate the efforts oi south-
ern states to hamper the N A K R
 h example of a direct attack on the NAACP was m Arkansas law that
bared any merrrher of the :NAACIJ from public employrrrent. The law
was justified on the ground that because the NAACP had created racial
e the state m d had stimd up "dissatisfaction m d unr@stamong
s t ~ f in
Negroes,"' merrrhership in that organization was incompatible with the le-
gitimate goals af the state, To tmderscore the connection with anticorn-
munist lanls &at the SUp~(3me Court had previously upheld, the pream-
ble to the Arkmsas law c o ~ ~ t a h ea dfinding that the RTAACP "is a capti\re
ol the international comullist conspiracy."' fn Sheitorz a McKinley, a fed-
eral district court invalidated the law, and the state h o s e not to appeal."
That the state wodd so easily throw hthe towel might at first seem sur-
prising giwn that the Suprerne Court had held mly a year earlier that
members of the Communist Party could be denied public employment."'
But previous cases had also show11 that the Court would steadfastly pro-
tect the NAACP (and indirectly its own decision in Bmwn) from the ire of
southern legislatures, even when the attack on the civil rights organiza-
tion was far less direct than those against the Communist Party that the
Court had pre\ciously sustairred. But before turnil~gto these cases, I
should mention one more case involvillg a direct attack 0x1the NAACP.
Rules governing the kgal prokssim traditionally prohibited solicita-
tion of legal business. Prior to Brown, Virgifiia, like most states, did not
apply this rule to legal organizations such as the NAACP, which brought
lawsuits not for pecuniary gain but to a&vance a particular social policy
In 1956, however, Virginia, as part of a packqe of laws passed durhg a
special legislative session called in res;ponse to Brown, amended the pro-
hihilion on solicitatim to include legal action g r o u p ~ u c has the NAACR
If allowed to stanrl, such a restrictio~~ wouid have sipificantly hindered
the NAACP, which actively sought out clients to challenge segregation
m d other discriminatory practkes.
:In hlAACP U. Button, lrhe Supreme Court iwalidated the pr~""hbition.~
In an opinion by Justice Brexrnan, the Court explained that the First
Amendment protects not just speech but '"vigorous advocacy" in the
courts as well: "In the context of M C P ohjectivcs, litigation is not a
technique of resolvillg diffe~nces;it is a mems for achieving the bwful
objectives of equaliy . . . for members of the Negro cornunity in this
country." Such litigation is thus "a f o m of political expression.'Waving
identified the importmt First Amendment value in public interest litiga-
tion in general, the Court, in a mfreshing burst of l g a l ~ a l i s mdiscussed
,
the pmticular impact that Alahamafs law would likely have on the
NAACP:

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,""

Critique of Economic lnrqtlity

The potentially important role af free speech in exposing economic in-
equalities, alt.haugh nat as obvious as its role Sn remedying racial jnjus-
tic% should not be overlooked. The failure to protect radical critics who
s a ~ vAmcrican invoivement in Miorld War I as a capitalist conspiracy and
commmist agitators during the McClartEry era created m atmosphere in
which inequaGt-iesof the American capitalistic system could not be safely
criticized. %day, in cox-rscious reaction to these shortcomings, doctrine
provides strong protection to speech that vigorously and even abnox-
iously attacks the status quo, illcludiq the economic system. It remains
true that those with a vested interest in the stabs cp the rich and pow-
erful-have by virtue af their wealth and power an enarlxous advmtage
in the miarketplace of ideas. There is thus something of a chicken-or-egg
problem in looking to puhlic discourse to effect ecommic equality.
Moreover, significmt. economic refor~xis usual[ly brought about by eco-
nomic crisis. Although the world of ideas a d public protest doubtless
played some role, it was primarily the Great Depressim that was respon-
sible for the New Deal. The rote free speech will play in any fukrsr. eco-
nornic refom is impossible to predict, It is, however, safe to say that with-
out strong pmkction of radical critique of the c u r r e ~ccronomic
~t order, the
possibility of progressive refor~xwill be diminished.

The foregoing discussion shows that characterizhg free speech as either a

cmsistent ally of eyudity or its eternal. nemesis is simplistic and haccu-
rate. Ralrher, the relationshig between free speech and evality is com-
plex, and the rc?lat.ionsfiipbetween free speech doctrine and progressive
social chmge even more so, Where, then, does this ambivalent relation-
ship between h e spmch and equality leave us with respect to calls for
braad bms on hate speech m d pomographyxt mems, most fundamen-
tally, that questions about the constitutionality of hate speech and
pomgraphy r e w t i o n s canr~otbe determined simply by frm* tfie is-
sue as a conflict betcveexl equality m d free expression m d then making
some general, assessment about which value is more irnportilnt.
Singutarly uAeIpful is the cornmo~~ly heard radicai claim that in not al-
lowing these prohibitions, free speech doctrine exalts abstract values
served by free speech over the prevention of real and i m e d i a t e harms
caused by hate speech and ponlog.t-aphyz
Fos sweral reasons, this approach does not advance the inquiry. C3tn a
theoretical level, h e r i m free speech doctrine is racticall.y egalitarim:
Each person, regardless of race, religion, gmder, or social circumstance,
has the same right to try to persuade others about matters of public con-
cern. This right, it is true, is quite narrow. For the most part, it offers pro-
tectim only agairlst direct conte~~t regulation imposed by trhe gowe
m d does little to equalize the enormows advantage that a few people
have to influence political decisions and the marketplace of ideas, Nut al-
trhough free speech doctrix~eis not an unailoyed force for equatity,
American free speech right is nonetheless deeply rooted in equality, and
thus this value appears on both sides of the equation in any assessment of
trhe vaiues ahanced or impeded by hate specrcrh a ~ pornogmphy
d rewla-
lion.
On a practical level, it is not clear whether broad hate speech m d
pomgraphy bans wiIl serve or obstruct equaljty. 7%re potential of speech
~slrictiol-tsto backfire. agilinst the interest of those they are meant to serve
is well known. As discussed in Part 3, experience in other countries
shows that racial minorities and leaians hawe ofterr been the first tal-gets
ol expansive hate speech and pornography laws. In addition, such prmhi-
bitions on hate speech and pornography might inadvertently chill expres-
sion that is neither hakful nor porz~ograpltic,including exprcssio~~ that
act-ually promotes racial and gender equality Wkther the net effect of
sweepjng hate speech and pornography bans would be the promotion of
racial anrZ gender eyualily is thus uncttrtak.
Even on the assumplion that broad bans vn hate speech and pornogra-
phy wouln foster racial and gender equality, the modification of doctrine
that would be necessary to allow such regutatiom might nonetheless im-
pede the remedying of other hjustices. As radical critique so ably demon-
strates, the unfairness of lmg-stmding social arrangements+speciaI.ly
those that oppress the least powerful members of society----m often
largely invisible to tlze contemporary eye. As lrhe histories of the -nbolition-
ist, women" ssufirage, m d civil rights movements suggest, the freer the
public discussion, the more iikely it is that these inequities will come to
public cox~sciousness.Only a generatiox~or so ago, Ihe dorrrinant social
image of male homosexuals was that of "'perverts" who preyed on young
boys, m d the notion that women could be sexually attracted t-o each other
was so contrary to the prevailing view that it failed even to register on
most peaplle" consciousness. T%e suggestion in. the 1950s that gays and
lesbians were m oppre.ssc.6 mhority would have been an uninteIligihle
statement to most Americar~s.But due in large part to frank, w~censored
public discussion of homosexuality, in.cludi,ng sytnpatheMqporlrayds of
homosexuals in films, plays, and novels, discrimination against homosex-
uals is begil7ning to be thought of as closer to racism thar~righteous per-
secution.'"
5ure[y there exist similar inequities in sockty today that are as yet in-
visible to most of us. The radicais are right that the domii.la"~tsocial narra-
tive is often so loud that it drowns out competing voices. But it is pre-
cise%~ for this reason that we need powerful constitutional protection for
those Lvho challenge ihis narrative. Ma11y of these maginal voices are
marginill for good reasons, of cozlrse: Most advocate crackpot icteas-not
particularly harmful or offensive, but not useful either. Others, like the
bigoted wiews t-he radicals want to silence, are reactiox~arycalls to reirlsti-
tute practices condemned by history as oppressive and tmjust. But occa-
sionally to be found among this babble is a truly prophetic voice at first
ridicuied or despised, most often merely i p o ~ dbut , that slowly gains
adherents as it exposes the hjustice of some kvelll-entrenched practice.
In the song "B& Dyli\Rls 115th Dream," the protagonist reminds a man
who refuses to help hinl in a time of need that "they refused Jesus, too."'
The m m replies, "'Vau're not him." "milarly, radical critics could reason-
ably respond that although it is hard for contemporaries to identify the
p r o p k t whose words will s o m day lead to greater social justice, the
racist and the pornographer are surely "'not him," But whether hate
speech and pornography could conceivably be seen as progressive is not
trhe vestion. The perthalt an$ much m m difficuit vestion is this: Can
free speech doctrine be modified in such a way to permit government to
exclude from the realm of public discourse ideas that in its view are so
terribly wrong ancf regressive that they camlot possibly promote equality,
without riSkjlSg the chance that governmenl will also suppress highly of-
fensive critiques of the stattls quo that miglht well lead to a more just sod-
ety? Radical critics think that doctrhe can safely be altered; lrhe judges
and thinkers responsible for formulating current doctrine think other-
wise,
Whether as an empiricaf matter this distrust of government is war-
ranted or whether radicals are correct that goven~melltc m be elltrusted
to pluck certain regressive ideas from the r e a h of public discourse with-
out endmgering potcaztjally progressive ones is a difficult yestion that X
address at lellgth in Part 3. Far no^.: suffice it to say that it is not always
easy to tell progressive ideas from oppressive ones. This point was
brought home to me in the late 1980s in a conversation with two law stu-
dents, one of whom was a physician and the other a Iesbimr activist. The
topic was homosexuafity. The physician said that he thought homosexu-
ality was biological in origin ralher thm a result of swializatim. At first
the lesbian activist was offellded by this idea; after further discussiax~,
howe~*r, she agreed that this theory' rrat-fier than providing additional
fodder for discrhinatim against homosexuals, might acbally advance
arguments against such discrrimhlation.
Some of the arguments that cast the controlrersy as a conflict between
liberty and eyuality have an ad horninem quality to them. For instance,
according to Charles Lmrence, those who have arl opinion 0x1 campus
codes are either "civil. libertarians" who are insufficiently sensitive to
equality concerns and thus oppose these codes or those, like himself, who
properly haimce the various competing values. As proof of this lack of
concern for equality, Lawrence asserts that "'(tJhosewho raise their voices
in protest against public sanctims against racist speech have not orga-
nized private protests against the voices of racism.""" Such accusations are
unfair to those who are dedicated to achievhg racial. m d gender equality
yet oppose far-reaching bans on hate speech and pornography My col-
leati;ue Charles Calleros arda~tty1)~"poed a campus code at A r i z a ~ ~State
a
University because he thought it too broadly prohibited constitutionally
protected speech in public areas; indeed, Cdleros was instmmental in the
repeal of t-his code and its replacement with a more narrowly drafted
code that targeted harassment that materially interftlrctd with educational
opportunities. Yet Calleros has been second to m one in his publir cm-
ation of racist speech and, equally important, has encouraged shn-
dents to demonstrate against racist incidents on campus.'5imilarly,
Ceraiid Gunther, Lawrence" cdleague on the Stanford law faculv, was an
outspoken critic of fhe speech code that Lawex~cesupported. Gunther is
a Jewish refugee from Nazi Germmy, where he was subjected to anti-
Semitic slurs, even from his teacher, In a written debate with Lawrence,
Gunther eloque17tly summarized his po&tiion on the regulation of hate
speech: "[Tlhe lesson I have drawn from my childhood in Nazi Ger~xmy
and my happir adult :life in this country is the wed to walk the sume-
times difficult path of denouncing the higotsf hakful ideas with all my
power yet at the same time challenghg m y community's attempt to sup-
press hateful ideas by force of law."75
No Suprcme Court justice can equal the records of Thurgood Marshd
and Wliam BI.exu"tar~for dvancing the cause of cox~stitutionalequality
for women and mhorities. Bath were fervent foes of invidious discrimi-
nation as well as consistent supporters of the constitutionaljv of affima-
tive action. Before being appoinkd to the Court, mortrover, Mashail was
a legedary civil rights litigator, w i n g argued Rrorun U. Board of
Educatiarz. Both justjccs were also charnpims of free speech. Brennan, as
we have seen, wrote such monumental opinions as NL"w &rk Times v.
Szlllizwn m d the flag-hwming cases. Marsh11 wrote th.e hfluent-ialMoslry
decision that formally intt-oduced into free speech jurisgfudence the pm-
surrtption against content discriminatio3.1 and declarcd that the First
A m e n b e n t guarantees the right to "express m y thought, free from gov-
ernment ~entjorship."~" In contrast, justices with a much more cramped
wiew of constitu.tional equality such as Chief Justice Mncyuist and his
prdecessor, Chief Justice Burger, t e d to take a narrow= view of free
spee'h as well.
Shortly before he tired, Brennan slltemd to go out of hiti way to make
sure that no one could mistake his position on the constitutionality of
hate speech regulation. Tcms v, jolzl.rson involved Bag burning, not hate
speech.'W~.ionheless,perhaps because he knew that he kvotrld not be
around when a hate speech case fkaliy =ached the Court, Breman de-
clared that "[tlhe First Amendment does not guarmtee that . . . concepts
virtually sacred to our Natrio11 as a Mrhol such as the principle that dis-
crimination on the basis of race is odious and destructive-wilt go m-
questioned in the miarketplace of ideas." And in the Bag burning case a
year later, he wrote that " [ d e are -aware that desecratior~of Lhe flag is
deeply offensive to mmy. But the same might be said, for example, of vir-
ulent etlnrric and religious epithets."78
Years easlicr, Marshal1 m t e m opinion fos the Court striking down a
law that banned the posting of real estate "'For Sale" or "'Sold" "signs-';"
:Marshail agreed that tt7e ob~ectiveof the law-to promote raciaily inte-
grated neighhorhoods by preventing panic selling by white homeown-
ers-was laudaible. He nonetheless fomd that the meams of achieving this
end ivnpermissibly impaired freedm of speech by keeping important in-
formation from the public. h d &spite having been leaders in comtruing
the Equal Protection Clause to outlaw invidious gender discrimhation,
both Brennan and Marshall have b n g argued that the obscenity exception
tru First Amndment protttcriiorr should be overmled so that even the most
explicit and offensitre sexuaily oriented material would be pr&ected by
the First Amendment,"%nd both justices joivted the summary affimance
of the decision invalidaling the Indianapolfs clrdinarrce that: prohibited
pornography demeanhg to women.'1
Of course, Brennan mci Marshall might be wrong in their assessment of
trhe retationship betwem frce speech and equality in gerreral and in their
seerrting opposition to hate speech regulation in particuhr, But no orre,
not even Charles Lawrence, could ever accuse thcse justices of being in-
sensitive to eyualit;v concerns. Sixrtilarly,r n m y liheral feminists with
records of fighting for women's rights oppose far- aching rwtrictions on
pornography such as the one proposed by M a c K h ~ nThe . ~ same is true
of the .ACLUf which rivals the National Organization for Women in its
support of the feminist age~rda..
People equally committed to equality can have good-fai"c disagree-
ments about the best way to attain it. The charge that those who do not
support bate speech and pormgraphy legislation are in!;e~rsitiveto equal-
ity concernear even, as both Delgado and 1,awrence have claimed, ben-
efit by bigoted speech because it keeps mi~~orities "off balanceff-is unjus-
tiiied and urrbelpful." Suuch argrrments are ~ r n h i s c m oft the accusation
that those who advocate fair criminal procedures or oppose the death
penalty are "soft on crime" and bave insufficient concern for chme vic-
tims or the assertion that those who on First endment gmu-rds op-
posed thc persecution of comunists duriflg the McCa.rth,y ail WE un-
American and themelves sympathetic to communism. Racfical critics
who make these charges (arrd not all do) wouid do well to chop them.84
But those who favor hate speech res.b-ictim are not the only ones who
reduce the hate speech controversy to a clash between equality and free
speech ard then seek to solve trhc problem by arguing for the primwy of
one value over another. h condeming campus hate speech codes, Colin
Divert as dean of the University of Pennsylvania Law School, recognized
that "[dliversity, civility harmony respect, [ard] communityrfare impor-
tant values. He insisted, however, that these valt~esare ""secondary to
freedom of exyressim" and cmcluded therefore that "[ilf the value of
free expressiorr conflktr; with the value of harmony or diverdy, free ex-
pression should prevail. 13eriod.rr85
:I am not sure whether Diver means for his fomula of free exprwsion
iibe UIII"S fiU apply just on cokge campuric.~or to socrkty as a whole, hut
even if it wero limited to universities, it is manifestly wrongheaded and
unworkable, 1doubt very much that if black stuknts had complained to
him that a professor continually used racial epithets to refer to African
Americms in. the classroom that he would refuse to take action becatrse
"free expression should [always] prevail" over c o m u n i t y and civility
norms. Indeed, I suspect that if in one of Diver's ~ W I Iclasses students be-
gan htxrling vulgar epithets at each other during a heated discussion,
Diver might seek to reimpose civility norms despite the dampening of
free expression.
In summary; the relationship bet-vveen free speech and equality is not
reducible to sirnple slogans. Nor can we avoid the work of detcrminirrg
w h e t h r hate speech or p0rnogra"phy regulation advar~cerr;or retards
equality by resorting to gex~eralpresunnptio~~s. We must instead carefuily
analyze the particdar regdation at issue, includi,ng the consequences
that upholdjnf: it would have m the entire body of free speech doctrine.
Also pertinent is the experience of other countries that have enacted such
laws.. Even then, given the ~ e r e n difficulty
t in deciding causality in a
complex social setting, we cannot with certaiz~typredict the e h c t of such
regulatio~lson racial and gender equality, But at least our conclusion wiIl
be an informed judgment rather than an i$eologicd assertion,
This page intentionally left blank
 PART T H R E E

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.

h calculating the possible h a m s of hate speech, it is once again crucial to

distinguish between hate speech that is part of public discourse-such as
racist ideology expressed at the speaker's area of a public park, in a pam-
phlet h a ~ d e dout on the street corner; or in a book sold at a neo-Nazi
bookstore-and racist expression that is not part of this discourse-such
as the use of racist fighting words or racist remarks in the classroom. It is
true that: the harm caused by face-to-iace racist epiehets of racist tirades
by a classroom hstsuctor overlap to same extent with the injury catrsed
by racist public discourse, but to a much farger extent the harm is disthct.
I have already consiclered racist fighlinf: words a r ~ dcampus hate speech
and have shown that current doctrhe may well permit the prohibition of
much of this cxyressiars.through properly drafted regulations. Here, how-
ever, as Irhrougbut most of this hook, I am concerned with proposais to
broadly b m hate speech from public discourse; thus I focus on the hjury
caused by this speech.
Ihe q r c " s " i o n of racist ideas as part of public discourse is alteged tru
catrse bath direct and indirect Wury to minorities. Elate speech is said di-
rectly to cause psychic injury to those who encounter this material by vi-
ciously attackjng their race or eth~icity-katures crucial to ol~e"person-
a'rity but over kvhich one has no controi. In addition, hate speech is al-
leged to cause harm indirectly by affecting the way others perceive
minority group" m a h g it more li:kely that those exposed to racist propa-
gmda kvi1l mgage in acts of discrimjnation and even violence agilinst mi-
norities. Pornography, particularly vlolent and degrading pornography
is similarly saicl to lead to discrimination and violence against w m e n
through its power to shape the way men view women.

Offense,Insult, a~zdPsychic Injury

The most obvious h a m of hate speech is that it is deeply offensive and in-
sulting, particularly to members of the groups attacked by such propa-
gmda. But because col~temporaryh e speech doctrine definitively rejects
offensc and hurt feelings as a legitifnate gromd for suppscrssing publ,ic
discourse, this ratimale is rarely mentioned by proponents of hate speech
bms. Instead, they a q u e &at such expres"i"" causes not mere o&me or
insult but psychic injurqr For instance, Masi Matsuda c l a h s that "[vlic-
tims of vicious hate propaganda have experknced physiological symp-
toms a r ~ demotimlal distress ranging .from fear in the gut, rapid pulse rate
and difficulty in breathing, nightmares, post-traumatic stress disorder,
hypertensim, psychosis and suicide.""sut the studks she cites for this as-
sertio17 deal with racially mtivilted vioknce, other acts of racial discrimi-
nation, or harassment of hdividual victims, not racist propaganda aimed
at a wide audiermce. Thus Matsuda reports that a study by the California
Department of Justice found that "'racial epithets and kumssrut~~f' often
cause deep emotimal scarring, and bring feelings of intimidation m d
fear that pervade every aspect of a victim" life," Also beside the point is a
psychiatric study findilTg that "survivors of extreme persecutiofl suffer
scrlotrs, long-lasting psychological distress.'
'This is not to say, of course, that a.11 African erican who in the park
hears an orator proclaim the ir-tferiority of bla r a Jwwho on a busy
street corner is handed a pmphlet denying the Holocaust will not suffer
emotional injury. But it cannot be assumed that the severity of this emo-
tional ir~juryis the same as the emotional trauma caused by racist taunts
directed at an individual. As Matsuda herself recognizes, "The unpro-
voked and unpred le nabre of bigoted attacks acids to the anxiety
they crtrate. M i c I-lca~s
have been subjected to racist attacks while
engaging in.cornmanplace activities such as chmging a tire or attendkg a
church picnic,"' In terms of e m o t i o d injury to the audience, the use of
racist epithcts dimcted to people simpiy going about their business is oh-
viously a very different matter from the puhlicalioll of a book that ern-
ploys such epithets or otherwise expresses a m i s t viewpoint. Particularly
wherli racist vehal attacks orli arli individual are so persistent as to consti-
tute harassment, the harm is likely to be far greater than exposure to a
racisuract or speech, Thus Matsuda's x f e m c e to a case documenting a
nervous breal.lown suffered by a woman subjected "to repeated racial
harassment, hcluding nooses hmg;ing over her deskftP4 is certahly rele-
vant to an argument for prolnibiting racial harassment in the workplace
(which federal law a l ~ a d ydoes). But this and similar reports of irlijury
caused by racial harassment do not tell us much &out the harms of racist
ideas expressed as part of public discourse.'

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.~

Prunzotifzg Xncis t and Sexist Beliefs

According t m a t s u d a , hate speech is penliicious because ""at some level,
no matter how much both victims and well-mealing dontinant-gmup
mem,hers resist it, racial inferiority is planted in our minds as an idea
that may hold some tmth. The idea is improbable and abhorrclnt, but it
is there before us, because it is presented repeatediy.'"' Although the so-
cial science data Matsuda offers in support of this claim are skimpy, it
cannot be seriously doubted that to some extent the public expression of
racist ideas has perpetuated racist beliefs in this country":'Again, how-
ever, a key question that Matsuda and other proponents of hate speech
laws do not address is to what extent the public expression of expljcit
racist ideas, as opposed to private racist sentiments passed from parerlit
ta child or subtle racist images pre~ralentin the poptrlar media, con-
tributes to the perpetuatim of racist beliefs. My own bunch is that in
contemporal-yAmerican society the puhlic racist statements that propo-
nents of hate speech lircvs want repressed only marginally contribute to
instilling racist beliefs in others. I suspect that a far more significant
contribution is made by private conversations d subtly racist puhlic
expression, both of which far practical reasons are beyand the law's
reach,
:Ihave this impression for t w reasolls. First :Ifind it dou$tful that m s t
Americans woulct be d u e n c e d by gruesolne characters such as the neo-
Nazis, s k ~ e a d sm, d Klansmen who make these pronouncements; any-
one swayed by such speakes was likely racist before encrounkring trhis
prvagmda, which serves mostly to reinforce their prejudice. Second, un-
til quite recently, hard-core racist propaganda has not been widely avail-
able. hdeed, in doing research for this book I had to make an extmded
effort to find contemporal-y racist pub:iications. 'That hard-corn racist puh-
icntions are not part of the rc.gular readiq materid of a significant nurn-
ber of Americans mduces the possibiliv that it greatly contributes to for-
matioll of racist beliefs in this country. Wth the a d v e ~ of~ t the Intenlet,
holvever, racist materials have become more kvidely available.'qt rrcmahs
to be seen, though, if there is much demand for this noxious fare beyond
mere curiosity.
Several recent studies have shakvn that exposure to sexually violent
pornography tends to have at least a short-term negative effect on the
way men view womern, includirTg increasing beliefs that womm secretly
want to be raped and that victims of rape are less kvorthy and less in-
jured,'%nd udike racist propagmlda, pormgraphy is prcvaleznt and eas-
ily accessible in this society. k t the prevdence of aictlelzt pornography
fozmd in laboralory experimmts to cause this "sexual callousness" has
not been documented. In the Appendix I review in detail the various cm-
flicthg claims itbout the arnour~tand nahre of violent pornography and
its possible effect on men" attitudes toward women. I. conclude that al-
though Be evidence is far froxm conclusive, the possibility that pamogra-
phy may play a significant role in shaping lrhe way h e r i c a n men view
women is caklse for concern.
Let US assume, for the sake of discussion, that racist progaganda is a
major cause of racist beliefs and that por~lographycauses men to have
sexist beliefs about women. Not everyone would agree, however, that be-
liefs alone, even the most pernicious mes, count as a harm that govern-
ment may legithately redress Irhmugh coercri\re means. 'There is one m m
step to estabishing an effect: most would acknowtedge as a legally re-
dressi_bleham, n a m e l ~that these beliefs lead to acfs of racial and sexual
discrirnhlation or violence,
Causing NIegul Acts of Discrimination
and Violence Against Minon'ties and Women
A long-siding argument for banning hate speech m d pornograyhy in-
vokes a more famitiar raiior.de for suppressing speech-that the speech
will lead those exposed to it to act in har~afulways. That there is a st-rong
connection between racist beliefs and racist acts cannot be doubted,
Indeed, it would be unusual for a persorl e q a g h g in a racidly discrimi-
natory act not to have racist beliefs. (A blackmailer \vho preys an immi-
grants of certain ethnic groups because he :knows that fur culkral reasons
they are less likely to go to the police might be a rare example of racial
discfiminatior~not motivated by racism.) But the corlvers
beliefs inevit.ably lead to racist acts--& a much mu= doubtful propog-
tion. tf discrimination is conceived broadly enough to include such pri-
vate choices as decidhg not to marry or to have close frierldships with
people af certain racial or ethnic groups, then it may well be true that
racist beliefs, at least deeply held ones, will virhallji always lead to racist
acts. But if the racist acts in vestion are leg* cogrlizahle ones, such as
discrimhation in, the workplace or racially motivated violence, then it is
simply not the case that all people with racist beliefs engage in racist acts.
Siimitarly, it is underliable that cataskophic injuries to racial or ethnic
groups such as slavery and segregation in the United States ar the
Holocaust in Europe could not have o c c u r ~ din the absence of wide-
spread racist bekfs; it does not follow, however, that the increase in racist
beliefs cazzsed by the speech that pmponents of h t e speech legislation
would suppress will lead to the rehstitution of slavery lcgally imposed
racial segregation, or genocide- Such high-st&s argments for s u p p ~ s s -
in8 hate speech are particulaly t~npasuasive.There would have to be
far-reaching changes in American society m d hstitutions before mcist
beliefs could lead to such enormus irTjuries. TITUSeven if we accept the
propo"tion that public expression af explicitly racist ideas significmtly
increases racist beliefs and that these 'beliefs in. turn lead to discrhinatory
acts, the vestion remains as to the type of ciiscrrimhlation caused by these
beliefs. The proponents of hate speech bms present rro data showing that
racist propaganda is a significant cause of unl~zof~kl discrimhatory acts.
:In contrast, ttlrose who aclvocate barnling parrlograpby point to st-udies
they claim establish "'a catrsal connection betkveerr pornography m d via-
lttnce against women."" The shndies include experimer~tsshming that
exposure to violent (and perhaps nonviolent but demaning) pornogra-
phy hcreases aggression agahst kvornen in, laboratory settings, as well as
studies showing a corl-elation beweczn consumption of pornography m d
wio(er.lceagainst women, I discuss these studies in detail in the Appendix,
where 1document the &stacks pseventing extrapolation from the labora-
tory to the real world, as well as trhe limitati01.1~on what: can be ir-tferred
from the quite contradicwry correlational.data. Although it c m fairly be
said that these skrdies supply some evidence that certain tlryes of pornog-
raphy contribulr, to the complex host of factors causing violence -against
women, this evidence is not nearly conclusive enough to warrant mqual-
ified statements about causality A much more accurate assessment of
these studies is found in the Report of the Srirgenr~GetzemIfs Wovkstz~tyon
Pt3rnograE7hy and Pzrblk N1.ulffr:"'fbmography does have its effects; it is just
not yet :known how widespread or powerful they really are. There is a
dear lack of extensive &lowledge or u11i1yhg Irheory, alzd globul stafer?.rmts
about. the eflect Q ~ ~ X ~ O S to
Z Ipornography
~ P fraue not yet bee11 sz~bsfantiafed.'"~
In cozrrlusim, then, those who assert that rad.st ideas expressed as part
of public discourse lead to ilXegal racist acts (as well as those who h y
such a conr~ection)offer little empirical ewidence for their positi01.1. The
catrses of human behavior are always complex; the extent to which my
parljcular hehavior is caused by the public dissennination of ideas may be
u~"tk~owahle. Given this state of uncertainty, the most that fairly can be
said about the relatiunship between publjc expression of racist ideas and
the occunence of illegal racist acts is that it is possi:ble that the fomer sig-
nificantly cor~trihuksto the latter. Any more defjnite claim is likely to re-
flect little more than one's deep disdain, for the ideas expressed by such
spee'h. With rrspect to pornography there are at least sorne data suggest-
ing a connection between pornography and violerlice toward women. On
the current state of howledge, however, no confident conclusions can be
drawn about whether pornography is a signifimt cause of this harm.

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.

Silencing Women and Minorities

A~~otrher harm that hate speech a ~ pornography
d iS alleged to share is the
power to silence. h recent years this argument has become a maixrstay of
those who advocate hate speech a d pornography restrictions and is
trhereforc w r t h examining in some detail.': Owen Fiss writes:

It is asserted that hate speech tends ta diminish the victimheme of worth,

thus Impeding their full participation in many of the activities of civil society,
including public debate. Even when these victims speak, their words lack
authoriq; it is as thaugh they said nctthing, This silencing dynamic has also
been attributed ta pornography. In this view, pomtlgraphy reduces wtlmen
to sexual cjbjects, subordinating and silencing them, It impairs their credibil-
ity and makes them feel as though they have nothing to contribute to public:
discussion."

As with many of their argtrments in support of bannixlg hate speech

and pornography, the propomnts of the silenckg argment offer no sup-
porting evidence." Despite Lhe lack of any empiricd data, however, it
may still be posible to ellgage in some reasor3a:ble conjecture. itbout the
muzzling effect of hate speech and pornography. First, the potentid of
spee'h to quell other expression would seem to depend enormously on
trhe type of spmch involved aithough hate speech that is part of public
discourse (e,g., racist propaganda published in books or made available
on a racist htemet site) might well mdercut the 'kuthority" or 'kredibil-
ity'kf mil~oritieswhen they do speak, it is dou:btfd that such exp~ssion
is re~onsibkefor much literal silencing. In contrask because of its power
to intimidate, a face-to-face racist epithet or other personally directed
racist expressior~nnight well lead to actud silencing."' As to pornography,
given its prevalence in this society, it is possible that this material is an
iunportmt part of the social rnatrix by which women are sexualized and
their inkltechnal capabilities d e ~ ~ iof
t dobscured. It is unlikely however,
that pornography results in literal silencing in the bvay a threat from the
Ku Klux Klan d i ~ c t e d
to a civil rights activist might.
Let us assume for t-he sake of arei;ume~~t that hate speech and ponlogra-
phy are significant causes of the devaluing and in some cases actual sti-
fling of the voices of women and minorities. Mirroring the values under-
lying free speech doctrine, this collsequence presents both an
ixldividualistic m d sacietal harm. As to the jndividual, such silencing irn-
pairs personal self-expression. But justifJiiulg hate speech and pomogra-
phy bnns based on ar~yindividuaiistic interests in speech p ~ s e n t lfie
s fol-
lolvhg damting problem: M a t prhciple justifies shut-ting up A so that B
may speak? Fiss recognizes that there are no legitimattz grounds for pre-
ferring the self-exp~ssiveinterests of women and minorities over those
of pornographers and He seeks to avoid this problem by focus-
ing entirely on the instrumental vduc of free speech and arguing that
such silencing mi\y well deprive pub[ic &course of wmthy perspecti:\ies.
Rut this move merely trades a theoret-ical problem far m empirical one.
Fiss proffers neither evidence nor even a sustained argument that pub-
lic discourse has been deprived of some idea or perspective because of
trhe stifling efiecri of hate spee" and porl~ography.Nor car7 it be assumed
that the public debate has been so impoverished, for it is entidy possible
that whatever the silenced person would have said will be or &ready has
been expressed by others. Proof Lhat certain perspectives are d s s i n t ;
from public discourse is admittedly hard to come by. Still, to investigate
this possibility one could cmduct a survey of women and minorities hop-
ing they would reveal s o w suppressed views to a sympathetic inter-
l4ewer. Or despite the perils of cross-cultural comparisons, one could ex-
m i n e public discourse in countries that have outlawed racist speech and
pomgraphy for views missing in American discourse.
Sjnce nei&er Fiss nor any other proponent of the sjlencirtg argurnent
has undertaken any such investigation, we are left to speculate about what
ideas or viewpoints hate speech and pornography might be suppressing.
One possihitjty is tnessagc\sof gender and racial equnljty-the antithesis of
the perspective conveyed by hate speech m d posnography. But this tieems
u~dikelyAs explailled in the analysis of lfie ""market failure" "stification
in Chapter 6, wher%teror not the idea ot racial m d gender eqz~a1it-rhas be-
come widely implemenkd or even accepkd, it c m hardly be maintained
that the idea is absent from public discourse, Nor is public discourse bereft
ol radjcal, pc.rspectivc.s fmm women and m?inorities, as is demonstrated by
the widespread dissemination of the views of MacKinnon, Andrea
~ , Earrama~,M d c o h X, and other radicals.
D w o r ~Louis
Cdf cowrse, despite the existence of a wide variety of perspectives on
racial or gender eqrrality, it is still possible some perspective might be
missing from public discourse. But this is pure speculation. Much less
speculative is that criminal sanctions against hate speech m d pornogra-
phy will over time dc.prive the mahtplace of ideas of certain racist and
sexist perspeclrives as wdl as inadvertently suppress ideas that are not in
fact mcist or exist. Rut in disfavoring racist and sexist views in this wa).;
the state is surely not acting "as a faiminded. parliamentarian, devoted
tru having all views prc.se~~ted,'>sFiss clahs." Fiss's silencing argument
therefore canslot be taken seriously.
 MacKimon offers a sornewhat more persuasive variation of the silenc-
ing a r p m e ~ ~She
t . Ciaims that ""pomot;raphy a ~ its
d protectim have de-
prived cvomen qf speech, especially speech against sexual abuse," be-
cause women are ""seen to love and choose [their] chaixts because they
hawe been sexualized.'"'" In other words, because pon~ograghyco~~ditions
peoy,le to perc-eive as normal, healthy sexual activity what is in fact sexual
abuse, this materia.1effrctkely silences women (and men) from yrotesthg
this abuse or wen seeing it as such. Although MacK on, like Fiss, offers
no concrete evidence for her argument; it seems plausible given pornog-
raphy's ppfevalence that this material plays some signifjcant role in defin-
ing which sexual. behavior is considaed acceptable in our society and
which is co~~sidered abusive and in this sense "silences" "protest -against
sexual abuse.

Harm in the Production ofPornography

The Attorney C;el"teralfsComission on Pornography reportdhat "at
least some performers have been physically coerced into appearing in
sexually-explicit material, while others have been forced to engage in sex-
ual activity during perfomances that they had not agreed to beforc-
hand.'"'-"In additiom, the commission form$ that the performers are "nor-
mally young, previously abused, m d fhmcially strapped; . . . that on the
job they find exploitive economic anmgements, . . . strong temptations to
drug use, and little chance of career advancme~~t; and . . . that in their
personal lives they will often suffer substantial hjnries to rtra.eionships,
reputiiltim, and self-image."p No study, however, has attmpted to quan-
tify how ddespread these various &uses or injuries are. Indeed, the
commission acknowledged that "'exceptions exist to all these findingst
and we cormcede, as well, that extremely thorough investigation xnight
prove one or more of thm untrue.""26

Idmtifyk~gthe harms of hate speech a ~ pornography

d is only a first step
in assessing the probable benefits of hr-maching pornography and hate
speech bans. h o t h e r key ixlquiry is evaluat-ing how well such legislation
would combat thc harms allegedly caused by this expression. But before
legislation can be effective, it must be enacted. Thus a question prelimi-
nary to any malysi.s of the likely effectiiveness of broad hate speech and
pornography bans is whether such laws would in fact be passed even if
doctrine were modified to permit such legistation. This ir~quiry,often
overlooked in the debate &out hate speech and pornography regulation,
is an iYnportant one, for it is not at all certain that removal of the constitu-
tional barriers would rcsult in ihe e ~ ~ a c m eot: r ~l tw s generatly barnling
hate speech and pornography, either at the federal or state and local
levels.
Pornography is big bushes.;. Like -all powerful intermts in this coun-
try, the pornography industry has political clout that alone mi&t be suf-
ficient to block bans m its product, especially i f such a ban we= to in-
clude mainstream ""soft-core" phublications and films. Rut the political
power of the pornography industry is min~~scule when compared to the
various organizations of publishers and broadcastas who, although not
themselves distributors of pornography, c o d be cowxtec.1 01%to oppose
a natior~albar7 on pomography as interfaing with tlte right of the press.
And when the conservative distaste for federal laws regulatiag areas tra-
ditionally left to the states is added to the mix, the political realit). is that
any broadfedern[ bar1 0x1 pornography is not in the o i h g , at least not in
the immediale futz~re.Sirnjlarly, the combined power of the pornogmpby
industry and the mainstrem press are likely to frustrate widespread
bans on porr~ographyat Lhe state and local levels.
In addition, even if the Supreme Court were ta modify free speech
doctrine to permit broad pomography bans, state court judges inter-
preting the free speech provisior~sof state cmstitutions might invalidate
the laws; it is even possible that many state legislators kvould still be-
lieve broad pornography bans are inconsistent with basic free speec.h
prillciples. As Macf(inl7on &serves, the tenets of current America1 free
speech doctrine are inculcated at an early age." Rightly or wrongly'
many Americans have become attached to them, viewing them as part
of our national heritage. again, if the Court were ever to abandon
these principles, their normative force would likely wither ovcr time,
makinl; broad hate speech and pomography bans more acceptable to
future generatiol-rs.
Assurnixlg that broad hate speech and pornography bms could be en-
acted either at the federal level or by state and local jurisdictions, how ef-
f ective wmld these reguiations he? The curre~~t ~~"tproductive attempts to
ban hard-core pornography suggest that any braader por~~ography ban
might also prove ineffective. Although most states have laws baming ob-
scenity, fhis material remains ~ a d i l yavailable nationwide to any adult
who wants it.28There are many reasms for this phenomenon. 7b begin
with, a few states have chosen not to forbid obscenity Btlt more impor-
tant, in many jurisdictior~swhere the sale of hard-core pomography is
te&nicaUy illegal the bm is enforced only sporadically, if at all. h d given
the ease of trmspu"t"tim among states in this country, citizens in states
where bans on the sale of obscene material are enforced can obtain this
material in states kvhere it is available. Indeed, despite the federal law
against mailing obscene material, they cart even obtain it through the
mail,?%e Inter~~et, of course, greatly exilcrerbates the problem.
meoretically, the spread of pornography from states that choose not to
ban such material into states that do could be halted by a federal. law irn-
posk~ga natio~~wide $m. But even ht-he unlikely event that national pm-
hibition on pornography could be achieved, there would almost certahly
still be a th:hpiving black market for the product similar to that for liqu.or
durk~gProhibition and for drugs today. Or perhaps a more apt compari-
son, in, light of MacKb~non'sobservation that pornography appeals to ba-
sic carnal desires, is to the persistent but futile attempts to stamp out
prostitutio~~. Because pornography it; so pervasive, however, even a rela-
tively ineffective bar7 in a few jurisdictions might arguably resuit in sig-
nificarrt reduction of pomogmphy consunzption and hence possibly a sig-
nificmt decrease in violence m d other harmful conduct toward women.
Hate speech is not near:ly so ubiquitous as pornography w:fiichis cur-
rently available at mast convenience stores. The relative una\railabiliQ of
hate speech cuts b o t h ways in assessing the benefits of attempt-ing to sup-
press it. 01 the one hand, even on the assumption that racist pro~faganda
call lead to acts of racial violence and other discrimination, the relatively
small. amount of hate sgeech that cumently exists in this society suggests
it is not a s i p i f i c a ~cause
t of racial discriminatio~~. On the other hand, al-
though by no mems certain,, it may be possible \rirtualliy to eradicate the
public dissemination of hate speech by force of law. For one, there is for
hate speech no parall4 to the billion-drtilar pomography k~dustry.In ad-
dition, despite its attraction to those with deep-seated phobias os other
character defects, hate speech does not appeal to carnal deskcs and thus
does not have nearly the same allure as pornography.
It is true that many find pornography as disgusting as hate speech, es-
pecidly pornography that depicts women in dmeanjng ways. fsrdeed, to
somc. por~~ogmphy is ar7tiwoman hate speech, TO others, hwewer, sexu-
ally titillating material is just good fun. There is not even a consensus
ammg kminists about which sexually expljcit matct-ial is demeaning or
hamful to w o m n and which is b e n i p or even fern&-empoweri~~g emt-
ica. In contrast, there is a strong consensus that virulent racist propa-
ganda is both disgusting and of no positive social value, Like many lib-
eral feminists, Nadine Strossen, the president of the ACLU, deknds
pornography not only because she believes government should have no
power to censor images or ideas but also becauso she believes some
pomgraphy is beneficidXqtis inconcel\iable that she or my o t k r mem-
ber of a mahstream organization would similarly praise hate speech.
Hate speed, then, is a pariah, havhg neither posnographyk allure nor its
support. This accounts for its lack of prcvalencre in today's society and
suggests that, unlike pornography, it may be passible to suppress this ma-
terial. The question then becoxnes: What benefit is there in further reduc-
ing a type of expmssion already extrmely marginalked in pu:E"lic dis-
course?
To a large extent this question merges with the previous inquiry rctgard-
ing the. h a m of such speech. If it is tfie case, as I suripect, that publidly dis-
selninated racist propaganda (as contrasted with racist beliefs passed
from parent to child) is not a significant cause of racial discrimination or
wiolerrce, then suppressing hate speech c a ~ x ~do o t much to alleviate these
problems. Ccmversely, if this speech does cause these injuries, its already
marginalized status suggests that legal suppression might effectively re-
duce these injuries. But even if its relative scarcity means hate speech is
not BOW a significa~tcause of racial discriminatior~or violence, it could
well become one if such expression we= to proliferate, as it is thatening
to do on the hternet.""A broad hate speech ban could thus be seen as a
preemptive strike against such prolifuratim. Indeed, it has been a r p e d
that even the relati,vely small and winfluentid amount of hate spec.&
that now exists shouid be extirpated because in times of social unrest it
could lead to catastmphic harm such arr; raciaf ge~~ocide of lrhe type that
occurred in Nazi Ger~xrny;'~ As discussed above, however, it would re-
quire a far more fundamentd change in the basic character of our sociev
than social unrest before racist ideology could have such a disastrous ~0x1-
sequence.
The introduction to a recent collection of papers examining hate
speech reguiatio~~s in fifteen countries reports that ""fmost papers shm
the view that laws bvhieh restrict free expression da not reduce hatred ar
violerne.""" Ratkr, the effect ascrihed to such regulatiom is the protec-
tion of dignity and the maintenance of a civil tone in sociev. Similarly,
many studies in this collection stress the symbolic role af such labvs and
their important teaching function in reinforcing and instilling proper
values.
Because each country" legal system is intimately connected with the
naCion's urliyue culture, it is a mistake to place too much emphasis orz
other countries' experience with hate speech legis1af;ior.l.Still, these exam-
ples do suggest that thc pritn,ary benefit to be expected from a hate speech
ban in the United States would not be prevention of illegal acts of dis-
c r h i n a t i o ~or~ violence but the prokeion of i n h i d u a l dignity and the
shaping and mahtenance of proper societal values. Bans an hate speech
and pornography would in addition demonstrate to women and mirrori-
ties that those in p w e r at long last have begun to take their concerns seri-
ously and reassure them that aur lawlxakers do not share the degradhg
view of them portrayed in such material.""By showing worner1 m d mi-
norities that those in power are on their side in their struggic for digl'lity
and equality, bans on racist and pornographic expression might help
women and minorities h e c m e SS alienated and marginalized. The
qu~""i011with respect to these benefits, hwever, is whether they can he
accnmptiskd ~ u s as
t efkctively by other means, thus avoiding the costs
of speech suppression. This is a question 1 retum to in Chapter 10, in
which :l weigh the benefits and costs oi broad hate speech and pomogra-
phy bms.
This page intentionally left blank
Some of the asserted. costs of broad hate speech and pornography bans
stem directk horn the ~ g u l a t i m themselves.
s Such costs include the po-
tential misappiicatiorr of these laws to speech not k~te~~decf to bc prohih-
ited m d the selective use af these laws against mhorities. Other costs are
indirect. U n e potential indirect cost often ovcrlooked, particularly by
those who acivocak adoption of these laws, is the ge~~erai weakming of
free speech doctritle that m?ight result from modi..fivingit to perzxit: broad
hate speech and pornography bms. Xn this chapter I consider on3.y the di-
rect costs, posponing the ves.tion of the effect on free speech in gex~eral
to the next chaptec

As with the asserted benefits of hate speech and pornography regulation,

ma17y of the asserted costs -are quite specdative, a few even fanciful.
Perhaps the shgularly mast unpersuasive argument against baming hate
speech and pornography is the alarmist claim that modifving free speech
doctrine to permit the supprcssio1.1 of bate speech ard pornography will
lead us down the path to totalitarimism. Like the argument that not sup-
pmsslng hate speech in this camtry invites another Holocaust, the argu-
ment that ailowing lrhc suppressiox~of bate speech and pornography will
lead to American Buchenwalds and Atrschwitzes c a ~ n obe t taken seri-
ously. 7i, begin with, it was not until 1957 that the Suftrrmc. Court sug-
geded &at the First Amendment limits gover-rmental power to bar7 sexu-
alXy arimted material, and it wr-\s well into the 1.960s before the Court
began to define and enforce these limits with any rigor, Before that, gov-
ernment pretty mu& had carte hlanche to define and ban pon~ography,
at least so far as the kderal Constitution was concerned. Similarly, until
the landmark Warren Court decisions discussed in Chapters 2 and 31free
speech doctrine p ~ s e n k dfw obstacles tru hate speech bans. tndeed, as
discz~ssedin Chapter 4, in 1951 the Supreme Court actually trpheld a
broad ban on racial defamatim. Whatever the shortcomings of the U.S.
politic& order prim to t-he 1 4 6 0 it
~~ was m t totalitarian.
Most democracies in. the world today have some sort of ban on racist
speed, includil-rg the United Kingdom, Denmask, Frmce, Germany the
Netl-terlands, Canada, Israel, Italy, and swede^^. And near:iy all &mocra-
cies have long imposed legal limits on the explicitness of sexual clepic-
tions, some quite broad. The Canadian Supreme Court has in fact
adopted the M a c K i n z ~ o ~ - o r kratio~~ale
i~~ for the suppression of
pomgraphy." Yet none of these countries is s l i d a dawn the slope to to-
tialjtariarnism. Democracy's survival depm$r; not on some detnil of free
speech doctrine or indeed even m the existence of a charter of judiciatly
enfoxeable rights but rather on deepiy ingrained traditions of liherw fair
play, self-restraht, and ~ s p e cfor
t the rule of law*The United Ki.ng$om
has long been a thriving d e m r a c y despite the lack of any judicially en-
forceable hitations on Parliment's power to regulate speech or other
basic civil liberties.
The U.S. approach to free speech, with its prohibition of viewpoint dis-
crkinatio~ ~ pmtection of highly ir"tflammatwywords and symbols, is
and
unique- Perhaps other democracies would be even stranger if they were
to adopt this approach to free speech. Lacking the necessary hmiliarity
with these societies, 1 am m t cyualified to make such an assessment. But
that relatively broad hate speech and pornography restrictions did not
spell the end of vigorous publjc debate or otherwise undermine the es-
sential democratic character of these societies is evide~~ce that such re-
strictions would not have m y such catastropkic effect here. Reasomd de-
bate about the wisdom of hate speech and pornography restrictions is not
helped by hytiterical rhetoric or bypeibol on either side of the issue.

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,'"

ltzin advocates repiacing the current, vaguely w o r d 4 British obscenity

law with "civil rights'qegislation that defjnes pornography as the '"sexu-
ally explicit subordination of wc.,me~~." She argues that this change will
"'greatly reduce if not actually elirnkate the censorship" of lesbian and
gay material."' Recent events in Canada suggest that Itzeds hope is mis-
placed. In a 1992 decision, Regina a Butler, the Canadian Supreme Court,
at the urghg of lembist lawyers inspired by MacKknon m d Dworkh's
approach to pornography regulation, il-rterpreted Canadian obscenity
laws as outlawing not only sexually graphic violent mataial but also
nonviolent material that is ""Qegradkg" or ""dhummizhg" to
MacKhnon and Dworkh both enthusiastically praised this decision as a
trl-iumph for womcn. Within a year of the r u l i ~ ~however,
g, a feminirit
llawycr who kvorked on the brief urging adoption of the M a c a n o n -
Dworkin approach condemned prosecutors for using this decision to tar-
get lesbian bookstores. Since then, other feminists have made fhe same
complaint, and t-here is indeed considerat?le evidence t-hat Butler has Led
to discrimhatory pmsecution of lesbim publications-2"

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.""'

Do these depictions co~~stitute, in the words of MacKimon and

D w o r h ' s m d e l legisiatio~~,
"the graphic sexually explicit subordi~liation
of omen,'^ in which women are "'presented as sexual objects who enjoy
paln or humiliation" or are '"presented as sexml objects tied up or cut or
mutilated or bruised or physically hurtf"?Does it matter that the aulfior is
Andrea Dworkk and that the overall theme of her works protests the
subordination of women? It dbviously did, not matter to Canadhn cus-
tom officials, Lvho after the Bzktler decision adopting MacKinnon and
Dworkin's appramh to pornography reguhtion seized two of Dworkin's
books, claiming that they violated Canada" pornography laws.'l
Espe"i"lly when dealkg with human sexuality, terms suck as "suborcfi-
nation" or ""demeanhg" will. not sufficiently confine the prasecutorial
discxtion of law enforcement officials. As the Dworkin example shows,
even if there is agwement Ulat certain material depicts the subordination
0( women, the westion remains .vvheth,er thjs depiction is an endorse-
ment or a protest against such "oehavior, Because of this inherent subjec-
trivity, antipornography laws based on the n/iacKhnon-horkh model
are likely to be used to punish a significmt amount of artistic and politi-
cal expression not izztended to be prohibited by these laws and conse-
quex~tlyto chill wen more such exprewioor. 'This deep sulnjectivity also in-
creases the potential of these laws to be wed dispraporti,onately against
sexual. m h o ~ t i e s ,
Bny vague legal standard for regulating scxuai cox~ductenforced pri-
marily by heterosexuals cvouiid tend to have a negative disparate impact
on homosexuds. But terns such as 'Udcgrading," "dehummizing,"" "de-
meaniq,"" -and "subordinati~~g'" po"tive1y ir~vitesuch abuse. Because
mmy heterosexuals (even same who support homosexual rights) find ho-
mosexual sex acts disgusting, it would not be suqrising if heterosexual
prosecutors, judges, anct jurors m m readily found graphic depictior~sof
homosexual acts ta be more ""degrading," "&humanizing," ""dmean-
ing," and perhaps even more "subordinating" than depiclions of sirnilar
heterosexual acts. The restriction on public fu1.1cJing of art sponsored by
Jesse Helms applied not to erat.ic art but to homoerotic art. Similarly, it can
be seriously questioned whether the museum that exhibited Mapple-
trhor~)e'qhotographswould have hem criminally proseccruted if the dis-
play showed heterosemal activities instead of bmosexual ows."
A possible solution to the potential misuse of :laws hanpling parnogra-
phy demeaning to women is to adopt a page from the Supreme Court's
book and specify that it applies only to hard-care prnography This
wotrld minisnize any chillhg effect on serious artistic expression, and al-
thou* it wouM not necessarily reduce disproportionate impact on ho-
mosexual makriai, it would at least cut down on the ra"tge of homsex-
ual material. that is eligible far prosecution. So far, however, most
advocates of bans OPI pornogrqhy demeaning to women have refused to
limit the rewlation to hard-corc?material, insisting instead that lrhey in-
clude all "'graphic sexually explicit" materid. Perhaps they have been
right not to make this concession if the harm inheres not in the degree of
sexual eqlicitness but in the degree of subordinatio~~ depicted in an
erotic context. But the trade-off far the breadth of coverage is abandonirrg
the mchor that has prevented current pornography regulatim from be-
ing edemivety misused. AIterr"tati\rel)isincre violence is easier to d e h e
than subordination, imight be possi[blie to design a ban on sexually vio-
lent material that would not result in widespread misapplication m d
abuse.

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.

S E N D I N TGH E WRONG MESSAGE

In canvassing the possible benefi"c oaf laws banning hate speech and
pornography I: considwd the sytnbolic value of such legislation, both in
terms of the ps)ichologkal boost it gives minorities and women and the
normative shtement such bans would make to sockty as a whole. &re :l
want to note the possibility that such legislation might also send the
wrong message. It has been argued that hate speech restrictions imply
that minorities are emotior~allyweak ar~din need of special plmtecticm by
the state, thus adding to the ""victim mentality" that keeps minorities
down, when what is really needed is mental and emotional toughnesse4'
Similarly, ssome feminists have condemned pmposais to ban pornography
demeaning to women as pater~~alistic hterference that is itself dememkg
to women's status in society." " I dubious that hate speech laws will
have this liind of deleterious effect, at least to ally substantial degree.
There is no evidence of any such outcome in countries that have hate
speech laws. In addition, this possible result c m be minimized by laws
that ban all hate speech-as most proposals to ban hate speech in fact
ot just speech aimed at minorities." And if the argumerlt for ban-
ning pornography is to protect women from palpable harm, such as rape
and other forms of violence and job discrimination, it is hard to see why
such legislation should be demeaning to them.
A more powerful argument that suppressing hate speech sends the
wrong message is that forbidding the expression of m y idea ul-tdercuts
trhe commitment to critical inquiry. By expressly holdir~gthat within the
realm af public discourse no idea is aff limits, no thought tmthhkable,
and no orthodoxy i m u n e from challenge, c u r m t doctrine reinforces the
commitmel~tto critical thinking that has been a strer~gthof our socjety,
contributing to both our material. m d moral progress..One cost of madi-
fyhg doctri.nc to allow for the suppression of hate speech would be the
dilution, if not outright: repudiation, of tbis message.

Another argument against the symlnolism of hate speech legislatior~is

that using such laws for symbolic purposes detracts from the much more
important work that needs to be done in the area af racial. and gender
equdity. Like the death penalty for drug "kingpins," hatcl. speech and
pon~ographylegislation can he seen as just mother quick fix &at
Americans are so fond of-splashy, superficiaf remedies that do nothhg
to address the complex issues underlyhg brge societal problems but may
weil detract .from finding real solutions. A review of hate speech hws in
Britain and Israel concludes that

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.

The possible costs of hate speech a r ~ dpornography ~ g u l a t i o n:I have

listed so far have bee11 primarily detriments to society as a whole r a t k r
than to the would-be racist speaker or pornographer. Btrt if we accept the
view that free speech is valued nut just for instrumental Teasons but as a
fundamental p e r s o d right grou~ldedin a moral conceptio~~ of the rela-
tionship beheen the state and the individual, then these restrictions im-
plicate fundamenhl rights of those wishhg to express racist views and
arguably of those wishing to produce or view pornogmphic fmages de-
meanhg to women. This cost is most salient with respect to hate speech.
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This page intentionally left blank
Ss far I have considered the possible direct costs of hate speech and
por~~ography bans*I now turn to a potent;ially significmt indirect cost of
modify.ing cument doctrine to permit such bans-a general weakening of
trhe constitutional protection aff-orctedd&ate on matters of public issues.
Even radical critics do not favor totally abandoning judicialiy enforceable
First Amendment limitations on gwer ental regulation of expression.
Rather, they u q e t-hat free speech doctrine he modified to accammodate
hate speech m d pomogmphy tarns. But such proposed modification pre-
sents the difficulty of finding a p ~ c i p 1 ethat permits the suppression of
hate spmch and pornography hut at the same time protects e x p ~ s s i o n
that must be allorved in a democracy-or, to personalize the hquiry same-
what, still protects speech that radicals like.
Of course, there is alwa,vs the possibility of adopting a3 ad hoc, unph~ci-
pled raCionale for supp~ssinghate speetah m d pornography, s o w mu&-
hedged. "exception"' that has the appearance of prhciple but that does not
27- up to analysis. AI example of surh m unpk~cipledapproach is Chief
Justice Rehq~~ist's dissmt in the flag-bumkg case calling for m exception
to the principfe that government may not forbid offensive w a d s or symbok
used in public d i s c o ~ s eT. ~i be sure, unprimcipled dedsions by the Supreme
Corlrt are not ulneard of. But each ~mprirrciy>led decisicsrm undermhes re-
spect for the Court and hence the popular arccytance of judicially ermforce-
ahle c o ~ ~ s t i b ilimitations.
id :It is especially important that free speech de-
cisions be prinrliped, lest free speed doctrhe degenemte, as some radical
critics wrongly allege it already has, into a crudely political exercise in
which free speech protedion is bestowed o111y on those speakers whose
14ews advmce the "substmtive agendas'' the justices favorr2
 Finding a principle for suppressing hate speech that would not also gut
core free speech protection would appear to be a particularly difficult task
because, trnfike pornography, racist propaganda often takes the form of
core politic& speech. Racist tracts commonly denounce the morality, in-
tefiige~~ce,or culture of minorities as part of a r ~
attack 01%existing gwern-
ment policies such as affir~xativeaction or htegration or, in, more extreme
cases, in support of some horrific policy such as the deportation or even
externination of memhers of certain racial or ethnic groups.' kVh& princi-
ple can be proffered for stipping such speech of the strong prot.ection
usually afforded criticism of social policy?

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.

h o t h c r c o m o n l y prolfered rationale for suppressing hate speech is

that it inflicts psychic injury 0x1 minorities whr, encounter it. But is there
somc. principle to distinguish the emotiox~alinjury caused by racist propa-
ganda distr;ibuted to the general, public (as oppo""dta expression tar-
getcrd at specific individuals) from the emotional injury caused by other
types oi hflammatory public discourse? What growds are there for con-
cluding, fnr instance, that the psychjc injury racist put7ic discourse causes
minorities is any greater than the emotimal injury those who had sons
killed in Vieb1an.1 s u f l e ~ d
on sering "Support the \lietcongf>igns carried
by antiwar pmtestors"!r more damaging than the emotional k ~ u r yin-
flicted on Jeny FaZwell, as a result of the l'lzisflev magazine parody claim-
ing that his first sexual experience was with his moher in an outhouse?
Or more severe than the emotional har~xantii-rbartion pamphlets that dis-
play aborted fetuses in g o v detail cause to women who have had abor-
tions? Like the "'hamful k n d e ~ ~ c y rationale,
" the psycfic-ir~juryrationafe
appiks to more than just hate speech and thus could have a consi&mble
dmpening e k t on the d u s t n e s s of public discourse.

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.

Another c u r ~ n t l ypopular rationale for the suppression of hate speech

and pornugra_phyis the "conflict of rmstitutional rightsf9mtionale,If this
rationale allowed only for the suppression of speech that actually implj-
cates other constitutimal rights, it would be both fairly rlarmw and ohjec-
tive. It wodd not, however, cover most instances of hate speech. As ex-
plaked in Chapter 5, the VpicaX examples of hate speech that radicals
want to ban---a bigot's oratory in the park, a neo-Nazi parade, or tt7e dis-
tribution of Klan literature on the street cor~~er-donot implicate the
Fourteenth h e n d m e n t or any other part the Constitution. The same is
true of the pormgraphy sold by the local " a d d " bookstore or renkd at
the corner video outlet. hthcs, such speech implicates constitutional val-
tlcs. But unlike a theory that allows the suppression of speech that actu-
ally violaks other constitutional rights f as tl-recase would be, for insta~ce,
if government sponsored religious speech in violation of the
Establishment Clatxse of the First Amendment), a rationale permitting
supp~ssionof sgeech because it undermines constitut-ional values is ex-
tremely broad a-rd subjtrciitre.
Constitutional values are ntrmeraus-ranging from respect for private
property to protection of states' rights, from the comitment to rohust
puhlic discourse to msuring a strong natioml defel-rse. In addition, they
change over time, sometimes dramatically. A century ago the Court
thought that racial segregation was consistent with the Fourteenth
Amendment and that coniining wornell to tt7e domestic sphere was part
of the natural o d e r of things. Today these practices are thought to be con-
trary to bask cmstihtional noms. .R free speech system that disfavored
speech that attacked societd norms so basic that they fh-rd expl-essio~~ in
the Constitution as interpreted at any given time would particularly irn-
peril speech that challenges the status cpo. Justice Holms long ago ex-
plaincd that the essence of free spec& is 'knot free thou&ilt for t-hose who
agree with us but freedom for the thought that we hate,"'" Radicals often
sneer at this aphorism, caflin$ it a cli~hcit.'~
Less well kl-rown,however, are
trhe ci~umstancesthat pmmpted Holmes tru write these words.
Kosika Schwirnmer, a Hungarian immigrant; was denied Americm cit-
izenship because, as a pacifist, she could not commit to take up arms in
defense of the cml-rtry.The District C ~ mupheld
t ihe denial of citizenhip
on the grounds that she had not satisfied a requirement of the naturaliza-
tion act of "anachment to the prjnciples of the Constitution." The U.S.
Supreme Court affirmed t-he denial of citizenship. Although Schwimmer,
a forty-nine-year-old wornan, wns in m y event not eligible for military
semice, the Cmrt noted the "power" of her counterconstihrtional ideas to
"hfluence others,"
Some proponents of hate speech bms attempt to cabh the ""cntrary to
constitutional values" mtionale by seeking to privilege equality (or more
precisely today" ccox-rceptionof equality) over other constibtional values.
Fiss, far example, argues that equality has a preferred place in the consti-
tutimal order because "it is one of the center beams of the legal order. It is
architectonic."'""But a free speech prkciple that allows the suppression of
speech because it cbalienges "one of the center beams oC the kgal order,"
albeit narrow= t h a mtionale that allows suppression of speech that of-
fends any constitulionalmm, is nmetheless a fomtlja for a conservative
society. As Fiss notes in arguing for constitutional protection of homo-
erotic art fl-orn discriminatoq funding decisions, speech regulations that
rehiorcc ""morthodoxy"' betay ""one of Ehe fur~damentalpuqoses of the
First Amendmerxt.""""ut ""architectonic" in this context is just another
word for "orthodox."
Still, since only a limited number of values can valifyas "'center beams
of the legal order," fissfsrationale is fairly narrow But is it prfncipled? By
what criteria is today" srisian of equality privileged over property,
dmocrary natimal security, or other potential core conzstitutimal values,
including, by the way, free speech? Perhaps there is a prir-rcipled way to
make this determit.mtioa but those who &vacate the privileging of the
modem view of racial m d gender equality over all other constitutional
norms suggest none. Without such m expla~~ation, howevcr; clewating the
contemporary vision of equality over all other constitutional. norms
seems littfe mofe than an attempt artificially to constrain a rationale for
the suppresbn of hate spmch and pornography

H A R MIfN THE PRODZTCTION

OF PORNOGRAPHY
Citing both the coerrrion of young women into the pornography indusky
and abuse and mist~ahnentof .these performers m the job, Sunstein ar-
gues that this h a m justifies the suppressictr.~ of the distributio~~
of por1-r"-
graphic materiaIs." fustifiving suppression on this ground, howevel;
would have serious negative conseyuences for free speech doctrine.
Under this rationale, a c t i o ~films
~ could be banned because of the dmger
to stuntpeople, westerns suppressed because of the danger to anirnals,
and any movie with chid actors censored because of the dacurnenttzd ex-
ploitatiox-r of juveniles in the film industry. A m m direct solutio~~ to such
harln is, of course, regulation of production rather than distribution. Just
as the= are safe? rules for skrntyeopk, rcsthctions on the use of animals,
and Iimits on the haws children may work m d laws safeguardir-rgtheir
wages, special protection govemjng pornography production might be
wanmted.
Sux~stein,however; argues that because of the "peculiar setting" in
which pornography is produced and because of "'special. enforcement''
problems, directly h.ying to eliminate the h a m s in production would not
be effective and thus banning porl-rographicmaterial may be the only re-
alistic remedy.'%ere are several problems with this argument, Since
there has never been m attempt directly to regulate practices alkged to
cause harm in productio~~, it is not at ali certain that direct regulation
would in. fact be *effective. Moreover, there is no reason to believe that
insurmountable enfvrcement problems exist in all parts of the pomogra-
phy industry, including mainstream, high-budget productio~~s. Thus even
if for some types of pornography direct regulation of the production
would not be sufficient to do away with the harm to models m d actors,
this w d d be no justification for bar111ing all sexually graphi" material.
hdeed, such a broad pornography ban might have a perverse effect of
driving production un&rground, where abuse would likely hcrclaseaZ3
:More signiiicant, pemitting s u p p ~ s s i o nof an erltirt3 category of speech
just because there is ofkn harm associated with its productio~~ is a ratio-
nale that few would embrace. For *stance, we would not thhk it a suffi-
cient reason to ban invest-igative reports on the gmundjs that their produc-
tion ofte11 invo:lves deceit, fraud, trespass, or other iIiegal practices.24

Borrowing an idea from equal protectio~~ jurisprudence, some propo-

nents of hate speech tegislatio~~ bave tried to confir~ethe rationale for
punishkg hate speech by emphasizing that such expression attacks peo-
plc because of an imxnutabk characteristic. It is not at all clear, however,
why this fact justifies suppressing speech. 'The reasox1 that immutability
is importmt jn. equal protection jurisprudence is that penalizing same-
one for an accident of birth. is exceedingly unfair if it bears no reasonable
relationshig to any legitinrate gover~~ment purpose. But just because
speech is grossly unfair would not seem to be a sufficient reason for sup-
pressing it. Perhaps, though, immutability is invoked not aa a rationale
for slappressing speech but merely as a vchicle for limiting the b ~ a d t h of
other ratianales. For instance, it could be argued that because discrirni-
nation on the basis of race is particularly unfair m d because racially mo-
trivated violence is worse ihan other types of violence, it is principied tcr
suppress speech that has a tendency to cause racially based harm.
Similarly, it could be argued that speech that viciously attacks groups of
people because of an immutable characteristic is likely to inflict gmater
psychic injury than other types of speech causing emotional.harm.
But the concept of immutability fails to provide a principled way of
confinir~gthe harmful-tendency and psychic-injtlry rationales. Wtfn re-
spect to the har~xf~~l-tendenv rationale, it is not at all clear that the dis-
criminatory harms that racist propaganda tends to cause are mme
grievous than the harms of many other typewf speech*It certai*
could be argued that the tendency of antiwar speech to impede the war
effort or the antipolice rap music to lead to the death of police oflicers is
as grave a harm as racid vi&rlce and a far greater harm t h a ~ xlonvio-
lent forms of racial discrimination, such as discrimination in the work-
place. And as noted in Chapter 7, it is hard to make the case that racist
tracts inflict greater emotional illjury than other forms of caustic and in-
sulting public discourse.
Another problem with an irnmuta:ble-characteristic limitation of the
psychic-injury a r ~ dharmful-tendencry rationales is that race is by no
means the only immutable charactcrristic*Indeed, the list of immutabe
traits is virtuatiy endless, including (at least arguabIy) sextlal. orienhtim,
intelligence, mental i:tlness, virrious physical characteristics (including
obesity and a i m s @ ,alcoholism, a d antisocial or crimhld inclinations.
IThe large nufJlber of inzmutable characteristics suggests that this h i t a -
tion m y not be very confinhg. It a%soreveals that immutability may not
be a very good criterion for identifying particularly hamful speech. Is a
publication that makes fun of the physically handicapped really more
emotictna%l.y injurjng or mom likely to cause g ~ a t c discrirninatc-rsy
s harm
than an essay that ridicuies a particular relfgion? The lack of any obvious
correspondence between speech that attacks immutable characteristics
and increased harm undercuts the chim that this rationale is a princir>led
limitation rather than just xlother result-driven justificatio~~.

A reiated arpmernt often made by propox~mtsof hroad hate speech bans

it; that unlike the exp~ssioninvolved in the World War I Espiollage Act
cases, the Smith Act prosec~tion~ of communists, and the other classic
free speech cases, hate speech involves vicious attacks on peopk, not criti-
cism of government-or its polkies." The point here seems to be that hate
speech, though it takes theform of puhlic discourse, is really an attack on
people salher thm a legitimate part of the debate on matters of pu:blic
cmcen~,Like lfie immutable-characteristic argument, however, this ratio-
n& is pmbably not 0ffert.d as a sufficient reason for s u p p ~ s s i n ghate
speech (few believe that speech that dues not qualify as publiC: &SCOUPS~
should he completely bereft of First A m e h e n t protectiorr) but as
grounds for denying hate speech the rigorous protection afforded spctech
on miatters of public concem.
I h e problem with this argument is that the group defamation that of-
ten pervades hate speech is hextricably linked to social.and political.corn-
mentary TrJe can certair~lyquestion thc morality and character of those
who engage in such expression, perhaps even their mental heam. Ihere
is no reason, however, to doubt the skcesity of their political. m d social
views. It is untenable to maintain that all those whct write racist propa-
gmlida have no bmader social or political agexlida beyoxlid defami~ligmi-
norities. Rather, any fair assessment of hate propaganda as a social phe-
nomenon must achowledge that it commonly encompasses arguments
for social m d politimkchange. frli any event, allowing the suppression of
speech just because it involves attacks on groups of people is an ex-
tremely broad prinriple. f.t. would include, for instance, the vicious cri-
tiques of the male character found in s o m femirliist titerat~re~including
that of Dworkin and MacKirrnon, as weli the dsparaging m a r k s about
the capitalist classes that pervade much leftist litet-ahre.'"
But even if racist speech cannot be safely exchded from public dis-
course just because it involves attacks on groups of people -as part of a cri-
tique of social poj.icy, there may be other grounds for excluding at kast
some types of racist speech from public discourse that would not unduly
compromise core free speech values.

As we have seen, modern $octrine gerlieraily reserve its most rigorous

protection for p"b1ic discourse. AiChough doctrine generally coxlifi~lies
this protection to speech on matters of public concern in certain settings,
such as the "public forum" and media essential to public communica-
tion, it is extreme@ rductant to cxclude any speech from puhlic dis-
course because of its content..Ralh,er, the virtually irrebuttahle assump-
tion of current doctrine seems to be that any speech on matters of public
concern occurring within these settings will be highly protected xlio mat-
ter how horrific the ideas or how mcivil the expression. Thus the major
o b s t d e to broad hate speech legislation under current doctrine is that
much hate speech is considered to be part of public discourse. Some
hate speech-for instance, racial epithets directed to a black person
waiting for a bus-is of course not public discourse, But included in the
speech tkat propxliexlif;Sof hate speech Iegishtion wish to ban are racist
ideas expressed as an integral part of an argument for social or politicd
change, Although racist propaganda often advocates abhorrent policies,
such as stripping minorities of basic human rights, racist tracts some-
times also advocate mainstream political reforms as well, such as end-
ing affirmative action or curtailing welfare. But is current ductrine cor-
rect in coxwluding that hate speech is legitimately part oi pu$iic
discourse just because it espouses political or social change? A useful
line of inquiry in the search for a principled rationale for bmning hate
speech trhat would not gut the protection afforded other public &s-
course might be to reexamine this conclusion.
Advocacy of Law Violation
Not all hate speech adkrocates legal social change- m e worst of it urges
law violatim, violence against minorities, and even genocide, As dis-
cussed in Ckapter 2, curwnt doctrine protects aclvocacy of law violation
unless the expression amounts to jncitement to irnmkent lawless action
that is likely to produce such conduct. But if the prima7 instrumental
values served by free speech are democratic self-governance and truth
discovery, why should advocacy of law violation be protected? The very
concept of democratic: self-governancepresumes a process for making and
changing laws, and so lor~gas this procless is itself demouatic and suhject
tru critique and Change through cdecthc. setf-determintion, then there
wotrld %em to be nothing undemocratic about insisting that this process
be followed. As judge Learned Hmd wrote long ago: "Words . . . which.
hawe no pwpmt but to counsel the violation of law cannot by any latitude
ol interpretation be a part ot that public ophicm which is the fjnal source
of government in a democratic state.'q7As a theoretical matter, then, Tor-
bidding express advocacy of breach of the democratic process would not
seem inconsistent with the democratic self-governance value of free
speech. Shilarly, as long as individuals arc free to advocate any political
or social change through lawful process, it would seem that prohibiting
express advocacy of labv violation would not impair the search for trut-h.
in the marketpliace of ideas.
Supp~sing express actvocacy of law violatio~~ is also arpahly consis-
tent with the noninstrumental values of free speech deriving from the
poshnlate that g o v e m e n t must treat individuais as equai, ratiomi, and
autonomous agents.2N So long as one may advocate and work to achieve
the repeal of any law, it is far Iron? obviclws that this equality precept
yields a right to try to persuade others to break the law as it stmds. ^There
it; a stroqer a r g w m t that forbidding such speech denies the ratioml ca-
pacities of listeners to decide for themselves whether to violarc? the law
But if such speech is likely to lead some people to commit crixnes, it m y
be that g o v e m e ~iqudified
~t in suppressing this speech eve11 if it does
not amaunt to incitement likely to cause an irnmkent dmger of law via-
lation, as is re9uirc.d under current doctrine. In other words, perhapsstlp-
pressim of expres~advocacyof criminal activiv on a harmfd-tendency
rationale is consistent with the theoretical underpi,nnings of free speech.
As we have seen, however, the substmtial protection now afforded ad-
vocacy of law violation is a pmcfwct not so much of theory but of experi-
ence. Tfie most impmtmt lesson learned from, a half century of Crying to
formulate doctrine that would adequately protect both free speech values
and lcgtimate govemmntal interests is fhat tlrawing the line betkvcen le-
gitimate and iltegil-imate public discourse where theory sugested re-
sulted in the puIlishment of legitimate social criticism. Arguably, how-
ever, Lhe Cowrt may have overreacted to this history Thus it couid be ar-
gued that these pragmtie concerns could be addressed by means that
better strike the balance between protecting dissidmt speech and pre-
venting lawless activity than does c u r ~ ndoctrine..
t For instance, robust
public debate might, as Hmd suggested, be sufficiently safeguarded so
long as only clear and unequivocal calls to violate the law were punish-
able, with ambiguous statements and imuendo retair"ti11g p r o t e c t h .
Furthermore, it could be argtred that sbce only advocacy of illegal racist
conduct would be excepted from the general proyhylactic r d e afforded
adwocacy of iflegal activity; any cost to h e speech would he mhimal.
Again, however?the folloLving vestio1"t al-ises: M a t pk"tciptcd basis is
there for h i t k g to racist speech the rarcionale concemjng advocacy of ill+
gal. conduct? Et is not at all certain that advocacy of mcial lawlessness is
demonstrably more harmful than advocating draft resistar~cein time of
war or advocating the blowing up of government bujldings as rclvmge for
ent misconduct. To be .?principled, the rationale may well
have to include all express advocacy of criminal actitrity Although adop-
tion of this rationale may result in some dhinut-ion of the robustness of
public discourse, it will, at the same time allow the suppression of what is
arguably the most pernicious type of hate speech. Such a ratio~~ale, how-
ever, would not per& the supp"c?s"i"" of all racist speech, inclucfing the
use of highly inflammatory epithets or symbols used in pubic discourse,
Ba~u"tir"tg
this expl-cssioz~illvotves quite a d i f f e ~ nline
t of reaso1"th"tg.

Breach c$Civility Norms

It has been argued that even if the expression of racjst ideas must gener-
ally be considered,part of the debate on public issraes, there is no reason to
protect tt7e use of vlligar racial epithets or horrific racist syrnbols such as
burnirrg crosses and swastikas, even when not directed at any particular
individual. Those who wish to express racist ideas, the argument contin-
ues, can exprc?sslrheir views without use of such idammatory words and
symbols.
As discussed in Chapter 2, under cument doctrjne speakers involved in
puhlic discourse have a First Amendment right to exprc?ss not or"tly any
idea they wmt but to choose the words or symbols far expresshg these
ideas, even if these words or symbols breach widely accepted civility
norms. Like the prokction of acfvocacy of iawless co~~duct, the prot"cti"n
afforded offensive words and symbols as part of public discourso may be
primarily the product of pragmatic, prophylactic consideration rather
than somc. deep theo~ticalconcern. If this is true, fie11 the d e suspend-
ing the enforcement: of civility norms might be modified to permit the
 punishment of the use of :highl.y insulting racist language or symbols
wiehout compromkil7g core free speech values. Ax~dbecause the modifi-
cation would be limited to use of racist epithets m d symbols, any nega-
tive practkal consequences would be limited.
Again, Etowevc.r; the problem is finding a princi* for stripping or~ly
offensive racial epithets and symbols of constitutional protection.
Although a strong argument can be mrnade that use of racial epithets in
fnce-to_firct! c o ~ ~ f r o ~ ~ t aist idemmstrably
ms in a class by itself so far as its
tendency to provoke violence and inflict emotional injury is concerned, it
is not at all certain that use of racist language and symtrtols as part of pub-
lic discourse breaches civility n o m s more severely than does use of other
haammatory 1anguati;e. Is a sign held up by a protestor in a t o m square
that reads "Down wit-h Niggersf2eally morc offensive than one that says
" h c k Blacksu"?nd by what criteria are we to conclude, other than
trhrough our own politic& pr&rr;.nces, that ihe Klm's burning a cross at a
politicaf r a y if; m r e offemive than protesters' burning an American flag
at an antiwar mlly? What these examples show is that it is often difficult
tru separate the offense caused by the way an idea is e x p r e s ~ dfrom the
offense caused by the idea itself.
A more principled and workable approach would he to modify free
speech d m t k e to allow for a gel-~eralimposition of civiliy norms on public
discourse. Conser~rativejustices have urged precisely this approach for
decades Dissenting in Colten v, 17aIvorazi(l.,which protected the right of an
ar~tiwarprokstor to w a r a jacket bearFr"tg the siogan "Fuck the Draft,'" m d
in Texas 71, Infinmu, which u*eld the rigM to burn the American flag as a
f o m of political protest, these justices argued that ideas c m adequately be
expressed without resort to vuigar words or hammatory symbols."
cr>n the one hmd, wnodieing free speech doctrille to allow the haming
of vulgar words and inflammatory symhols within public discourse, in-
ciuding racist slurs and symbols, although prir~cipled,wouid involve sig-
nificant costs. Civility norlns are pttrely creatwes of social convention
and will vary from culture to culture, In a plumlktic society such as ours,
it is not clear that there is sufficient C Q ~ T S ~ I T Sabout
U~ such norms to make
their enforcement practical. More likely, only the dominant ct~lture's
norms will he enforced. And as Mill long ago recopized and U.S. case
law docummts, u~~civil lil~~guifgeused to express ideas challengi~~g the
status quo will likely be seen as much more egregious than the same
coarse exyression used to refute these dissidents.' l 1
8x1the other hmd, this near total suspension of civility norlns in,public
discourse may have come at its own cost. Conservati,ves have long ar-
w e d that the protection of hjghly offerske speech has had a negative ef-
fect on the tone of sociev*:Mnre recently, peoyle across the poijtical spec-
trum have suggested that brutal attacks on government and on the
character of public officials that have becme commonplace on talk radio
cox~tributeclto violence such as the Oklahoma City bornbing. Bnd even if
the consequences of the breakdown. of civility norms have not been that
sevel.e, it has been argued that the lack of civiliv norms detracts from ra-
tional public cldate. Parkicufilrly if reviewing courts are watchhll Of selec-
tive prosecution, it is arguable that society in general, and ptrblic dis-
course in particular, wwould he better off if: free speech doctrine were
modified to allow the suppression of flat;rant breacfnes of widely shared
civility norms. Protestors could still cri"rciae American involcrement in
wars, radirals could still decry the unfairness of capitalistic institutions,
and racists could still contend that certain groups me geneticdly inferior.
They would, however, hitwe to make these arei;umex~tswithout using vul-
gar kvords or inflammatory symbols.
Those who support the suppression of inflammatory racjst words ancl
symbols seldom urge that dwirine he modified to perrrtit ~ n e r a enforce-
l
ment of civility norms, m d the radical critics among them never do so.
Aside from fearing selective prosecution of minorities and those express-
ing radicai ideas, radicat critics do not support modiiying doctrhe to al-
low a general imposition of civiliv norms because they want antiwar
protestors to be able to burn American flags or wear jackets that say
"Fuuck the Draft."
Modifying doctrhe to permit the barnkg of advocacy of lawless con-
duct as well as the breach of civility n o m s would be a principled bask
for suppressing a sigl7ificant amount of hate speech from p " b k discourse
without gutthg the protection that current dactrhe provides pubfic dis-
course, Even in connbhat-ion, however, these rationales do not cover all
racist speech. Still protected would be advocacy calling for the. implemm-
tation of racist policies through legal means, hclluding advocacy of such
appaZZing measures as stripping certain groups of basic civil rights or
legaily expellhg them from the. country Is Eherr m y theory under which
this expression, too, could be considered no legitimate part of the debate
on miattcrs of public concern?

Speech Advocating A,zt idemocratic Policies

We have already considered the theory that speech contrary to basic con-
stitut.ionall norms should be less pmtected than other public discourse. I.
pointed out that reserving rigorous protection for speech that conforms
wieh cox~temporaryunderstanding of constitutioxlai n o m s will likely im-
pair the ability of the democr&ic process to effectuate chmge, particu-
larly progrctssive reform. This cmctusion was based m Ihe premise, more
empirical tha3.1 theomticaj, that for there to be progess, all noms, includ-
ing constitutional norms, must be contestable in the public debate-
 But is it really true that all n o r m must be contestable for this progress
to occur? We have already considered the argument that the contempo-
rary mderstandi,ng ol race and e n d e r ewalj,ty shout$ be exempt from
the rough-and-krmble of public discourse because such understanding is
"one of the cexrter b e a m of the legal order;'" a positio~rI rejected as both
unprhcipled and contrary to basic free speech values. There is, however,
a more defensible vasiation on this theme, If, as suggested in Chapter 2,
the stmrrg proteclrion aff-orded public discourse is seen as promoting cer-
tain basic values, why should this protectisn extend to advocacy of politi-
cal change fundamentally inconsistent with these values? In particular,
why shoufd a free speech p"i""ipie in service of democracy protect ex-
pression that aclvocates antidemocratic measms? Of course, not all racist
speech advocates policies deeply inconsistent with democracy But the
worst of it surely does-tracb callkg for the reinstitution of slavery or the
deportatio~rof certain groups or herdirrg them into co~rcrenh.ationcamps.
If democracy is to mean something more than mere majoritarianism,
there must be some respect for the rights of minorities, be they political,
ethnic, or religious. Politiral t-heorists may differ on just hl,w much pro-
tection of minority iights is i2717erent in the concept of democracy, but
most would agree with Abrilham tincoh that a society that permits slav-
ery is to that extent ""no democracyff7'Thus the supprcrssion of speech ad-
vocating that minorities be stripped ol their basic human rights would
seem to advmce, not compromise, democracy.
There are, of course, a number of objections that can be raised against
this argument. The most basic is that a policy that prevents the illbandon-
ment of demcracy by democratic means is itself inconsistent with
democracy If after full discussion the people in their collective wisdom
choose to abmdon democracy, it may be that basic democratic prhciples
must allow this choice, If this criticism is valid., then it follows that a pol-
icy that not o~rlyp~leventedthis substmtive outcorne but also forbad its
advocacy would also be inconsistent with democracy As Justice Molmes
long ago observed: "If in the long run the beliefs expressed in proletarian
dirtatorsbip are destined to be accepted by the dominant forces of the
commmity, the only meaning of free speech is that they should be given
their chmce and have their
It is not, h o w e ~ ~atr , all clear that forbidding the abandonment of
democracy is itself inconsistent with democracy To explore this question,
let us imagine a countq that has historically had an authohtafian form of
governme~~t, a communist stak, say or a tt-reocracy &ring .the past few
decades, this country has fhally succeeded in establishing a democracy
with a constitution that provides for near universal suffrage, governance
by a populirrly elected legislature arrd executive, and proltlction of basic
civil rights, inchding free speech, religion, and equd treatment on the ba-
sis of race, ethnicity and gender. Ttecmtly, bowevel~,many have been call.-
ing for returrl to "the old ways.'" Indeed, a recexrt poll shows that if elec-
tions are held as scheduled, the antidemocratic forces will be elected in
such numbers that they will be able to amend the constitution so as to re-
instate dictatorial rule by Ifre communist party or imams, as the. case may
be- Would cmcelhg the election so as to save democracy be consistent or
inconsistent with democracy?
'The answer d e p e ~ ~ on
d s one%theory of democracy. If one is co
to a liberal democracy in h i c k governntenl. must ~ s p e cbasic
t illdividual
I-ights, then it may well be consistent for a democracy to insist that it m-
main so, even if a large mitjority of tl-re people have decided otherwise. In
this view, majority rule is not an end in itself but a means of achic;ving the
deeper purposes of democracy, such as ensurhg that government respect
basic human rights m d treat everyone with equal concern and mspect.
Ordinarily, the basic commitmer~tto equality r e y u i ~ sLhat governance
decisions be made by the majority lest one person's preferences be privi-
leged over another 3.But there arc occasions in which this commitment to
equaiity revires that mifiority rule be suspended, such as when a major-
ity attempts to deprive minority groups of basic civil rights or when a
party that has gained majority support seeks to lock itself in by restrictin.g
free speech or otbrr basic political rights. In such hstar~cesany violation
of equality resultbg from the suspension of majority rule is superficial in
comparison to the profound blow to cqualjv that will occur if the m@or-
ity is allowed to have its way. It is for this reason &at many of the funda-
mental rights ensured by the constitutions of most liberal. democracies,
though antjm.a;iuritarian,are not considered mtidemocratic. But if such
specific antimajoritarian provisions are co~~sistc?intwith democracy, then it
is also consistent with democracy to deny the majority (or even a super-
majority) the power to obliterate dmocracy in its entirev' including the
majority rute &at ordharily promotes &mo~racy~~'
:If it is consistent with democracy to prevent the majority from aban-
doning that entevrise, then it m y be consistent for a free sgeech prinri-
ple in service of democracy to ruie out of bounds advocacy of any mea-
sure deeply inconsistent with democracy, regardless of the legality of the
means proposed for bringing it about, Specifically it may he that certain
racist po:iicies arc? so anathema to the deepest values of democracy that
their advocacy c m be excluded from the realm of highly protected public
discourse. If democratic se%f-governancewere, as some have argued, the
onty reason for protecting speech, this dgGtt he a persuasive arpmernt, at
least on the theore"lca1 level. But as we have seen, mother importmt pur-
pose of free speech is truth discovery in the markeplace of ideas, Under
this rationak, a reason for prokcting speech hinco~~sistent with democracy
is that there may be better forms of government than democracy, and thus
taking advocacy of such systems off the table diminishes the possibility of
discovering better forms of goven~ment. even if it were to be as-
sumed that democracy is universally and for all time the best possible
form of government, allowing democracy to be oyenly challermged by ad-
vocacy of other types of political ordering might, as Mill suggests, reveal
partial truths, such as defects in the p ~ s e nforms
t of democracy3 fn ad&-
tim, such rigorous challenges might lead to richer understanding of and
a more s e c m allegia~ceto democracy With respect tru hate speech in par-
ticular, it might be argued that racist challenges to the orthodox, liberal
notions of equality might trigger rebuttals that will keep our commitlnent
tru racial eyualiw from becomint; dead dogma.
But althoul;h it may be true that as a ge~~eral m t t e r we gain a better
understanding of issues m d a m m secure;. grasp on the truth if afl c m -
peting ideas are heard, it is not at all certain that much would be lost if ex-
press ad.e)rrmcyof policies ar~titheticalto tlte core of demmmcy we= ex-
cluded fronn the milrketglace of ideas. As long as m y idea, includjng
cument understandings of racial and gender equality, could still be vigor-
ously critiqued, it may wefl be that most of the tmth-fhding function of
speech coulct be sectrred withoul allowing direct advocacy of grossly m-
dmocratic political chmge. With regard to hate speech in particular, 1se-
riously doukt that tbe idea of racid equality will become stultified if peo-
ple are not allowed to advocate amending the Constitution to reinstitute
slavery or permittkg the expulsim of certak ethnic or ~ l i g i o u sgroups.
And even if forbiddin$ such exp~ssionresulted in some stultification, it
may be that this cost is more than offset by th.e harms avoided by sup-
pmsslng this speech.'"
In addition, &ere are noninstrumental reasons for not suppressing ad-
vocacy of antidemocratic political changes. As discussed in Chapter 2, a
p r h a r y value underlyhg free speech is assuring that government treat
people as rational agents capable of choosing betwe11 good and evil
counsel- Even though government consistent with this value may step in
at the last moment to keep the majority from irreversibly choosing a
regime that would disrespect not only e p l i t y hut individuals' ratioml-
ity as well, it would arguably violate respect for individual rational ca-
pacity to stop discussion until society has actually reached the edge of trhe
abyss. Thus even if a democracy consistent with its own ideals c m put
certain poitical ~ s z l l t soff limits, I am not sure that advocacy of these re-
sults can simitarly be excluded cmsistent with the values underlying free
speech in a liberal democracy
Aside from, these variorns theoretical objections, there would lirkely be
serious practical prdblems in dedaring antidemocratic speech no part of
legitimate pu:$lic cJiscourse. It would be very difficult to distinguish be-
tween critiques of current democratic institutiolns that might lead to a
more just, although radically different democracy and ideas that are
trruty ar.~Citheticatto that form of governme~~t. Once a g h E fear &at it
would be progressive ideas, or those expressed by marginalized groups,
that would. he most easify condemcd as contrary to deunocra~y~'~ Clne of
the justifications ofkrc3d for suppressing communist speech during the
blcCarthy era was that speech that advocated the end of demwralic h-
stitutions had no place in democratis discourst?." ltladical critics are weli
aware that suCh a ralionafe codd easily apply to certain types of leftist
speech, including, ironicajly, calls to radically modify free speech doc-
trine. It is not surprising, therefore, that they have not embraced a
democracy-based rationale for suppressing hate speech.
fvIy purpose here is not to resolve the m&ts of allowir"tgthe proltibi-
tion of expression because it adkrocates political change antithetical to
democracy. Rather, E want to suggest that this is a princiyled rationale
that is arguahly consistent with at Least some of the basic values underly-
ing the rigorous protection afforded robust public discourse. Together
with the advocacy-of-crhinal-conduct and breach-of-civility-noms ra-
tionale~,this trheory might well support a fairly broad ban on hate
speech. And t~nIikesome other ratiollales hvored by radical csitics, prin-
cipled and sensible application of these theories arguably would not gut
the protection provided core potitical speech. Still, their adoption ~ U t d
we&n the strong constitutional protection c u r ~ n t l yafforded ptthljc
discourse,

It would seem that finding a prinripled rationale for suppressing pornug-

raphy without feopardizjng public discourse would not be su fomidable
a task as finding such a rationale for bm~"tir"tghate speech..If hate speech
c m be suppressed because it is not legitimate pttblic discourse, then
pornography could, it would seem, be suppressed because it is not public.
discourse at all. It has been wgued that pornography is essentialiy a
means of sexual arousal, not social or political commentary If one accepts
e the most-rigorous protection s h d d , be reserved for pub-
the p ~ m i s that
lic discourse, the11 there would seem to be a p"in"iple for suppressinl:
pornography that kvoulct not jeopardize democratic self-golrernance or
ivnpair the proper furrctioning of the marketplace of ideas.
The argme~"tt that pornography may be 5uppressc.d because it is far
afield from the speech by which. we govern oursel\res and makes no con-
tfibutiorm to the marketpbce of ideas is a view held not just by radical crit-
ics such as MacKhr~onbut by some mainstream thinkers as weif.
Szznsteia, for hstmre, argues that "[mjany forms of pornography are not
m appeal to the exchmge of ideas, political or otherwise; they oyerate as
masturbatory aids ar~d[thus] cJo not qualify for top-tier First
protection." "cause pornography "'does not appeal to deliberative capac-
ities about public matkrs, or about mattas at all,'"ths mateI-ial should, in
Sunsteil7's view, be considered ""iw-value'" speech. As such, ponlogra-
phy, like "misleading commercial speech, libel of private persons, con-
spiracies, unlicensed medical or legal advice, bribes, perjury [and]
trhreats,'"hould be suppressible 011 a lesser showing of h a m &an is re-
quired to ban high-value speech?To Sunstein, the scientific evidence of
the harm caused by violent pornogrvhy descfibed in Chapter 7, though
not definitive enough to justify restricting high-value specrcrfi, is sufficier~t
tru ban low-value speech..Shce these studies suggest that the codination
of sexually explicit material and violent images leads to violence and
other discriminatov harms to women, this is sufficient grounds for ban-
ning violent pornography.;'"
Sunstein is to be credikd for attempthg to find a principled rationale
for barnkg certain forms of sexually explidt speech. Indeed, he is virtu-
ally alone among those who favor broader bans on porr~ographythan is
per~xittedmder current dockhe in considerkg the impact that this prk-
ciple wodd have on protection of other types of speech. sun stein"^ argu-
ment for the suppressior~of pon~ographyis part of a hrger critique of
current doctrine, which he l4i~fwsas already incorporating a two-tiered
approach to speech, but in a selective and unprincipled form, Noting that
existing doctrhe recogl7izes severid categories of low-wdue speech (e.g.,
comxncrcial speech and private libel not on matters of publjc concern),
Sunstcjn cornplaills that "the Court has yet to offer anything like a clear
principle to uniiFy tlhe catrgories of speech that it treats as "low value""
and that its c u r m t practiee of "selective exclusions" f r w '*firsttier" pro-
tection carnot "be justified as a matter of prin~iple,"~' Sunstein h~siststhat
his approach-denomh~athg all speech that does not "appeal to defibera-
tive capacities on ptrblic matters'bas low-value os "second-tier" speech-
is morr prinripled. This approach, however, would =legate to second-
class status m enormous amount of speech, including much art and
literature, Smstein contends, holvever, that "there is little reason to fear a
large increase in official censorship" if his approach we= adopted." h m
not so sanguine.
Sunstein achowledges that the prhciple that high-valare speech is only
that expres"in that "aypeals to deliberative capacities about public mat-
ters'" fairly calls into westion whether art and literatnrre slzould be cbssi-
fied as "'fnighr%r "'low" e ~ r e s s i o nBut
. ~ ~he argues that under his approarh
much art and literature would contbnue to be afforded top-tier constitu-
tional pr~tectior~. 111 Sunstein's view high-level spec" inclucles not just
"'political tracts," h t all works of art: m d literature "that have characteris-
tics of social commenta"y." H e thus finds that James Jclyce" UUl;ysses m d
Cbarks Dickens's B l e ~ k%use "'political for First AmendmeM purposesf"
because Bleak Nllusr contains "a great deal of colnment on the fate of poor
people under conditions of industrial profit-seekhg"' and Ulysses "ddeals
with Lhe role of reli@o~~ in socie@." Shilarly according to Sunstein, the hcr
moerotic art of Robert: Mapplethorpe should be considered high-value
speech entitled to rigorous First Amendment proteckion because it ''at-
tempts to draw into w s t i o n cunent sexual n o m s and p r ~ t j c e t i . ~ ' ~ ~
As the MappXethorpe example shows, a major problem with Sunsteh's
approach is that it reytlires ad hm, subjective judgments about wkther a
gi"en piece of art or litera* has sufficient "'appeal to trhe deiiberative
capacities about p"blic matterti" to qualify for rigorous First
protection. To Sunsteh, a photograph of a man with a bullwhip hserkd
in his anus or a yicbre of a man with a finger inserted in the head of his
penis is an attempt ""t draw into question c u r r a t sexud n o m s a r ~ dprac-
tices.'Wthers, I would kvager, view these photographs not as political
commentary "out as "masturbatory material" for sadomsocbistic homo-
sexuals. By what standards are we to determine Lvhether these pho-
tographs are sufficiently political to deseme ""top-tier" First Amendment
protection? Where such subjectivity abounds, the determination is likely
tru be made not on some detached vicw about "appeal to the detiberative
capacities" but on some judge's s4ew of rough homosexual practices or,
worse yet, on the moraiiity of homosexuality.
Moreover, if Mapptetho~e'ssexuafiy explicit photographs are entitled
to full First Amendment protection becatrse they question ""crrent sexual
norms and practices," why is the same not true of pornography in gen-
eral? Certah1y PLlyEloy chalfenged norms whm it first came t_m Lhe market
in, the 1950s, and some say hard-core pornography does so today. It could
be argtled that Htlstler m d other magazines that routinek show women
as objects for sexual co~~quest and suborcfintiox~atkmpt to vestion the
current view of sexual eq~~ality;
My point is not that pornography makes m c h of arm "appeal to the de-
liberative capacities about public matters." Rather, I am concerned that
this constrzlct is far too ahstract and slippev to be m t r u s t d wjth the im-
portmt task of detemining whlther a work of art or literahre sbould be
relegated to seco~~d-class status. h addition to inviting jladicial bias, the
uncertainty of the "appeal to the deliberative capacities" "standard will
mean that except in the case of expressly palitical art or literature, neither
the creator of the work nor law enforcement officids will know whether
the art in question is entitled to full First Amendment protect-ion or is
pmit;h&le on s m e lesser standard.
'The top-tier prokctiox~that currex~tdoctrine extex~dsto all art and titer-
ature stems from the realization that there is no practical kvay to separate
art and literahre that "appeals to the deliberative capacities" from mater-
ial that does not make such an appeal without jeopardizing t-he ability of
art and literature to contribute to the deliberative process-Smstein is well.
aware of these risks, =cognizing the dangers of"[dld hoc detexminations
of free speech vaiue," throu@ which the "'prejudices and myopia of par-
ticular judges, even judges operating in good faith, wodd produce mac-
ceptahle dangers."""'He thus understands that cument doctrhe "protect[s]
materials that wouid m t , in the hest world of perfect judges a ~ costless
d
admhistration, receive protection-simply because without such protec-
tion people in a position of authority will, in our world, draw and imple-
ment lines ii7 a way that is too threatening to the system of free expres-
sion.'"'3unstein nonetheless rejects the kvisdom of extending rigorous
constitutional protection to all, art and literatznre, arguing that str& blan-
kcrt overprotection is umecmsary. In his view the First Amendment pro-
tecticm applicable to lower-value speech is sufficient to prevcnt gwern-
mental abuse He emphasizes that gcrverlnmclnt is forhidden from
regulathg even :Low-level speech for illegitiunate reasons and thus must
justify the regulatio~~with "reference to gex~uinehams."46
:I do not share Sunstein" confidence that the minimal protection af-
forded the huge category of secormd-ti.cr speech he would create would
adequately prevent goverx~mex~t from illegitimaticly controlling debate 0x1
matters of public concern. This is especially true with the protection of art
and literature relegated to the secmd tier because of its irrelevance to
public discourse. Sunstein too facilely assimilates "nmde1i:heratiwe" art
and literature in. general, and pornography in particular, with "mislead-
ing commercial speech, libel of private persons, conspiracies, unljcensed
medical or kgal advice, bribes, perjury [and] threats,'" speech Lhat, as
Sunsteb notes, is treated as low-value spec" under current doctrine.47
ent bans trhe other forms of expression on Stnr~stein"~ fist,
there is usually no reason to he concerned that it is targeting this speech
for some illegitimate reixs~n."~In contrast, when government seeks to sup-
pmss art and literatznre4ven the '31onddihesative" variety-it is much
more likely that it is doint; so for s m e reasor.1 that the First Amendrnent
forbids- Totalitarian regimes routinely ban even "'nondeliberativc3""art for
reasons that Sunstein would find impermissiblea4"
Suppose that the U.S. government in the 1950s had tried to ban rock h'
roll from the airwaves on the grounds that it was a particularlly ugly and
unpleasant form of music. Under Sunstews approach, the ban would
have been upheld because aesthetics, ihough not an espe"a1ly com-
pelling justification, is not an impermissible rationale.-""Under current
doctrine, in contrast, such a restriction would be patently invalid.
Precisely because all art a d literature is considered high-level speech,
such a justification would not be nearly compelling enough to pass the
"sstict scrutiny" that such a ban wouln elicit. This scmtiny is a product of
trhe suspicion that although msibetics is the stated ratior~ale,trhe real rea-
son for the ban is probably somethhg more nefari~us.~"
A similar point c m be made about pornography bans. The= is reason
to beiieve that the motivati011 for such bans is "'disagreentent with trhe
ideas that have been expressed"' or "ensur[ingj that people are not of-
fended by the ideas" 'found in sexudy explicit material, rationales that
Sunsteh lists as illegitimate.'Ton~ographyhas been con&
veyistg the idea that emgagkg in sex for recxeation ratler tham as part of a
committed relationship is proper "ohavior, for teacbing that t k r e arc no
negative consequences to such activity and for leadir~gmen to view
womm as sex objects or even as secretly wishing to be raped." In con-
trast, bans on false advert-ising,trnlicensed medical or legal advice, bribes,
perjury, or threats do not raise the specter that the prohibition is moti-
vated by disapemer~twith some worldview lrhe expressior~is assumed
to convey.
In addition, the undoubted, connection between unlicensed profes-
simal advice, bribes, pe jury, and threats and harms that gowemmcnt
may legitimately address dispels suspicion that gover~~ment has sup-
pressed this speech because it opposes or is offeded by the xnessage this
speech deiivers. Sunskin suggests fhat there is a sirnilar co~~nection be-
tween pornography and violence against bvomen, ci"cing the scientific
skrdies discussed in Chapter 7. The comparison is inapt. Although not all
misieaclir~gadvertising results in fraud m r all udlcensed medicd or legal
advice hbodily *jury or loss of legal rights, there c m be no doubt that as
a class this expression would cause significant harm if left un~gulated.
The clarity a ~ certainty
d of the harm caused by bribes, perjury or threats
is even m o manifest.
~ In contrast, as detailed in the Appendk, the link
between violat pornography and vi"le42ce against women is both murky
and cor~tested.
Fhally; the suspicion that the true motivation for barnkg pornography
is disagreement with its worldview is mapified by the exylanation that
pomgraphy causes violence by altering men's attitudes toward w m n .
The various rationales for suppressing misleading advertising, trnli-
censed professional advice, bribes, perjury, or threats, in mntrast, posits
no such char7ge in attitudes about how people see the workl.'"
I have spent considerable time critiquizzg Sunstc.in3 view because it is a
sustained. and thoughdul effort to find a principled rationale for suy-
pressing pomograyhy. RuL precisely because it is principled, his approach
would strip a vast arnomt of art m d literatznre of the st-rongconstitut.ianal
protection it now enjoys. What Sunstein's argument most clearly dernorz-
straks, then, is that it may not be possibie to iind a prhcipled basis for
banning pornography that would not also ivnperil core free speech val-
ues.
At first it may seem odd that X am more smguine about fjwrcthg a prin-
ciple supporting a broad hate speech ban that wouLd not jeopardize core
free speech values than I m &out findhg such a prhciple for the sup-
pression of pornography Hate speech, after all, is much morcj connected
to the debattz about public afhirs than is pomogmphy Rut although free
speech doctrine does not permit even the most offclnsive racist propa-
gmda to be bamed, it already allows hard-core pornography to be sup-
pressed. There thus m y he no more room for broader pornography bans
consistent with adequate protectim for public discourse and serious
artistic effort. As a theoretical matter, it c m certainly he argued that cur-
rent doctrine affords too much protection to sexually graphic material,
just as it overprotects libel and advocacy of lawless conduct. But as we
hawe wen throughout this hook, free speech doctrine is m m a pmduct of
experience than theory. And in, the pragmatic judgment of nearly every
S u p ~ m Court
e justjce who has wreslled. with the pr&lem of pomogra-
phy regulation since lfie 1970s, at least this degree of protection is neces-
sarySS Thus with ~ s p e ctot the ~lationshipbetween public discourse and
pornography free speech doctrine has already separated the wheat from
the chaff.
This page intentionally left blank
The primary purpose of the survey of the costs a d be~~efitsof broad hate
speech and pornography bans has hem to give rtraders sufficient infor-
mation to draw their own conclusions &out the wisdom of such regula-
tions, including whether doctrine should be modified to permit such
speech suppression. Although I have strivedi to be fair and objectfwe, I of
course have my olvn views on the various arguments for m d agahst ban-
ning hate speech and pornography sorne of which :Ihave expsessed along
trhe way. Here I wmt to both summarize these views a7d oEier some over-
all conclusions-

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.

Government c m demonstrate to mkorities and bvomen that it does not

share the hateful or demeaning views expressed in racist propaganda or
pornography by condemning these views in its own speech. Similarly,
counterspeech by private individuals c m show that most people do not
share these views and thus c m go a long way to relieving the insult in-
flicted by racist or pornographic speech. 'The existence of alternative
~mecfiesalso ur~dcrxutsseverai other rationalcii for suppressjng hate
speech aad pornogmphy For instance, if, as Fiss claim, public discourse
has been robbed. of certaitl perspectives because of the silencing effect
of hate speech and pormgraphy, gowe ent c m ~ m e d yihis h a m by
using i t s own voice to provjde missing perspectives. Sirnilarv, if
MacKimon is correct that pornography dbscures the fact that coerckg
women into unwanted sex acts is sex abuse, gowmment couid make this
har~xvishle, either by subsidizing those who will expose this abuse or
through its o m campaign.
Fiss appare~~tlysees no difference bet\Yeen t-he state" '"allocatil7g public
=sources-[meta)?horicaIf.y] handl;ing] out megaphones-to those whose
voices would not otherwise be heard'hnd "silencing the voices of s o m
in order to hear the voices of others."Tace Fiss, the distkction is crucial.
For one, government suppression kvol\res dmgers that subsidization or
the govement" own speech does not, such as misapplication, selective
enfoxement, ar~dchit:iil.lg speech that is neither racist nor pornographic.
Mare importmt, subsidization m d government comterspeech is a more
precise response to inadequate represmhtion of certain viewpoi"ts than
it; the clumsy ar~dindirect solution of spec" repressiol~.h additio~~, m-
like subsidization or counterspeech, suppression threatens to elhinate
cmplekly a particular point of view from the public debate. Speech sup-
pression &us cannot possihty be justiiied as pmmoting the proper func-
tioning of the marketplace of ideas. Finatiy, sugpression infritlges upon
the basic moral right of each individual to try to persuade others to see
trhe world in a certairl way. In conh-ast, governmer~tsupplementation and
counterspeech do not implicate this core value.
 Especially because there is no cozrrlusive evidence that hate speech and
pomogaphy are a significant cause of violence or discrimination, it is
crucial that alternatives to speech suppression be considered as remedies
to these harms as well. Such alternative means for addressing these
harms include increased enforcement of civil rights and domestic vio-
lence laws, educational campaigns that raise public consciousness about
the possible harms of porn~grnphy,~ and vvciftrous official conde
of racism in all its mar~ifestations.

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.

Jn 29170 the President" Commission un Pornography reviewed the pertinent stud-

ies ctn the effects of pcjmography, including research it had funded, and con-
cluded:
 Research to date . . . provides no subshntiat basis for the belief that erotic materials
constitute a prirnaq or sipificant cause of the development of character cleficits or
tilat tl~eyoperate as a significant determi-t.tativebctol: in cnrtsi~~g crime and deiiix-
quency. . . .On the basis of the nvdiiahle data . . . it is not possible tc? conclude that
erotic materidl is a significant cause of sex crime.".
At the time the president" ccornrnissitln reported, however, scientific inquiry
intc3 the effects of pornography was at an early stage. Many of the experiments
were rudimentary and did not expf ore mclre sopKsticated hypotheses that might
have mcovered harm caused by exposure to pomclgraphy-One erious shortcc3m-
ing was that the experimenters and the commission did not difkrentiate the types
ctf sexually explicit material, such as material with and without a violent theme,
The cautious phrasing rtf the 1970 commission%conclusion was thus appropriate
given the research then available. In the years that followed, researchers con-
ducted experiments that did distinguish among types of sexually explicit mater-
ial. In light rtf the apparent increas in victfent sexual material since the 3970 com-
mission report, many studies focused on it-re harm caused by this material.

In 3985, at the request of President Ronald Reagan, Attorney General William

French S d t h appointed another commission to study it-re effects of pornography
ctn American sotieq. ((Despitebeing appointed by Smith, the commission became
knctwn in the popular press as the Meese Commission, after Attorney General
Edwin Meese, who was in office when the cctmmission reported.) Unlike the pres-
ident's commission, the attorney general's commission distinguished among var-
ious types of pornography in assessing harm, dividing sexually explicit material
into three categories: (1)sexually violent material, (2) nctnviolenf but degrading
material, and (3) material that is neither violent nctr degrading.
The commission defined ""sexually violent material" as that "katuring actual or
unmistakably simulated or unll-ristakably threatened victlence presented in a sexu-
ally explicit fasKon with a ppredorninliznt fc~cusctn the sexually explicit violence."""
This category included material with ""sdcj-masochistic themes, with the standard
accouterments of the genre, including whips, chins, [and] devices of torture'" it
also included material depicting "a man making some sort of sexual advance to a
woman, being rebuffed, and then raping the woman or in some other way fc2rcing
himself on the woman." Atso subsumed in this category is more "mainstream"
material, such as ""slasher" films, that portrays sexual activity or sexually suggee
tive nudity ajupled with extreme violence, such as disfigurement or murder?
The commission found that "b]ncreasingly, the most prevalent forms of
pornography" "contain depictions of violence.' Tn reaching this conclusion, the
commission relied on a study by a Canadian commission that determined that 10
percent of the sexual acts depicted in text of mainstream sexually explicit maga-
zines (Plaj~syboy,1D4nCIz~~z~se,
FJ~fsflel;and the tile) involved "'the use of frjrce," includ-
ing "anal penetration, bondage equipment, weapons, rape and murder."The
commission also referred to a study that analyzed the content of Playboy and
Pezztltoztse cartoons and pictures from 1973 to 1977 and cctnciuded that "kpctorial
violent sexuality was found tc:, have increased significantly" over this five-year
period (although it was still a relatively small percentage of the total pictorial ma-
teriat, reaching about 5 percent in 1"37).)." According to another study the commis-
sion cited, the covers of hard-core pornographic magazines indicated that
""budage and domination'2magery had geatly increased since 1970.1"
The categcjry of nonviolent but degrading sexually explicit material is de-
scribed as ""depicting degradation, domination, subordination, or humitiation,"
Such material shctws ""people, usually women, in decidedly subordinat-e roles in
their sexual practices that would to most people be considered humiliating."" The
commission found that this category ccmstitutes ""somewhere between the pre-
dominant and overwhelming portion of what is currently standard fare hetero-
sexual pornography" and that degradation is a ""significant therner3n other sexu-
ally oriented material not explicit enough to be considered pornographic." At
anctther point in the report, the commission referred tct the category of degrading
material as "the largelly predominant proportion of commercially available
pornography,'"'"
The third category of sexually explicit material that is neither violent nor de-
grading is, according tt3 the commission, "in fact quite small in terms of currently
available material^.'"^
With respect to the sexually violent material, the commission a>ncluded that
"the available evidence strongly supports the hypothesis that substantial expo-
sure ~ Csexually
I violent materials . . . bears a causal relationship to antisocial acts
of sexual violence and, far some subgroup" possibly to unlawful acts of sexual
violence.""" h reaching this conclusion, the cclmmission relied on a number of
laboratory experiments conducted since the president" commission report in
2970 showing that ""exposureto sexually violent materials [resuXts in] an increase
in the likelihood in aggression," "specifically in "aggressive behavictr towards
W omen,'"'
Typical of the experiments on which the commission relied is the one con-
ducted by Edward Dmnerstein in l"380." :Male subjects were first angered by ei-
ther female or male a>nfederatesof the experimenter and then exposed to one of
three fi1m: a sexually expticit but nonvicolent film, a pomographic film depicting
a rape, ctr a film that was neither sexually explicit nor violent, Folkowing the expo-
sure, the subjects were put in a position in which they a>uldengage in aggressive
bchavior by (supposedly) administering electric shock as p u ~ s h m e n to t another
person far failure correctly to perform a task in what the subject thought was a
learning experiment." As summarized by the commission, this study showed that
"when the target of angered subjects was a male, there was no difference in ag-
gressive behavior (measured by the shock intensity ctn an aggression machine)
among males in the erotic and the aggressive-pornographic a>nditians.However,
when the target was a female, aggressive behavior was higher [but] only in the
aggressive-pornographic film condition,'"'
The commission acknowledged that scientific studies such as Donnersteinrs
suggested only that violent pornography caur;cd increased levels of aggression,
not that this elevated aggression led to actual acts ctf sexual victfence. Relying pri-
marily on their own "common sense," hchowever, the members of the commissitln
were willing to make the assumption that ""increased aggressirie behavictr to-
wards women is causally related, fcsr an aggregate populaticm, to increased sexual
violence,'"""The commission was thus able to conclude "'unanimously and confi-
dently'2hat violent pornography is a cause of sexual vic~lence.~~
In bridging this gap between evidence of laboratory aggression and its finding
ctf actual acts of sexual violence, the commission expressly stated that it consid-
ered certain types of evidence unreliable. For instance, the commission dis-
cc3wted testimony of sex offenders who claimed that pornography led them tc:,
commit sex crimes, noting that psychcttogical research shows ""the tendency ctf
people to externalize their own problems by l~)oKingtoo easily for sorne externat
source beyond their own ccmtro1."22Similarly; the cclmmission viewed slceptically
various types ctf "correlatirtnal" evidertce, such as reports ctf law enforcement per-
sonnel that sex offenders disprc>portionatelyhad large quantities of pornography
in their homes, and even the more scientific studies that show a correlatic3n be-
hiveen high consumption ctf pornography in certain regions of this country and a
high rate of sex crimes. The commission noted that ""[]orrelationat evidence suf-
fers from its inability tu establish a causal connection belween the correlated phe-
nomena [for] it is frequently the case that two phenomena are positively corre-
lated precisely because they are both caused by some third phenomena [sic]."
Thus the commission nctted that sorne ctther factor, fctr example, ""sme sexual or
emotional imbalance,'%rnight be responsible both for the excessive use of: pornog-
raphy and the urge to cc3mmit sex crinnes.'Wonetheless, the commissian fc3und
that althctugh such correlatictnal data cannot definitely establish causality, they
provide nonetheless "some evidence" "at a causal link might exist.z4
Sexual violence was not, however, the only harm that the commission con-
cluded violent pornctgraphy caused. Again relying on scientific research, the com-
mission reported that "[tlfie evidence is also strongly supportive of significant at-
titudinal changes on the part of those with substantial exposure to violent
pornography,""' The commission pointed to a 3980 study by Malamuth, Haber,
and Feschbach in which subjects read a sexually explicit story Prom Pe~tflzouse
magazine mcldified tt3 create a violent and nonviolent version. According tt3 the
commission, the study found that males exposed to the violent version 'per-
ceived more Eavorably a rape depiction that was presented to subjects subse-
quentty'bnd that ""dubjects were fotmd to believe that a high percentage of men
would rape if they knew they would not be punished and that many women
would enjoy being victirni~ed."~~
In a 1981 experiment by Maiamuth and Check, male and female subjects
agreed to participate in a study ostensibly fc~cusingon movie ratings. Some of the
subjects saw twc) feature-length films containing sexual vicllence, Stuept A w ~ yand
The G e t a ~ n y . Other
?~ subjects watched a nonviolent movie. Several days after
viewing this material, the subjects were given a sexual attitude survey in classes,
but the subjects were not informed that there was any ccmnection between this
survey and the films they had viewed. As summarized in the commission report:
"ResuZts showed that exposure to sexual violence increased male subjectskccep-
tance of interperstlnaf violence against women. A similar trend, though statisti-
cally nonsignificant, was found for the acceptance ctf rape myths."2*
In light of these and other studies, the commission concluded that:
 substantial exposure to violent sexuatly explicit material tencls to a greater acceptance
of the "rape myth" bn
i its broader s e n s c ~ t h awomexr
t enjoy being coerced into sexual
activity; tltat they ertjoy being physicalty hurt in a sexual context, and tltat as a result a
matr who forces I-tirnsetf on a woman sexuaily is in fact merely acceditlg to the "realff
wishes of the woman, regardless of the exterlt to which she seems to be resistirrg.
. . . We [therefc)re] have litt-tletmuble collcluding that this attitude is both pervasive
ni~dpri3ft~t1rtdfyharmft~l,and that any stiinutrls ~h~forciztg or ifrcreasir~gt l ~ eincidence
of Illis attih~deis for titat reason aloile pmperly designated as l ~ a m h l . ~ "
The a>mmissionalso Pound that scienti5c evidence is ""srongly supportive" of
the conclusion that ""sbstantial exposure" "to violent pornography causes its
viewers to perceive victims ctf rape as "more responsible for the assault, as having
suffered less injury, and as having been less degraded as a resuit of the experi-
ence" and that these viewers ""ae likely to see the rapist or other sexual ofknder
as less responsible for the act and deserving of less stringent punishment."2o
Typical ctf the studies the commission cited is a 1985 experiment by Linz invoiv-
ing male college students whc3 watched slasher Pilrns containing explicit violence
in a sexual context (e.g., Toolbox Mzirders, which depicts a naked wtrrman mastur-
bating in a bathtub, then being stalked and killed by a masked man wielding a
power tool). After viewing one film per day for five days, suhljects were asked to
participate in what they were told was a different study (""a pretest of a law xhot3l
documentary'\of a rape trial) and then completed a questionnaire about the vic-
tim, According to the commission, the study fc~undthat "kjhose massirieiy ex-
posed to sexuaf violence judged the victim of the assault to be significantly less in-
jured and evaluated her as less worthy than did the control group.'"'
In reporting its findings as to the harm of violent pornography, the commission
emphasized ""flwo vitally important features of the evidence." First, perpetuation
of the rape myth and other harms "are more pronomced when the sexually vio-
lent materials depict women as experiencing arousal, ctrgasm, ctr other form of en-
joyment as the uttimate result of the sexual assault.""" The second point that the
ccrrmmission emphasized was that the h a r m it identified apparently "do orzoi vary
wifh the extegZ ofscxrral explicitness so long as the violence is prese~ledin Izn ~ l n d e g i ~ b l y
sexual context."" Indeed, the commission acknowledged that it is "unclear
whether sexually violent material makes a substantially greater causal contribu-
tion to sexual violence itself than does material containing violence alone," But
what was fairly certain to the commission was that ""increasing the amount of vict-
lence after the threshold of connecting sex with violence is more related to in-
crease in the incidence and severity of harmful comequences than is increasing
it-re amtlunt of sex.'Thus in the commission's viewI slasher film, which depict a
great deal ctf violence in an "mdeniably" sexuaf context but one that is far less ex-
plicit than is found in "truly pornographic" material, are more likely to produce
the h a r m described by the commission than are ""most of the materials available
in "adults ctnly' pornographic ctutlets.'""l
With respect to sexually explicit material that is nonvioient but depicts ""clegrada-
tion' drrrmination, subordination, or hunrifiation" "~usuatly of women), the co
sion also found that ""substantial expctsure to materials of this type bears some
causal relationship to the IeveX of sexual violence, wxuaI coercion, or unwanted sex-
ual aggressirin in the population so exposed.""""ecifically, the ccrrmmisdc3n found
that ""sbstantial exposure tct material of this variety is likely tct increase the extent
to which tht~wexposed will view rape or other forms of sexual violence as less seri-
ous than they othemise would have, will view the victims elf rape and other forms
of sexual violence as sign ifican tly more responsible, and will view the offenders as
significantly less responsible."" The commission, however, qualified its cunctustlon
regarding this material with the caveat that "there is less evidence" of a causal link
with antisocial behavior than is the case with violent pornogra~?hy The commission
thus reached its decision about the harm caused by degrading pcxmograghy with
"ssomewhat less ca>nfidencer'than it did concerning violent pornography and ac-
knc~wledgedthat its condusion ""mquiresmore in the way of assumption than was
the case with respect to violent material."": Again the commission relied on scien-
tific studies in judging that degrading pornography caused anitudinal changes.
One such study was a 1985 experiment by Check, a Canadian researebel:
Subjects were exposed ta one of three types of lsexually explicit film: (1) a film that
ccmtained sexual violence, (2) a nonviolent but degrading film, or (3) a film that
was neither violent nor degrading. As the cc3 ission described it, the sexually vi-
olent filrn ccmtained ""jcenes of sexual intercourse which included a woman
strapped to a table and being penetrated by a large plastic penisU";he degrading
film included a xene with "a man masturbating into a woman" face while sitting
on top of her"3nd the film that was neither viedent nor degrading ccmtained
"[slex activities leading up to intercourse between a man and a w~jman."~~
According ta the commissit>n,the study showed that "those in the vicllent and
in the degrading exposure ccmdition reparted sipificantly greater likelihood of
engaging in [rape and coercive sex] cclmpared to the control grc~up""(those who
did not watch any film), The commission noted, hawever, that these findings
shauld be ""viewed with cautictn" because ctf various methodological problems,
such as it-re participants%eing told the study was funded by a Canadian commis-
sion ctn pornograghy.'"T'he attorney general" scornmission alsct relied on a 1982
study by Zillrnann and Bryant, discussed in more detail below, that showed that
degrading pornctgraphy Xeads to similar attitudinal ~hianges.~"
As it did with respect to its findings regarding violent pornography, the com-
mission acknctwledged that the scientific data indicated ctnly that degrading
pornography led to altitudinal changes, not that these changes actually led to an-
tisocial acts. Once again, hctwever, the cctmmission was willing to make the as-
sumption, based ctn "'all the evidtmce,'5including their "awn insights and experi-
ence'' that ""elver a Xarge enough sample a pcjpulalion that believes that many
women Xike to be raped, that believes that sexual violence ctr sexual coercion is of-
ten desired or appropriate, and that believes that sex offenders are less responsi-
ble far their acts, will commi t more acts of sexual violence or sexual coercion than
would a population holding these beliefs to a lesser extent."81
The a>mmissionalso found that ""sbstantial exposure" to dqrading pornog-
raphy "bears some causal relationship to the incidence of various nunviolent
fcjrms of discrimination against or subordination of women in our s ~ c i e As ~ " ~ ~
the commission explained:
To the extent these materials create or reinforce the view that w o ~ ~ ~ efitnctiox~
n"s is dis-
pmpartionately tc? satisfy the sexual needs of men, then the materials wifl hdve pertr&-
 sive effects on the treatment of wc>lllenin society far beyond the indclence of identifi-
able acts of rape or ctther sexual viole~tce-We r3bviously carrrrot here explctre fulty all of
tlte forms in which wornell are discriminated against in cuntetnpurary societ-y.Nor can
we explore ail of tlte causes ctf that discrimillation agair-tst women. But we feet cctnfi-
delit in cttr~cludingthat the view ctf wctmext as available far sexual domination is OIIL"
cause of that discrimil~atioix~ and we feel confident as well in cor~clndingthat degrad-
ing material bears a causal wlntionship to the view that women ougt~tto subordinate
their c~clrr-idesims and being to the sexual satisfaction of men,".?
As to sexually explicit material that is neither violent nor demeaning, the corn-
mission stated that it was ""on the current state of the evidence persuaded that ma-
terial of this type does not bear a causaf relatirtnship to rape and other acts ctf sex-
ual violence.""" In coming to this concIusic~n,the commission acknowledged that
although many ctf the recent studies distinguish beween violent and nontriolent
fare, c~nlya few further subdivide nonviolent material into degrading and nonde-
grading. As the commission" review of the research reveals, studies that lump a l
nonviolent pornography together have yielded a>nflictingresults with respect to
whether such material negatively affects men" attitudes toward sexual vicllence
agaimt women, ""Bt," "suggested the comdssion, "when the stimulus mat-eriaf
. . . is considered there is some suggestion that the presence or absence of negative
effects from non-violent material might turn on the non-violent material being
considered %egrading."""l"
A 1982 study by Zillmam and Bryant, for example, showed that subjects mas-
sively exposed to nonviolent pornography "exhibited greater sex cal~ousness"
than did a control group,&In contrast, a 1985 study by Linz as well as a 1970 study
by Mosher produced ""contrary evidence" about the effects of nonvicrlent pornog-
raphy." The commission attempted to explain this conflict by suggesting that the
Zillmnann and Bryant study involved demeaning pornography-films in which
""women are portrayed as masclchistic, subservient, socially nctndiscriminating
nymphomaniacs"-whereas the nonviolent pornography I,inz and others used in
their studies that did not produce negative attitude changes was not demeaning.&
This hypothesis is supported by Check" investigation, discussed above, which
explicitly differentiated between demeaning and nondemeaning pornography,
Although a>ncltrdingthat the evidence does not show a causal link between
pornography that is neither viofent nor demeaning and acts of sexual vicllence,
the commission emphasized that this conclusion does not mean that there might
not be effects associated with this material that some would consider harmful. For
imtance, the comrnissian acknowledged arguments that this material might lead
tct the legitimization of sex acts that many members of society believe to be im-
moral; might promate sexual activity outside of committed relatiomhips; would
expose tc? public view activities that some believe should take place only in pri-
vate; might lead to a decline in the moral tcme of society; and might fall intc~the
hands of children, far whctm this material would be harmful. As to these ques-
tions, the commission candidly admitted that i t could reach no agreement and
that the differences among the mern'aers of the comrnissian reflected the different
attitudes in society at large on sexual matterse4"
Drawing ctn its conclusion that exposure to sexually violent or demeaning
pornography ccmtributes to sexual violence, cc?ercic,n, and gender dixrimination
and pointing to the lack of evidence that pornography that is neither vicslent nor
demeaning leads tc3 such ccmsequence-s, the cornrnissicltn recclmmended that law
enforcement prioritiize its enforcement ctf existing obscenity laws. The cornmis-
sion urged that prosecution of legally obscene material (that is, material that
meets the test set forth in Mifler v, Gulqornia, the landmark obscenity case dis-
cussed in Chapter 2) that contains violence "be placed at the top ctf both state and
federal priorities in enforcing the c3bscenity laws.'"?ecause the evidence of harm
was not as strtlng with respect tt3 pornography that is nonvicllent but degrading,
it-re commission was of the view that "if choices have to be made," "prosecution ctf
nonviolent but degrading obscenity should "receive slightly lower prioriv than
sexually vic>lentmaterial."" As to legally obscene material that is neither violent
nor degrading, the cctmmission was "deeply divided." %me members urged that
all legally obscene material be prosecuted with ""equal vigor," whereas other
members believed that materials in this category should "quite consciously be
treated as a lower priorityCf"But no member recommended deregulatirtn ctr even
total lack of prosecution of nontriolent, nondegrading r3bscenity6'
Despite its conclusion that sexualky violent or demeaning material is harmful,
the commission did not urge prohibiting such rna terial unXess it is also legally c&-
scene under current doctrine. Thus the commission expressly rejected the sugges-
tion that it recommend a d e f i ~ t i o nof obscenity broader than the Miller standard:
"Even assuming a desire to restrict materials not currently subject to restriction
under Miller, a desire that rnost of us drrr not share, we find a stratem of embark-
ing ctn years of constitutional litigation with little likefihrtod ctf success to be
highly co~nterproductive."~' The commission accordingiy concluded that law en-
ft3rcement officials should respect the ccmstitutionat line the Court has drawn be-
tween obscene material and sexually explicit material protected by the First
Amendment.'5
But this recc3gnitirm and acceptance of ctlnstitutional linitaticms on the govern-
ment" power to regulate expression raised a problem: Much, if not most, of the
violent and degrading material that scienti5c studies shr>wedleads tr3 violence or
discrimination is not sexually explicit enough to be legally obscene, Indeed, the
studies suggest that some of the rnost harmful material might be slasher films,
which although graphically violent are relatively low in sexual explicitness and
&us cannot be fairly described as pcsmograpEc. The commission recognized that
"even the most stringent Xegaf strategies within current or even in any way plausi-
ble ccmstitutionat limitations would lkely address little more than only the tip of
it-re iceberg" of materials that scientific studies shctwed are likely to promote vio-
lence or discrimination against women.'"
The cc3mmission was thus faced with the problem of defending its recornmen-
dations to spend considerable resources to regulat-e material that is but "'a thin
slice of the full problem,'The commission offered two reasons for its decision.
First, it suggested that because legally obscene materials present their messages
"'in a farm undiluted by any appeal to the intellect," it may be that such mat-erial
bears a "causal relationship to the harms we have identified to a disproportionatesnate
degree." h addition, the commission observed that "law serves an important
symbolic function'hnd that by forbidding even a small portion of the harmful
material these laws will serve "as a model far the condematory attitudes and ac-
tions of private citizens" with respect to harmfui material that the law camot far-.
bid.'7

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

Tkc DifinJtks r!f-Assessijzgthe Harm of "Degmding" Pmogruphy

Because of the inherent problems in generalising from laboratory experiments to
real-world behavior, as well as the lack of certainty about the amount and nature
ctf violent pornctgraphy, any confident conclusion that violent pcjmography is a
significant cause of violence against women is premature. What has been shown
is ctnIy a distinct possibility that such a causal cctmection exists. With respect to
pornography that is nontriolent but depicts "degradation, domination, subordina-
tion, or humiliaticm," even this modest conclusion is unwarranted on the current
state of the evidence,
To begin with, there is the perhaps insuperable problem of defining what is
meant by "&meaningu "pornography, The cclmmission defines this category as
that which "depicts people, usually women, in decidedly subordinate roles in
their sexual prac"cces that would to most people be a>nsideredhumiliating."""'"t
is an understatement tc3 say that people" attitudes tcpoward sex vary widely and
that there is n0 societal consensus as to which sexual acts are degrading or humil-
iating, Upbringing, education, religion, and prior sexual experience all contribute
tc:, one's views of these matters. To some, anything other than missionary-style,
heterosexual intercourse is demeaning tct women; tct certain radical feminists, pw-
cisely that activity is degrading to women. Some consider anal intercourse,
"Udoggy-style" vqinal intercourse, and oral sex to be acts ctf degradation; others
regard these as perfectly natural, healthy sex acts. Noreover, each viewer or
reader will interpret a given pornographic description differently, making any
consensus about whether the depiction is demeaning even more unlikely.
To be uxful, a term or a>nceptmust have a shared a x e meaning, This i s decid-
edly not the case with the term "&meaningo as applied tt3 sexual acts, let alone
portrayals of sexual activities, Tndeed, it is not clear that the pornographic image
often cited as the height clf degradation-a man ejaculating on a woman----can
garner such a cornensus. Author Wendy McElroy suggests that such scenes can be
interpreted as showing that it-re male actor was really turned on by sex, with the
woman" response of spreading the ejaculate cwer her body as showing that she,
tt3o, was enthusiastically involved in the encowtcsr."Versonally, 1 find the erst-
while (and to some extent still extant) Playboy iconography of woman-as-bmny
or man" "playmater' more demeaning to wornen than some of the much more ex-
plicit pornographic depictions. (In ccmtrast, Dietz has opined that Playboy centcr-
fttlds are not only ""hrmlessiri"%but ""actually healthy in many ~ s p e c t s . " ) ~In~ this
'
regard, it is interesting to note that apparently even the cc3mmission was unable to
agree ctn a Xist of examples of degrading p~>rnography.~~~
Although it found that there is ""Xstievidence causally linking [demeaningj ma-
terial with sexual aggression" "an there is with respect t~:,violent pornography,
the cctmmission nevertheless decided it-rat "substantial expcjsure to [demeaning
pornography] bears some causal relationship to the level of sexual violence, sex-
ual cclercion, or unwanted sexual aggression" as well as to "various non-violent
fc~rrmsctf discrimination against or subordination ctf women in our society.'"Z7Yet
the section of the report tl-rat surveys the scientific evidence states matters much
more cautiousfy. Here the explanation that the demeaning nature of nonviolent
pornography causes an increase in sexual callousness is characterized as a ""very
tentativer' suggestion based on " q e c ~ l a t [ i o n ] . ' "Of
~ these quite different state-
ments about the effects of demeaning pornography, the tatter comes much closer
to summarizing accurately what can fairly be inferred about the effects of ""d-
meaning" "pornography. Most of the experiments that tested ftx sexual caltous-
ness or aggressive behavictr-if they difkrentiated between types of pornography
at all-distinguished between vicllent and nonviolent material, not between de-
grading and nondegrading material. It was only in retrospect that scientists sug-
gested this distinction as a way of explaining a>ntradictor.yresuits produced in
studies of nonviolent p~>rne>graphy.~~'
At the time the commission reported, ctnly a single study (the 3985 study by
Check discussed above) differentiated beween degrading and nondegrading
pornography and found that demeaning pornography produced greater sexual
callousnes~.~~" But as Linz, Penrod, and Donnerstein correctly point ctut, there
were several serious methodoXogical flaws in this study. Even the a>mmissionac-
knowledged that the results of this study must be ""viewed witl-r c a ~ t i o n . " ~ T h e
commission also relied on a 1982 study by Zillrnam and Bryant that found that
long-term exposure to even nonviolent pornography can cause sexual callous-
ness. Although the study itself did not differentiate betvveen degrading and non-
degrading pornography, Check and Malarnuth subsequently suggested that the
material used in this study "dehumanized women" hbet?ause it portrayed them as
"%hystericallyeuphoric in response to just about any sexual or pseudctsexual stim-
ulation, and as eager tc? accommodate seemingly any and every sexual reqtle~t.'"~~
Linz, Penrod, and Donnerstein charge that ""Iter studies with both male and fe-
mate subjects have not replicated [Zillmann and Bryantk] findings.""'-" But they
refer to only two contrary studies, and bcsth are unpublished doctoral. disserta-
tions supervisd by Damerstein, one by Linz with male subjects and the other by
Mrafka with female subjects.lz4In another work nctt dedicated to rebutting the
commission% findings, these scjentists suggest that the differing results might be
explained by the fact that the demeaning images in studies that did not prsduce
an increas in sexual callrtusmss were part ctf feature-length films that contained
other images as well. Jn contrast, the studies that did produce increased sexual
callousness were either made up of clips of degrading scenes taken from full-
length movies (Check) ctr stag films with a high concentratictn ctf demeaning im-
ages (Ziltrnann and Bryant). They suggest tl-rat "it may not be frequency of expo-
sure tc:, images of female prt~miscuiQthat prt~duce[d]the [sexual calIousness), but
rather the ratio clf these images to other (not necessarily sexually related) images
that might account f ~ negative
r changes in attitudes about wtlmen,"a'"
But even if the contrary evidence is not quite as devastating as Linz, 1X3enrod,
and Donnerstein suggest, their cwerall criticism of the commission's assessment
of the effects of degrading pornography remaim valid. At the time the cclmmis-
sion reported, the scientific evidence was far too sparse and contradictory to sup-
port the ciairn that degrading pornography causes sexual violence.. Nor have
there been any significant studies since that time that wouId suppc>rtsuch a con-
clusion."' The commission's conclusion about the effects ctf degrading pornogra-
phy is a paragon of restraint, however, compared to its claims about the preva-
lence of such material. The commission asserts that demeaning pornography
constitutes ""smewhere between the predominant and ovewhetming portion ctf
what is currently standard fare heterosexual pornographyu and that such material
is "the largely predominant proportion of cclmmercially available pornogra-
phy,'"'"' But the commission cites not a single study or other source to back these
claim%and there is in fact little support for thern.
 Soon after the commission disbanded, Dietz and Sears published a study ana-
lyzing the data cclllected by the commission staff in a survey of the content of the
covers of pornographic material sold in "adult'" bookstores."?"In their section on
"degrading and humiliating imagery," the autl~orsbegjn by acknowledgjng that
"[tlhere is no standardized procedure for determining whether an image is de-
grading or humiliating" and that ""the American public is divided over questions
as to whether particular Porms ctf sexual conduct" can be described as such. For
instance, Dietz and Sears acknowiedge that there is no societal cclnsensus
whether conduct commonly portrayed in pornography, including ""ftzllatict, c m -
nlilingus, anal intercuurse, ejaculation onto the partner's Pace, or homosexuaI
acts," is debasing."""
Since they recognize this lack ctf consensus, one might expect the authors to
conclude that any attempt to determine what portion crf the surveyed material
ccmstituted ""degrading" "pornography would be bootless. Undaunted, however,
Dietz and Sears ctffer alternative classifications based ctn "traditional," """moder-
ate," and ""liberal" views of which pornographic depictions are degrading or hu-
miliating. They assrt: that according ta the traditional view, every item in the sur-
vey would be regarded as degrading or humilating ""because each item in the
sample at: minimum depicts a person as an object of purely sexual interest or ex-
poses to public view porticlns of the body that are customarily concealed and does
so for commercial gain.""'("
Mctderates, according to Dietz and Sears, accept that certain depictions of nu-
dity and sexual activity can occur without degradation or humiliation but find de-
grading or humiliating "'all those sexual actib~itiesthat are regarded as derriant or
shameful according to traditional values." The authors ""operationalty" "fine
"traditional values" as "the values that predominated in open discc3urs prior to
the sexual revolution ctf the 1960%.'Wietzand S a r s contextd that
the sexually moderate gel~eraltyview as degradtlg or izumilial.ing not only sexual de-
pictions of axtorectat eroticisxrr, 11rinatiox-tor urine, bestiality, an anatomically nor~~ial
man weariz~gfernale clothix~g,a person with breasts ancl a penis ("E-Ee/SheU),leather,
rubber, or latex, exaggerated sl~oesor boots, rliapers or diaperillg, shaved pubic areas,
childlike ctotl-ting, props or setting, or penetration by inanimate orbjects, . . . but afw
sexual depictictns of pwgnancy, engclrgedt breasts with depictictn of milk prc~ductirr~z,
tltree or mctrer persolis engaged it1 sexual activity a wciman deali~rgwith more tl-tan
or~epenis, sex betweell two wornell, sex between two men, fellatio, or cru~nili~tgus.""
Dietz and k a r s condude that "k]t least 52.5 percent of the [surveyed] material"
(58.3 percent of the magazines, 44.3percent of the books, and 33.5 percent of the
films) contain such images and thus would be considered degrading or humitiat-
ing by sexual moderates.
Sexual liberals, accclrding to Dietz and Sears, are those "who have by and large
accepted the changes in social behavior that accompanied the sexual revttlutirtn ctf
the 196Q's." The authors claim that even this group would find the fc?llowing de-
pictions degrading or humiliating:
ni~orectalerc3ticism (which includes fisting, enemas, feces and defecatini~,anti niwi in-
of penis . . . ), urine and urination, diapers and diapet-ing, bestialiqf n pers.son
set-r-ioi~
with breasts and n penis, nn nnatomicntty rtormnl man wearing female cfc~tkii-tg,
 leather fetish. items, rubber or latex fetish i t e ~ ~eexaggemted
~s, shoes or boors, childlike
clothi~~g,props ar settiz~gs,shaved pubic areas or pe~~etration by inanimate object^.'^?
Dietz and S a r s find that " m i n i m u m of 22.6 percent" of the surveyed material
(24.6 percent of the magazines, 18.5 percent of the books, and 16.9 percent of the
films) contained such depictions and thus ""was degrading or humiliating accord-
ing to the view of the sexual liberal."
There are several devastating problems with this attempt to quantib the
amount of degrading or humiliating material found in "adult" "bookstores. Rather
than conducting a survey of self-proclaimed traditionalists, moderates, and liber-
als to discover their reactions tt1 this material or even consulting data on
Americambttitudes to depicticms of various sex acts, the authors simply declare
what sexually traditional, moderate, and liberal views would comider demean-
ing or humiliating. Not ~7mfyis this ipse dixit unsupported, but it is unsupport-
able, particularly when it comes tc:, Dietz and Sears's assessment of what liberals
find degrading or humitiating. The very essence of sexual liberalism is toleration
of even the rnost ""deviant" sexual practices as long as they occur between or
among freely consenting adults. Althctugh many sexual liberals might find a num-
ber of the items ctn Uietz and Sears's list unappealing ctr even disgusting and thus
would not themselves care to engage in them, this does nctt mean that liberals
would c o n d e m these acts as demeaning ctr humiliating, at least not in all circum-
stances. Rather, whether rnost sexual liberals would consider depictions of anal
sex, transvestitism; leather, rubber, latex, ctr shoe fetishism; shaved pubic regictns;
penetration by inanimate objects; or many rtthers on the list demeaning depends
enormously ctn context.
Bietz and Sears allude to context by referencing titles such as Cor~zholedBlozzdes.
ctr Bildo Babic?s, and perhaps sexual liberals, particularly those with a feminist
bent, would find these and similar items demeaning tr7 women. But to assume
that sexual liberals would find various sexual practices per se ""shameful" and
thus humiliating or demeaning reveals a profound misunderstanding of sexual
liberalism. More significant, the failure to consider context renders absurd such
precise statements as ""ahinirnum of 22.670 of the merchandise studied was de-
grading or humiliating according to the view of the sexual liberal."
Similar criticisms can be made OF the assumptions about the opinions of moder-
ates (and to a lesser extent even traditionalists). For one, Dietz and Sears seem to
assume that every depiction that a moderate or a traditionalist would a>nsiderof-
fensive or immoral they would also denounce as demeaning or humiliating.
Although there is drrrubtfess a large overlap here, I doubt it is complete, especially
f ~ the
r moderate.
1 could go on pointing out flaws in this remarkable attempt to quantify the por-
tion of material found in '%adultrr"bookstores that is demeaning or humiliating, but
I think 1 have said enough ta show that these figures are basically meaningless ex-
cept tc:, confirm that there is extensive disagreement in society as to which porno-
graphic images are degrading, Thus even if we were ta accept the inflated figures
that Dietz and Sears arbitrarily assign as the percentage of the material that liber-
als would find demeaning or humiliating, what their analysis most clearly shows
is that with respect to nearly 80 percent of the material surveyed, &ere is wide-
spread societal disagreement as tc:,whether it is demeaning or humiliating,
More important, the figures profkred by Dietz and Sears would seem tcttally ir-
relevant to the inquiry into whether degrading pornography is a significant cause
of vicltence or other antisocial behavior, Like its findings as to the prevalence of vi-
olent pornography the commission's statement that degrading pornography is
the "largely predominant" "re commercially available is obviously meant to be
read together with its Hndings of negative effects in Xaboratctry studies to suggest
that such material significantly contributes to reat-world harm to women. Dietz
and Sears's study, which analyzes data the commission collected and explicitly
refers to the commissisn's category of degrading and humiliating pornography
would seem ta be an attempt tc:, bolster the cclmmission" 'Vindings" about the
prevalence of this type of pornography and thus the harm it causes."Vf this is its
implicit purpose, it fails utterly far the study does not attempt tt3 explain the rela-
tionsKp belween the various ctassifications of demeaning or humiliating pornog-
raphy that it employs and the stimuTus material ft~undto cause the increase in
sexual callousness in laboratory experiments. Dietz and Sears leave unexplored
whether the material that traditionalists, moderates, or liberals a>nsiderdegrad-
ing causes these effects or whether, as is more likely the case, there is some other
description that better fits the stimuIus material used in the experiments, Tn spec-
ulating that the distinction bel-tnreen degrading and nondegrading material might
explain the seemingly contradictory results of experiments with nonviolent
pornography Check and Malamuth do not, as do Dietz and Sears, focus on the
types of sexual activities portrayed but rather on context, Thus these investigators
note that a study that failed to produce negative effects depicted "more affgction
than is typical of much pomography,'kwhereas the stimulus material in a study
that did find an increase in sexual callousness ""dehumanized" women by por-
traying them as ""nondi~riminating~" "hysterically euphoric" in response to sex-
ual stimulation, and "eager tc3 acctlrnmodate seemingly any and every sexual re-
quest."134
There is a certain irony, however, in impeaching the commissian" cconclttsion
that degrading pornography causes harm. Qne of the more ""tberal" conclusions
that this rather "'conxrvative" ca>mmissionreached was that pornography that is
neither violent nctr degrading ""does not bear a causal relationship to rape and
other acts caf sexual violence." h t If the Inconsistent results of the studies examin-
ing the effects of nonvicllent pornography camot be explained by differentiating
between demeaning and nondemeaning material, then we are Xeft, fcar the time be-
ing at least, with no category of pornography that studies have consistently
shown nctt to cause increased sexual callousness or aggression in the Xaboratctry,
Jn cather words, precisely because the commission's condusion that degrading
pornography causes harm is overstated, so, too, is its conclusion about the harm-
lessness of ptlrnography that is neither violent nor degrading. Of course, there
may well be a category of nonvicllent sexually explicit material that causes neither
sexual calfoumess nor aggressive behavior in the Xaboratury. But until there is a
well-substanti at& expfanation caf why some experi rnents involving nontriotent
pornography shaw negative effects whereas others dct not, it is premature to con-
clude with certainty that pornography that is neither violent nor demeaning dctes
not a?ntribute tr3 sexual riiolence or discrimination.
In summaryf then, Linz, Penrod, and Donnerstein are correct in their basic criti-
cism that the commission ctverstates it-re erridence that either violent or degrading
pornography causes violence or other antisocial behaviitr, There are just too many
crucial questions that need to be answered before anything approaching the cer-
tainty of the rep~)rt% n ~ the harms of pornography would be just-
c ~ ~ n c f u s i oabout
ified,"'

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).

1. See Gerafd Gunther and Kathteen Sullivan, Cot.zsfitufiorrailLaw 1025-1029

(13th ed., 1 0 , See also Thornas Emerstm, The Syste??zof Freedom of Elxyress-io?~ 6-7
(1970).
2. Connick v. Myers, 461 U.S. 138 (1483). See also Strtlmbcrg v, California, 283
U.S, 355)(1931) ("The maintenance ctf the opportunitly for free political discussion
to the end that gtwernment may be r e ~ o n s i v eto the will of the people and that
changes may be obtained by lawful means . . . is a fundamental prixlciple of our
constitutional system"") Landmark Communications, Ins. v. V-irginia, 435 U.S. 829
(14"i") ("Whatever differences may exist about the interpretations of the First
Amendment, there is prxtically universal agreement that a major purpose of that
Amendment was tcl protect the free discussi11n of governmental affairs").
3. Frederick Schauer, Free Syeeclt: A P!i!ilasopllieail Erzqui~py40 (l"ri"2). See also
Larry Alexander, ""Freedom of Speech," U~~yclr?penlia of Applied Ethics 299, 302
(1998).
4. E.g., Robert Bark, "Neutral Principles and Some First Amendment
Problems," 47 471"lzd.L. j. l (1971).
5. As does Alexander Meikeljtthn in "The First Amendment Is an Absolutet''
1461 Szkp. Gt. Rev. 245.
6. John Nilittln, "Aretlpagitica-A Speech for the Liberty of Unlicensed
Printing" 0644) (""tt [Truth] and Falshood grapple; who ever knew -Truthput to
it-re worst, in a free and ctpen encctunter?").
7'. Abrarns v, United States, 250 U.S. 616 (1919) (Hotmes, J,, dissenting).
8. Chaplinsky v, New Hampshire, 315 U.S. 568 (1942).
9. Kovacs rr Cooper, 336 U.S. 77 (2949) (Frankfurter, J., a>ncurring).
10, Emersrtn, supra note 1 at 7, See also Potice Dept. of Chicago v. Mosley, 408
U.S. 92 (1972) (""Eel permit the a>ntinuedbuilding of our politics and culture, and
tt3 assure self-fulfillment for each individual, our people are guaranteed the right
to express any thought, free from government censorship").
11. See, e.g., Red Lion Broadcasting v, FCC, 395 U.S. 367 (1969) (""lis the pur-
pose of the First Amendment tct preserve the uninhibited marketplace of ideas in
which truth will ultimately prevail"") ;CC v, Pacifica Foundation, 438 U.S. 726
(""government must remain neutral in the marketplace of ideas"") Sixnon $r
Schuster, Inc. v. Members of N.V. St. Crime Board, 502 U.S. 105 (1391) ("the
Government's ability to impose content-based burdens on speech raises the
specter that the Government may effectively drive certain ideas or viewpoints
from the marketplace"") As d i s c u ~ e din Chapter 6, the asserticm that an unregu-
lated marketplace of ideas leads tc:,truth or progress has a>meunder attack in re-
cent years, particularly by radical critics.
 12. See, e.g., Whitney v. California, 274 U.S. 357 (1927) (Brandeis, j. cctncurring)
(free speech is valued ""both as an end and as a means"") First National Rank of
Boston v. Belloti, 435 U.S. 765 (1978) ("The individual" interest in self-expression
is a concern of the First Amendment separate frt~rnthe concern f ~ open r and in-
fc~rmeddiscussion"") Faor an example of commentatctrs who deny that free speech
is an individual right, see Owen Fiss, The Irony of Free Speech 2-3 (1996).
13, Atso telling is the Supreme Court's rejection of any broad, constitutictnally
protected autonomy right in areas of the law other than speech. See, e.g., Bowers
v. Hardwick, 478 U.S. 186 (1"36) (refusing to find consensual homosexual sodomy
to be a fundamental right); Washington v. Glucksberg, 521 U.S. 702 (1997) (no Pun-
damental right of terminally ill to physician-assisted suicide). In Light of these
cases, it would be anomalous to posit some broad, autonomy-based right to en-
gage in speech, It would require, at minimum, an explanation of why speech as an
activity is more essential to individual self-determinatictn than sex ctr choosing
when to end one" life. To be consistent with these cases, as well as the free speech
decisions allowing many types ctf expression to be readily regulated, any broad
autonomy interest in expression must be seen not as a PundamentaI right but as a
"liberty interest." Although such an interest could be readily overridden, the state
would at least have to show some legitimate reason fctr doing so. Such a
justification-oriented approach is not only consistent with the Court" jjurispru-
dence (for instance, the expressive conduct cases) but with Scanloncsautonomy-
based theory (discussed in the subsquernt paragraph in the text).
14. Perhaps an autonctmy-based right to speak extends only to sey-regnrdi~g
speech, such as diary entries or singing in the shower or even viewing obscene
material in the privacy of one" home. See Stanley v. Georgia, 394 U,S, 557 (1969).
But see Osborne v. Ohio, 495 U.S. 103 (1990) (finding no a>nstitutional right to
view or possess child pornography even in the privacy of one" home).
15. Thomas Scaniion, ""A Theory of Free E x p ~ s " o n , ~1' Ptlil. ti;" Pub. Afl. 204'
215-21 6 (1972).
16, Ronatd Uworkin, """The Coming Battles ctver Free Speech," New York Review
of Books, June 11,1992,
17, See, e.g., Marci Hamilton, ""Art Speech,'Q4 9n~id.L. Rev. 73, 99-100 (1996)
('"[Ajrt traditionally has been the target of totalitarian governments. For
example, . . . China attempted to eradicate a panoply of art forms, the gclvern-
ments of Eastern Europe suppressed and marginafized art and artists, and Nazi
Germany censc~redall art that would not assist Hitler" ideological goals"") As
dixussed in Chapter 3 at text accompanying notes 170 to 71, another reason that
nonideational art is highly protected may be that art as a medium is vitally con-
nected to political discourse.
18. Ronald Dworkin, "Wt>men and Pornography," N~crn/York Review of Books,
October 21,1993,
19. Dworkin does not, however, limit his rationale to the protection of political
speech. "The wrong is just as great," he insists, "'when gclvernment forbids the ex-
pression of some social attitude OF taste as when it censors explicitly political
speech; citizens have as much right to ccontribute to the formation of the moral or
aesthetic climate as they do to participate in politics." This extension makes his
theory more ccontrt~versial.It is one thing to argue that a right to equal participa-
tion in the political process is a precrtnditictn for the government's legitimately ex-
ercising power over individuals; it is quite another tc:, argue that government may
not legitimately exercise authority ctver individuals unjess each individual has a
right to ccmtribute ""to the fc)rmation of the moral or aesthetic climate." An clbvi-
ctus connection exists between individuafskceding political authoriq to the gov-
ernment on the condition that they retain an equal right to participate in deciding
how this political authority shall be exercised. The connection between ceding po-
litical power to the government and '"the fc?rmationof the moral or aesthetic cli-
mate" is not so apparent.
20. 249 U.S. 47 (191 9).
21, In the course of this opinion, Holmes alsc:, wrote what has cc3me to be the
most widely quokd phrase in any judicial opinion: "'The most stringent protec-
tion of free speech would not priltect a man in falsely shouting fire in a theatre
and causing a panic." contrary to it-re popular rendition, f-lolmes says nothing
about a "crowded" "eater.)
22. Oliver Miendell HaXmes Jr., Tfze Colnmo~zLaw 1 (1881).
23.249 U.S. 204 (1919).
24.249 U.S. 211 (19191, Debs received nearly 1mitlic~nvotes, or about 6 percent
of all votes cast in the 1912 election. See Gunther and SulXivan, supra note 1 at
1038.
25. WKle serving his prison term, Bebs received nearly 3 million votes in the
1920 presidential election, In 1921 his sentence was commuted by President
Warren Harding. Tbid., 1038-1639.
26.250 U.S. &I6 (1919).
27, Masses Publishing Co. v. Patten, 244 Fed, 535 ($.B, N.U. 1917).
28. Masses Publishing Co. rr Fatten, 246 Fed. 24 (2d Cir. 1917).
24. In the meantime, however, Hand" mrnost important contribution to free
speech doctrine would be his influence on Holmes through private correspon-
dence. Hand biographer Gerald Gunther believes that Hand" gentle prodding in
letters to HaXmes i s primarily responsible for Hofmes" marked change in attitude
about free speech reflected in the Abranzs dissent. See Gerafd Gunther, Learned
Hatld: The mid fhe fzkdge 161-166 (1994).
30. Letter Prorn Learned Hand to Zechariah Chafee Jr., January C-;, 1920,
reprinted in Gerald Gunther, ""Learned Hand and the Origins of Modern First
Amendment Doctrine: Some Fragments of History," 2'7SStan. L, Rev. 719, 766
(1975).
31. Letter Prorn Learned Hand to Zechariah Chafee Jr., January 2, 1921,
reprinted in Gunther, supra note 30 at '749.
32, Gunther and Sullivan, supra note 1at 3035.
33. 268 U.S. 652 (1925).
34. Like the rest ctf the Bill of Rights, the First Amendment is a restriction on
federal, not state, power. For decades, the Court had been using the Due Process
Clause to strike down state laws that attempted to protect the health and safety ctf
workers. ln contrast to its approach in GikEsw, the Court in these cases gave very
little deference to the findings of state legislatures, See, e.g., tochner v. New York,
1923 U.S. 45 (1905).
35. 274 U.S. 357 (3927).
 36. Finding that Whitney had not adequately presented her constitutional argu-
ments tc:, the state courts, Brandeis agreed with the majcjrity that the conviction
must be affirmed.
37. Herndon v, Lowry, 3301 U.S. 242 (1937).
38,383 E 2d 201 (2d Cir. 1950).
39.341 U.S. 494 (4 951).
40. Two justices, Hugo Black and William Douglas, dissented from the affir-
mance of the a>ntiictions,the latter commenting that: in this country communists
are "miserable merchants of unwanted ideas; their wares remain unsold."
41. Bond v. Floyd, 385 U.S. 126 (1966). Warren's approach in Botzd builds on
Justice John P-iarlan" silpinion for the Court in Vates v. United States, 354 U.S. 298
(1957). Tn reversing Smith Act convictions of "bfower echelon'9leaders of the
American Communist Party, Harlan distinguished between ""astract advocacy of
fc~rcibleoverthrowI'~hichhe held could nctt be suppressed, and ""dvocacy di-
rected at promoting tmlawful action," which could claim no immunity. Erorn pun-
ishment.
42. United States rr Spock, 416 E 2d 265 (1st Cir. 2969).
43. Watts v. United States, 394 US. 705 (1848).
44. Brandenburg v. Ohio, 395 U.S. 444 (1969).
45, The opinicm did not bear the name of any justice but was designated ""pr
curiam," or "by the Court'" i t is thaught that the opinion had been drafted by
Justice Abe Fortas before his resipation under a cloud of scandal.
46, Gunther, supra nctte 30 at 754,
47.414 U.S. 105 (1973).
48, NAACP v, Claiburne Hardware, 458 U.S. 886 (1982)-
49. Brandenburg v. Ohio (Douglas, J., concurring),
SO. 315 11,s.568 (1942).
51. See, e.g., Gooding v. Wilson, 405 U.S. 518 (19'72); Rosenfeld v. New Jersey,
408 U.S. 901 (1472); Lewis v. New Orleans, 408 U.S. "1)s (1972); Brawn v.
Okfahctma, 408 U.S, 914 (1972). In all ctf these cases, the Court f c ~ m dthat the de-
fendant was ccmvicted under regulations that applied for may have applied) to
protected speech as well as fighting words, For more on the "werbreadth doc-
trine" see note 22 to Chapter 4.
52. Defamation comprises libel and slander. Tf it-re defamatory statement is in
writing, it is libel; if made clraXIy slander. AXthough the Court in Glz~pll'nskyre-
ferred just tt3 libel, it no doubt meant tt3 exclude slander Erorn First Amendment
protection as well.
53. 3% SS.254 (1964).
54, This "kmaliice" wrgquirernent is somewhat ctf a misnomer in that it does not re-
quire that the defendant have iI1 will toward the plaintiff.
55. Valentine v, Chrestensen, 316 U.S. 52 (1942).
56. The abortion advertisement case was BigeTow v. Virginia, 421 U.S. 809
(1975). The lawyers' advertisement case was In re Primus, 436 U.S. 412 (1978).
57" Virginia PFzarmncy Board v. Virginia CiCz'sens Consufner Goulacif, 425 14.S.748
(19761, was the first case in which the Court held that ordinary commercial speech
was entitled to some First Amendment prcltection. Cendrnl Hudson Gas ~ 7 . Publie
Serzaice Conzmissiotl, 447 U.S. 557 ( 2 9801, announced the four-part test. The first part
ctf it-re test determines whether the speech is entitled tct any First Amendment pro-
tection at all, If on the one hand the speech either prt3pases an itlegal transactii3n
ctr i s misleading, the ban will be upheld without any further inquiry. If on the
other hand the speech cimcerns a lawful activity and is not miskading, the second
part of the test asks whether the gclvernment interest in regulating the speech is
'%ubstantial." If it is not, the regulation is una?nstituti<,nd.IF the interest is '%ub-
stantiatl," the regulation will be upheld as long as it "directXy advances it-re gov-
ernment interest asserted" and is "not more extensive than is necessary to serve
that interest." Despite the use of the word ""necessary" in the final step of the
analysis, later decisions make clear that the Pit between the ends of the regutation
and the means of accomplisKng it: need not be. perfect but only reasonable.)
58. Significantly, however, in a recent decision four justices (one shy of a major-
ity) suggested that this fairly deferential test be applied only tt3 regulations de-
signed to protect a fair bargaining process (e.g., regulatiom prokcting comurners
from misleading advertising). Xn contrast, truthful, nonmisleading advertise-
ments should in the view ctf these justices be afforded full First Amendment pro-
tection. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 4-84(1996).
54.354 U.S. 476 (195T (decided together with Alberts v. California).
60. For Dreisel; see ComrnonweaXth v. Fric.de, 271 Mass. 318, 171 N.E. 472
(15330); for Lawrence, Cornmimweatth v. Delace-y 272 l a s s . 327, 172 N.E. 455
(1930); and for Miller, Besig v. United States, 208 F. 2d 142 (9th Cir, 1953).
61, For sex education, see United States v. Demett, 39 E 2d 564 (2d Cir, 1930).
For Lfe, see People v, Larsen, 5 N.Y.S. 2d 55 (1938).
62.413 U.S. 15 (1973).
63, Unlike the Bm~rdenburgtest, which requires an assessment of the harm al-
leged to be caused by each specific instance of the speech that the government
s e e k to punish, the obscenity test does not require a showing that the material in
question is likely to cause harm. Similarly, the Court has avoided serious i n q u i ~
into whether as a class of q e e c h obxene material causes harm and, if so, whether
the harm is sufficient to warrant its prohibition. The Court has reasoned, some-
what circularly, that no such analysis is necessary because obscenity is outside the
protection of the First Amendment.
64. See ""Cncinnati" Trial Unanswered Question," New York Titrges, October 18,
1990, C17.
65. S k y a l k e r Records, Inc. v. Navarro, 739 E Supp. 5'713 (S.D. Ffa. 1999).
66, Luke Records v. Navarro, 960 _F: 2d 134 (11th Cir, 1942).
67..Fur a defense of the categorical exclusion approach in certain circumstances,
see Frederick Schauer, "CodiQing the First Amendment: New York v. Ferbertt'
1982 Stap. Ct, Rea 285,
68,458 U.S. 747 (1982).

1 , 0 n a sociological level, l a r c e l Duchampk '%sculpture" The F a u ~ z t a ishows

~
how crucial the medium is to defining whether an act will be understood as ex-
pressiim. Displayed in a 141"i"ew York art exhibiticm, The Ft~unkailzwas "nno~ori-
ctusiy nctthing ctther than a men" urinal . . . transformed [into art] by force ctf its
incclrporation into the acknowledged medium of an art exhibition." R~obertPost,
"Xecuperating the First Amendment,'~4Slan, L. Rev, 1249 (1995).
2. The nclmencfature "unprotected" "speech is not felicitous, for the First
Amendment does impose some limitations on government" ppower to regulate
such e x p ~ s s i ~In~ nRA.!.. v. City of St. Paul, 505 U.S. 37"7(1992), the Court held
that although the state might ban the use of all ""fighting words,'"t could nctt sin-
gle out special prohibition fighting words with a racial a>ntent.
3,427 U.S. 50 (19%).
4. Justice Lewis Powell, who supplied the fifth vote for upholding the regula-
tion in Young, wrote separately, stating that he was not "inclined to agree" with
the plurality" ppositirtn that "nonobscene, erotic material may be treated differ-
ently under First Amendment principles from other forms of protected expres-
sion." Rather, Poweil fctmd that "the governmental interest prompting it-re inciu-
sion in the ordinance of adult estabtishments was wholly unrelated to any
suppression ctf free expression" and that impact on any free speech interests was
"incidental and minimal." This "secondary effectsr' rationale was adopted by a
majcsrity of the Court in Rentcm v, Playtime Theatres, 445 5.S. 41 (1986), d i s c u ~ e d
more fully in the text. That the Court has accepted the ""sea>ndary effectsr' ratio-
nale only with respect to sexually explicit but nonobscene speech supports the
propositictn that this speech is efkctively treated by the Court as ""lower-value"
expression.
5 . Commerciai speech has also been referred to as occupying a ""subordinate
position in the scale of First Amendment values." See Ohralik rr Ohio Skate Bar
Assn., 436 1J.S. 447 (1978),
6. Spence v. Mrashington, 418 U.S. 405 (1974). Read literally, this test is too
broad. Violent acts such as racially motivated lynchings or political assassinations
are often intended to send specific messages that would be clearly understood.
The Court has held, however, that vitlfence can never be ccmsidered expressive
conduct. Thus Spelzce should be read as stating a necessary but not a sufficient
condition for communication as expressive conduct. Generalizing from the
Court's exclusion of violence, 1 have suggested that any actiiviq causing a harm
c~bviuuslyunrelated to expression is also ineligibXe for classification as expressive
conduct. See James Weinstein, "Hate Crime and Punishment," 73 7316, L. Rev. ,345,
355 n. 45 (11394).
7, See, e.g., Texas v. Johmon, 4% U S 397 (1989). Finding that all the state's as-
serted interests in ft~rbiddingflag burning were ~ l a t e dto the suppresst"orrof
speech, the Court subjected the ban tc3 ""strict scrutiny." "cause these interests
were not suf6cientty cctmpelling, it-re Court held that the ban on flag burning as a
ft3rm of political protest was unconstituticmaf.
8. See, e.g., United States v, O'Brien, 391 U.S. 367, in which the Court found (du-
biously iin my view) that a federal law banning draft card burning was unrelated
tct the suppression of speech. Accordingly, the Court subjected the regulation to
little scrutiny and easily upheld it.
4. Note, however, that the concern is with the government" sstutd rationale ft3r
the regulation, not the nctzanl purpose (somerimes referred to as "motive'" re-
vealed by legislative history, See ibid,
 10. See Wisconsin v. Mitchell, 508 U.S. 476 (1993).
11. Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).
12. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
13. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), quoting Cantwell v.
Connecticut, 310 U.S. 296 (1940).
14. Regan v. Time, Inc., 468 U.S. 641 (1984).
15. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (regulations
justified by their "communicative impact" on the audience are content based).
16. See, e.g., Boos v. Barry 485 U.S. 312 (1988) (restrictions "justified without ref-
erence to the content of the regulated speech" are content neutral). Ordinarily, as
in the examples given in the text, it is obvious from the face of the regulation
whether or not the law regulates expression becartse of the message it conveys;
sometimes, however, it is necessary to inquire into the regulation's justification.
See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); Renton v. Playtime Theatres, 475
U.S. 41 (1986).
17. Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819
(1995).
18. ,360 U.S. 684 (1959).
19. Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819
(1995). In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the ma-
jority of the Court found that a provision requiring the NEA to "tak[e] into con-
sideration general standards of decency and respect for the diverse beliefs and
values of the American public" not to be "the kind of directed viewpoint discrim-
ination" that "will compromise First Amendment values"; three other justices
(two of whom agreed with the majority that the restriction was valid) found the
prc~vision"unquestionably" and "quintessentially" viewpoint based.
20.403 U.S. 15 (1971).
21.491 U.S. 397 (1989).
22. Ibid. (Rehnquist, C. J., dissenting).
23. 512 U.S. 622 (1994).
24.475 U.S. 41 (1986).
25. Ibid. (emphasis added).
26. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).
27. Simon & Schuster, Inc. v. Members of New York State Crime Board, 502 U.S.
105 (1991).
28. See Carey v. Brown, 447 U.S. 455 (1980).
29. City of Ladue v. Gilleo, 512 U.S. 43 (1994) (O'Connor, J., concurring).
30. Geoffrey Stone, "Restrictions of Speech Because of Its Content: The Peculiar
Case of Subject-Matter Restrictions," 46 U. Clii. L. Rm. 81,107 (1978).
31. For a law regulating protests at abortion clinics, see the Freedom of Access
to Clinic Enhances Act (FACE), 18 U.S.C. 248, forbidding "physical obstruction"
or "force or threat of force" that "intentionally injures, intimidates, or interferes
. . . with any person because that person has been . . . obtaining or providing re-
productive health services." The Mississippi law was upheld in Cameron v.
Johnson, 390 U.S. 611 (1968).
32. See Cameron v. Johnson (upholding Mississippi regulation); Cheefer v.
Reno, 55 F. 3d 1517 (11th Cir. 1995) (upholding FACE). As Robert Post has ob-
served, "the !Supreme] Court has shown little inclination to assess content neu-
trality in terms of the discriminatory kffects\of a regulation." h s t , supra note I at
1268.
33. See international Society for Krishna Consciousness, lnc, v. Lee, 505 U.S. 672
(1992).
34. Even as ardent a champion of rute-bound jurisprudence as Justice ScaIia
r e c o g ~ z e sthat because ""[a311 generalizatiom . . . are to some degree invalid . . .
every rule of law has a few corners that do not quite fit." Antonin Scalia, "The
Rule of t a w as a t a w of Rules," 56 U. Ghi. L. Rev. 1175,1177(1989).
35, Bocts v. Barry, 485 U.5.312 (1988).
36, Geratd Gunther, 'T~cjreuvord:In Search of Evolving Doctrine on a Changing
Court: A Model for Newer Equal Protection," 86 Harzl. L. Rezt 1, El (1972).
37. The only speech regulatiom tc:, have survived "strict scrutiny" involve re-
strictions on expenditures or contributions to influence the political process, See,
e.g., Buckley v. VaXeo, 424 U.S. 1 (4976); Austin v. Michigan Chamber of
Commerce, 494 U.S. 652 (1990). In Burson v. Freeman, 504 U.S. 191 (1992), the
Court upheld a law prohibiting electioneering in the immediate vicinity of polling
places. Although seven of the eight justices participating in the case applied strict
scrutiny only four of the five justices who voted to uphold the law applied that
standard. (Justice Scalia vtlted to uphold the taw but found strict scrutiny inap-
propriate because he thctught the restricted area was not a public forum.)
38, Ward v, Rock Against Racism, 491 0.S. 781 (1989).
39, See Geratd Gunther and Mathleen Sulfivan, Gorzsiiifzrtional Law 1266 (13th
ed., 1997'7).The Court has made clear that with respect to a content-neutral law, the
""narrow taitoringP"equirement does not mean that the regulation must be the
"least restrictive or least intrusive" means of accomplishing the government's in-
terest, as it does with respect to a content-based regufaticm. ""Narrc~wtailoring" in
this a>ntextmeans only that "the regulation promotes a substantial government
interest that would be achieved less effectively absent the regulaticm," %e Ward v,
Rock Against Racism.
40. See Jarnes Weinstein, "Free Speech, Abortion Access, and the Problem of
Judicial Viewpoint Discrimination,""29 U , C, Ctazll's L. RPV,471,481-485 (1996).
41. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (find-
ing a law requiring cable systems to devote ctne-third ctf their channels to the
transmission of local broadcasts to be content neutral, despite the plainly a>ntent-
based justification f ~ the r law, including the prc~motionof ""educationaland infor-
mational programmingr" and "lcocal news and public affairs programmingr'). See
also Regan v. Time, Inc., 468 U.S. 641 (1984) (finding content neutral a federal law
requiring that photographs ctf 0.S. currency be in black and white and either less
than three-fourths or more than one and one-half the size of the actual currency).
42, See Ixegan v, Taxatirtn with Representation, 461. U.S.540 (1983). Cf. Gunther
and Sullivan, supra note 39 at 1208 (classifying speaker-based restrictions as con-
tent based).
43. See City of Ladue v. GiTleo, 512 U.S. 43 (1994) (intialidating a near totaI ban
on residential signs, including political messages placed by homeclwners on their
front lawns or in their windows). But see Members of City Council v. Taxpayers
f ~ Vincent,
r 466 U.S. B 4 (19%) (upholding a Los h g e f e s ordinance that forbade
the pctsting ctf signs, including campaign posters, on publicly ctwned utility
poles). The heightened scrutiny sometimes applicable to total medium bans is the
legacy ctf early free speech class. See Schneider v, State, 308 U .S. 147 (2939) (ip-rval-
idating an ordinance baming the distributicm of leaflets as a meam of controlling
litter); Martin v. Struthers, 319 U.S. 341 (1343) (invalidating a ban on the distribu-
tion of leaflets by ringing doorbells or otherwise summoning residents tr3 the
door), Although generally less speesh-protective than modern doctrine, the free
speech jurisprudence of the 1930s and 1946s was less Pc~rmalisticand thus sorne-
times more attuned ta the practical impact of speech regulaticm,
44.Regan rr Time, Inc., $68 U.S. 641 (1983).
45, Turner Broadcasting System, Inc. v, FCC, 512 U.S. 622 (1494).
46. See Perry Education Assn. v. Perry Local Educators' Assn., 466 U.S. 37
(15383) (establishing tripartite division of government prc~pertyinto traditional
public fora; designated public fora, such as school board meetings; and nonpublic
fcjra).
47, See Corneiius v, NAACP Legal Ueknse Fund, 473 U.S. 788 (1985).
$8. Members of City Council rr Taxpayers for Vincent, $66 U.S. 789 (1%4) (util-
ity poies); United States v. Kokinda, 497 U.S. 720 (1990) (post office sidewalk).
49. International SocieQ far Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
(1992),
50. See, e.g., Connick v, Myers, 461 U.S. 138 (1983).
51. See National Endowment for the Arts v, Finley, 524 U.S. 568 (1998)
(content-based judgments ""are a consequeme ctf the nature of art funding'". In
FinEey the Court upheld a provision of the NEA funding statute that required
those awarding grants according to ""artistic excellence and artistic merit" to
"takre] into consideration general standards of decency and ~ s p e c for t the di-
verse beliefs and values of the American public," The majority found that this
provision, as interpreted and enforced by the NEA, did not constitute the ""kind of
directed viewpoint discrimination" "that poses ""a realistic danger [to] First
Amendment values,'"
52. See Regan v, Taxation with Representation, 461 U.S. 5415 (1983).
53. See Rust v. Sullivan, 500 U.S. 173 (1991). See also Finkey, (Souter, J,, dissent-
ing) ('% tlcie Food and Drug Administration launches an advertising campaign
ctn the subject of smoking, it may condemn the habit wilhctut also having ta
show a cowboy taking a puff on the opposite page"). Indeed, the only definite
constitutional limitations on government-subsidized speech are in the realm of
partisan potitics-.There is thus no doubt that Congress could not constitution-
ally fund only Republican candidates. See ibid. (ScaIia, J., concurring).
Accordingly, any limitation on the government" power to speak would seem to
stern not from any cclmmitment tc) the marketplace of ideas (which government
propaganda can badly distort) but from the democratic self-governance ratio-
nale.
54, Gunther and Sullivan, supra nctte 39 at 1023. For a critit.idsm ctf this position,
see Jarnes Winstein, "Casebook Review: Combining the Best of Gunther and
Sullivan," 2l Seattle L. Xea 907,925-926 (1998).
55. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., $72 U.S. I749 (1985).
56. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
 57, See generally; Rubert Post, "The Constitutirtnaf Concept of Public Discourse:
Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v, Falruc/lft'
103 Harv, L. Rpz?.603 (1990).
58. Admittedly, regulation of speech through tort liability might in some in-
stances pass "strict scrutiny,'Y~orinstance, there is a compelling state interest in
allowing a child injured because of an explosion caused by faulty instructions in a
chemistry set to recover, and such a remedy is undoubtedly narrowly tailored.
I-he same, however, cannot be said about a suit Pctr faulty instructions on rug
cleaner that leads to same slight discoloration. Although the state certainly has a
legitirna te interest in a1]owing such recovery it is hardly "ccompelling." Mcsre im-
portant, prc~ductliability cases such as these are usually not thought of as free
speech cases, let alone ones triggering strict scrutiny.
59, Connick v, Myers, 461 U.S. 138 (1983).
60. Dun &r Bradstreet, Inc. v, Greenmoss Builders, Inc., 47%U.S. 749 (1985).
61. Connick rr Nyers (upholding dismissal by district attorney of a subordinate
who circulated a ""queslionnaire'kritical of the way he ran the office). (Note to
music fans: The district attorney in this case is the father of Harry Connick Jr.)
62. Gertz v. Robert Welch, hc., 418 U.S. 323 (1974). Gertz held that in defarna-
tion suits brought by private individuals concerning statements of public concern
the First Amendment fr~rbidsthe impositicln of strict liability; thus the plaintiff
must show &at the defendant was at faulqe,g., negligent) in making the false
statement, This is a significantly less onersus standard than the Mew York Enrcs
"halice" test, which requires the plaintiK to show that the defendant was reckless
in making the defamatory remark or knew that it was fabe. Cerilz also imposed
First Amendment limitations on the recovery ctf damages.
63. "When the speech is of exdusively private a>ncernand the plaintiff is a pri-
vate figure as in Du12 & Bmdstreet, the constitutional requirements do not neces-
sarily force any change in at: least some of the features of the common-law land-
scape." "Philadelphia Newspapers, Inc. v. P-iepps, 475 U.S. 7667 (1986). Thus in Dun
& Bradstreet, Inc. v, Greenmoss Builders, Inc., 472 U.S. 749 (19851, a defamation
suit involving a false credit repart that damaged a corporation" reputation, the
Court held that even Cerfz's l i d t e d protection did not apply
64. Hustler Magazjne v. FaXweIl, 485 U.S. 46 (1988).
65. In drawing the line between speech that is highly protected from content
regulation and speech that is not, the Court most often uses the phrase ""speech on
matters of public ccmcern" "rather than the term "po"fitical speech," This usage,
combined with the Court" ca>ntinttedreference to tl-re marketplace of ideas as an
mderfying free speech value, suggests both that the term "art matters of public
concern" encompasses more than political speech and that the underlying values
advanced by the protection of this speech include more than just democratic self-
governance.
66. Connick v. Nyers, 461 U.S. 138 (1983).
67, Perry Educatirtn Assn, v. Perry Lcttal Educators' Assn,, 460 U.S. 37 (1983).
68. Which is not to say that in every case the occurrence of speech in a highly
protected setting wilt automatically bestow added protection. For instance, I very
much dc~ubtthat any First Amendment protection would attach just because two
cc3mpetitors cc3mmunicateQprice inbrmation by holding up sigm in a public fcl-
rum ctr through a secret code in a published novel. The phenctmenon I have de-
scribed here is a strong tendency; not a rigid rule.
653, A sidlarly ad hoc determinatirtn is required in determining the degree ctf
First Amendment prt~tecticlnafforded defamatory statements.
70, See Post, supra note 1 at 1253 (if ""a medium !is] constitutionally protected
by the First Amendment, each instance of the medium [will] also be protected").
It shctuld be netted, however, that even among the highly protected media there
are some differences in the degree of protection. For instance, the print media
have been afforded greater immunity from cmtcnt regulaticln than have the
broadcast media. Compare Miami Herald v. Tcjmillo, 418 U.S. 241 (19174) (right-
to-reply law applicable ta newspapers held unconstitutional) with Red Lion
Broadcasting v. FCC, 395 U.S. 367 (1969) (right-to-reply regulation upheld).
Compare also Papish v* University of Missouri Curators, 410 U.S. 66u1973)
(holding that a university could nett expel a student for violating "conventions ctf
decency" by using the term ""mother fucker13n a student newspaper) with FCC
v, Pacifica Foundation, 438 U.S. 726 (1978) (uphctlding an FCC regulation pro-
hibiting the broadcast of ""idecent" mmarial at times when children were likely
tc:, be in the audience), See also Times Film Corp. v. Chicago, 365 U.S. 43 (1961)
(upholding licensing scheme for movies that would be plainXy unconstitutional if
applied tc:, print media), Untit recently there had been mcertainty whether the
Internet would be afforded the extremely strong immunity from content regula-
tion applicable to the print media or given the more qualified protection applica-
ble to the broadcast media, In striking down a law regulating ""indecent" speech
on the Internet, the Court in Reno rr ACLII, 521 U.S. 844 (1997) held that there i s
"no basis far qualifying the level of First Amendment scrutiny that should be ap-
plied to this medium."
"i". As the obscenity doctrine shows, the protection afforded expression just bc-
cause it occurs in a setting dedicated to public d i s c o u r ~or a medium essential to
such disctlure is defeasible. Similarlyt despite the highly protected status of the
print media, publishers of a cookbook that negligently called for the use ctf poisrt-
nous mushroom in a recipe would not be immune from civil liability, Stilt, be-
cause books are a Kghly protected medium of expression, such a lawsuit would
be seen as raising more of a. free speech a>ncernthan a suit against a drug corn-
pany for negligent1y mislabeting medicine bottles.
72. In conceptualizing doctrinal rules as a>nstructinga realm dedicated to pub-
lic discourse in which ccmtent regulation is forbidden and other spheres in which
content regulation is routinely permitted, I have been greatly influenced by
Robert Post" insightful work in this area, much of which is collected in his
Corlst-ifutiord Domains: Det~tocracy,C O Y T ~ ~ ~and U IManaget~terzf:
Z~~-y (1995). See also
Robert Post, ""Community and the First Amendment," 29 24~1.i~. St. L. 1- 473 (1995)-I
do not, hctwever, share Post's view that it-re rigorous protection afforded public
discourse is entirely limited to public discourse. See James Weinstein, ""A Brief
Introduction to Free Speech Doctrine," 2 9 29Anz. St. L. f. 461,470 (1995). For a criti-
cism of Post's perspective and the usefulness of the concept of "public discourse,''
see Paul Bender, ""Comment on Itclbert C. Post" 'Cammunity and the First
Amendment,"T29 A r k . $1. L. 1.485 (1997. For a reply, see Robert Post, "Reply to
Bender," 29 A r k . St. L, 1. 495 (1997).
 73, Police Dept. ctf Chicago v. Mosley, 408 U.S. 92 (1972) (emphasis added),
74, In the murky middle are settings such as the private workplace, places not
dedicated to the accomplishment of gc~vernmentalfunctions but where the gov-
ernment nevertheless has strong regulatory interests tt3 vindicate. in such places
the absence ctf any ctverarching, pervasive government purpose forecloses the
need for general governmental control of expression. Tn addition, although a set-
ting such as thcz private warkplace is not priunnrily dedicated to the discussion ctf
matters elf public concern, it Is where most adults spend the majority of their wak-
ing lives, and thus for many it is an impartant forum for the exchange of ideas. Yet
the existence of pressing ~ g u l a t o r yinterests unrelated tr3 the suppression of ideas
(e.g., preventing racial and gender discriminaticm) may justify specific instances
ctf content-based speech regulation. Tn these "intermediate" "aces, the determina-
tion of whether speech witl be affc3rded highly protected status wilt turn on more
particularized consideratirtns ctf both subject matter and context,
75. R.A.V. v. City of St. Paul, 505 U.S. 377 (19%).
76, WEch is not to say that applications ctf these regulations cannot raise seri-
ous Free speech questions. Both because the workplace is an important setting for
the sharing of ideas on matters of public ccmce-m and because sexist and racist
speech can be ideological, apylicatkn of these antiharassment provisions can im-
plicate free speech ccmcerns far more than the application of laws to counter in-
sider trading.

1. Mari Matsuda, ""Public Response to Racist Speech: Considering the Victim's

Story," in Words Tizfil; Woiind 36 (Mari Matstrda, Charles Lawrence, Richard
Delgado, and KimberlP Crenshaw eds., 1993).
2. Regina v. Zundel, f1987f 35 I>,L,R, (4th) 338.
3. Regina v. Andrews, [l9901 3 SCR 976.
4. Dun 8E Bradstreet, Inc. v. Greenmoss BBuders, Inc., 472 U.S. '749 (1"385),
5. This is the approach taken by Judge Easterbrook, for instance, in striking
down the viewpoint-oriented antipornography ordinance discussed later in the
chapter.
6. Kathleen SuIlivan, "Discrimination, Distribution and Free Speech," 37 Ariz.
L. Xez?.439,443 (1995).
7. Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819 (1995).
8, See Kingslery International Pictures Corp. v. Regents, 360 U.S. 684 (1454)
(New York's refusal to issue a movie license to Lady Chufferley's Lover on the
growds that it presented adultery in a morally favorabie light ""struck at the very
heart of comtitutionally prot-ected liberty'".
9.395 U.S. 444 (1969).
10, Racist ctratory whipping up a mob to lynch a black man is an example from
the not-too-distant past. See also the incitement to racial violence at issue in
Wisconsin 1;? Mitcllell, discussed in the ccmcluding secticm of this chapter.
12. If, however, the law proscribed only mcisf incitement, it would founder on
X.A. K's antiwlectivity principle. See Chapter 5, text accompanying notes 16 tc3 24.
 12. See, e.g., Matsuda, supra note 3 at 25-26 (by ""pant[ing] in our minds'9ideas
of "racial inferiority," hate speech "interfer[es] with our perception and interac-
tion with the person next to us"). Because a general ban ctn hate speech would
prohibit an enormous amount of speech that Brcl~zde~biarg holds may not be out-
lawed, the Court would likely invalidate the law as "%~erbruad,'~~ursuant to the
Court" coverbreadth doctrine, laws that prohibit a ""sbstantial" "amount of pro-
tected speech are under certain circumstances kvalid in their entirety, See, e.g.,
Reno rr ACLU, 521 U.S. 844 (199I7).
13, Perry Education Assn. v. Perry Local Educators%ssn., 460 U.S. 37 (1983).
14. In R.A.V. v. City clF St. Paul, 505 U.S. 377 (1992), the cross-burning case pre-
viously discussed, the Court found that the state had a compelling interest in ""en-
sur[ing] the basic human rights of members of groups that have historiealfy been
subjected to dixrimination," In addition, the Court stated that a law prohibiting
use ctf certain racist symbols "can be said to promote" this interest. The Court
nonetheless held the ordinance unconsti tutiond because the statute ""planTyr' was
not necessary to achieve that end, The Court found that ""pecisely the same bene-
ficial effect" could be achieved by banning all fighting words rather than singling
out just racial ones. See also Bob Jones University, 461 U.S. 574 (1983) ("pme gt3v-
ernment has a fundamental, cwerriding interest in eradicating racial discrimina-
tion in educaticjn;,"').
15. See generally Gerald Gunther and Kathteen SulXivan, Cunsfr'tutr'ouzaZLnw
1111-1112 (13th ed., 1997') (discussing arguments that bans on hate speech would
not effectively reduce acts of illegal discridnation),
16. Reno v. AGLU, 521 U.S. 844 (1997). I-he narrrjw-tailo- requirement obvi-
ctusly ctveriaps considerably with the requirement that the wstriction be "beces-
saryr90achieving some a>mpellinginterest.
17, indeed, it is doubtful that a general hate speech ban would survive even the
intermediate level of scrutiny applicable to a>mmerciaIspeech. In 44 Liquormart,
Inc. v. m o d e Island, 517 U.S. 484 (1996), the Court invalidated a prshibiticm on
advertising the price of alcoholic beverages. The plurality f c ~ m dthat the ban did
not ""directly advance" the interest in promtlting temperance because the state
""resented no erridence to suggest that its speech prohibition will significantly re-
duce market-wide consumption." Accordingly the ban impermissibly rested on
""speculation [and] conjecture." h addition, the plurality found the restriction
"more extensive than necessary" "pointing, inter alia, to ""educational campaigns
ft3cused on the problem of excessive . . . drinking." The plurality concluded that
"ewn under the less than strict standard that generally applies in commercjal
speech cases,;,"'the ban was unconstitutional, Four other justices agreed that the
"'fit" hbelween the ban and the goal ctf reducing drinking was "not reasonable" in
light of "other methods" by which the state could more directly accc3mplish this
goal.
18. Matsuda, supra note 1 at 25.
19.485 U.S. 46 (1988).
20. Texas rr Johnson, 491 U.S. 397 (1989). See also United States rr Eiehman, 496
U.S. 310 (1990) ("We are aware that descraticm of the flag is deeply offensive to
many*But the same might be said;,"for example, cif virulent ethnic and religious
epithets").
 21.505 U.S. 377 (1992).
22. Years earlier the U.S. Court of Appeals invalidated a Skokie ordinance that
banned the "dissemination of [material] . . . which [intentionally] promotes or in-
cites hatred against persons by reason of their race, national origin, or religion."
Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978). See also National Socialist Party v.
Skokie, 432 U.S. 43 (1977) (vacating for lack of procedural safeguards an injunc-
tion prohibiting the National Socialist Party from parading in party uniform, dis-
playing the swastika, or distributing anti-Semitic literature).
23. 343 U.S. 250 (1952).
24. See Milkovich v. Lorrain Journal Co., 497 U.S. 1 (1990).
25. In the unlikely event that the Court would still allow prosecutions for racial
libel to be brought at all, the New York Times "malice" standard of reckless or
knowing falsity would probably apply. At minimum, the state would have to
show that the speaker was "at fault" (e.g., negligent) in making these false state-
ments. Cf. Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974) (in defamation suits con-
cerning matters of public concern brought by private figures, states may not im-
pose liability without fault).
26. Even if Beauhamais's empirical claims could be disentangled from his ex-
pression of political beliefs, the courtroom is not an appropriate forum to assess
the empirical accuracy of theories asserting that traits of particular groups are bio-
logically based rather than a product of the environment. The judicial system is
simply not designed to deal with such imponderable questions.
27. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Nezo York Times and its prog-
eny perhaps leave room for narrow group defamation law. Thus it is possible that
falsifiable statements (e.g., all Jews have congenital syphilis) made with "malice"
(i.e., with knowing or reckless disregard for their truth) might be punishable. Still,
in light of R.A.K1santiselectivity principle, any such group libel law might have
to apply not just to defamation of racial or ethnic groups but to any collectivity
with legally protected reputational interests.
28. See American Booksellers Assn., Inc. v. Hudnut, 598 F. Supp. 1316 (S.D. Ind.
1984).
29. American Booksellers Assn., Inc. v. Hudnut, 771 F. 2d 323 (7th Cir. 1985). The
full text of the key provisions of the model ordinance (which is substantially the
same as the Indianapolis law) appears in Chapter 5, text accompanying note 40.
30.475 U.S. 1001. A "summary affirmance" (a practice developed by the Court in
response to a now largely repealed jurisdictional statute that required the Court to
review certain classes of cases) means that the Court agrees with the result reached
by the lower court, although not necessarily with its reasoning. A summary affir-
mance is binding precedent on lower courts. Chief Justice Warren Burger and
Justices Rehnquist and O'Connor dissented from this summary disposition, argu-
ing that the Court should have given the case plenary consideration.
31. In Chapter 5, text accompanying notes 48 to 51, I discuss at length the objec-
tion that Judge Easterbrook's condemnation of this ordinance as viewpoint ori-
ented was unjustified.
32. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974) (film whose subject matter is
sex and that contains some nudity but does not include exhibition of actors' geni-
tals, lewd or otherwise, is not obscene). Judge Easterbrook's emphasis in the
Hzrdtzui' ctpinion that the ctrdinance regulates material that is not obscene under
Miller suggests that the court thought the ordinance, in addition to being uncon-
stitutionally viewpoint based, was uncctnstitutirtnal because it was inconsistent
with the Supreme Court's obscenity cases. This supports my suggestion above
that courts may well find a general hate speech ban per se unconstitutirtnal be-
cause i t is inconsistent with the Supreme Court's incitement jurisprudence.
33, 521 U.S. 844 (1997).
34, That the Court uses strict scrutiny here is not contrary to either Judge
i t my suggesticm that the Court wtluld proba-
Easterbrook" approach in H t ~ d t ~ zor
bly find a broad hate speech ban tmconstitutional per se. Unfike the Tndianapolis
ordinance or a general hate speech ban, this pornography restriction was not
viewpoint based. Additionally, the law did not ban speech but merely tried, albeit
in an clverly intrusive way, to keep children from gaining access to it.
35, The Ccturt also found the law to be unconstitutirtnatly vague,
36. See Renton v. Playtime Theatres, Inc., 4175 U.S. 41 (1984) and b u n g v.
American Mini "Theatres, Xnc., 427 U,$. 50 (1976) (zoning ctf adult theaters); FCC v,
Paeifica Foundation, 438 U.S.. 1726 (1978) (regulation uf brctadcast "indecency").
37. See Ginsberg v, New York, 390 U.S. 629 (1968). Cf. Reno v, ACLU, 521 U.S.
8411;(1997) (invalidating law a,ntro21ing Internet distribution of "indecen t'" mater-
ial tt3 children because the law unduly interfered with adultskacess tc:,such mate-
rial).
38. See, e.g., Delph v, Dr. Pepper Bottling Co. of Paragould, Inc. 130 F. 33d 349
(8th Cir. 3937) (nctting that the plaintiEf in that case was "called some of the most
offensive of racist epithetsub These cases, howevel; have been careful not to con-
strue Title VII as ctutlawing ""isulated'kse of racial slurs but have found a viola-
tion only when the harassment has been ""sufficiently severe or pervasive to alter
the ccmditions of the victim" employment and create an abusive working envi-
ronment." See Meri tor Savings Bank v. Vinson, 477 U.S. 57 (1 986).
356. See, e.g., Harris v, L & L Wings, Inc., 132 E 3d 978 (4th Cir, 1997) (noting
that pctrnctgraphy contributed to the sexually hetstile environment that sup-
ported the award of punitive damages tc:, a Title V11 plaintiff); Carr v. AElison Gas
Turbine Division, General Motors Corp., 32 E 3d 1007 (7th Cir. 1994) (finding that
employeeshse of pornography to harass female coworker was evidence of Title
VXX violation); Burns v, McGregor Electronic Industries, Inc., 989 E 2d 959 (8th
Cir. 1993) ("The E E E agrees that a "urkpiace in which sexual slurs, displays of
"girlie" "pictures, and other offensive conduct can ccmstitute a hostile work envi-
ronment even if many people deem it to be harmless or insignificantu'-cit.ing
EEBC Comyli~znceMnnuab [CCH], s. 614, para. 3114[C][1], at 3274 119901); Etlison
v. Brady, 924 E 2d 872 (9th hir. 1991) (noting, in dicta, &at presence of pornogra-
phy can be sufficient tc:, show hostile work environment under Title V1I); Stair v,
Lehigh Valley Carpenters Local Union 600, 3993 WL 235491 (E.U.Pa.) (""T'e in-
tent to discriminate on the basis of sex in cases intiolving pornographic materials
is "mplicit,' and courts shauld recognize this as a matter of course"") Wise v,
New York City Police Dept., 928 F. Supp. 355 (S.D.N.Y. 11946) ("Ajury could rea-
sonably conclude that given the alleged omnipresence of pornography in the
Precinct and Wise's alleged repeated complaints about sexually harassing inci-
dents, Ithe superriisor] had actual ctr constructive ncttice ctf the sexual harass-
ment, and that his failure tc3 remedy it demonstrated deliberate indifference");
Blakely v, Continental Airlines, Inc., "32 E Supp. 731 (D. New Jersey 1998) (not-
ing that for three years Title W11 plaintiff was subjected tco porntlgraphy in the
workplace, including ""vile and disgusting pornography directed at her" "that re-
sutted in compensable psychological harm). But see Rabidue v. Osceola Refining
Co., 805 F. 2d Q11(6th Cir: 1986) ("The sexually ctriented poster displays had a de
minimis effect cm the plaintiff" work environment when considered in the con-
text of a society that condones and publicly features and commercially exploits
open displays clF written and pictorial erotica at the newsstands, cm prime-time
television, at the cinema, and in other public places"") Rabidikefs view, however,
has been questioned by later Sixth Circuit decisions. See, e.g., Vates v, Avca
Corp,, 819 E 2d 630 (6th Cir, 1987) (adopting Xabidulc dissenter" sopinion that sex-
ual harassment shctuXd be considered frc3rn the perspective of the victim),
$0. Andrews v. City of Philadelphia, 895 E 2d 2469 (3rd Cir. 1990).
41. See, e.g., Kingsley Brown, "Title VII as Censorship: Hostile Environment
Harassment and the First Amendment," 52 52Oltio St., L. Rev. 483 ( 1"31).
42. See Eugene Vijfokh, "What Speech Does 'Hostile Wc~rkEnvironment"
Harassment Law Restrict?" 885 Ceo. L. 1. 627 (1997).
43. R.A.V: v, City of St. Paul, 505 U.S. 377 (1992).
, E Supp, 852 (E,B, Mich. 1989);
44. See, e.g., Doe v. University ctf M i c ~ g a n721
UWM Post, Inc. v. Board of Regents of the University of Wixtmsin, 774 F. Supp,
1163 (E-U, Wis. 1991). See also Alan Kors and Harvey Silvergate, The Shadow
Utzl'versity(1998).
45. As the Universiq ctf Michigan did pursuant tct the code struck down in the
Doe case cited in note $4.
46, in suggesting that campus hate speech restricticms might constitutionally be
effectuated through a code aimed at racial discrimination, f am not suggesting
that such restrictions are necessarily a good idea. For my views on this matter, see
James Weinstein, ""A Constitutionaf Roadmap tct the Regulation of Campus Hate
Speech," 38 38~r;;rytl.eL. Xeu 163 (1991).
47,508 U,S. 476 (1993).
$8. Wisce~nsin~ 7 .Milchell alst:, suggests that despite R.A. K's antiseleeti.rrivprinei-
ple it may still be possible effectib~elyto punish unprotected speech with racist can-
tent more harshly than other subcategories of unprotected speech. A little-
d i ~ u s s e dfact about the Mitcjlell decision is that although the underlying crime in
that case was aggravated batter>itMitcheZI never laid a hand cm the victim. Rather,
Mitchell committed the battery by inciting his companions to attack the victim.
The predicate crime in Mitcltell (battery) was, however, ctne that is only rarely com-
mitted by speed. But what if a hate crime statute were applied to enhance- the
penalty for a speech crime, such as incitement tct violence ctr use ctf fighting words?
Such an application would seem to Pit squarely within R,A.K% caveat that a ""sub-
category of a proxribable class of speech can be swept up incidentally within the
reach clF a statute directed at a>nductrather than speech." R~rtra more detailed dis-
cussion of this possibility, see James Weinstein, "Hate Crime and Punisbent: A
Comment on Wisconsin ~ 7 .Mitchell," 73 Ore. L. Rev. 345,369-373 (1994).
 1. Richard Delgado and Bavid Yun, "Tressure Valves and Bloodied Chickens:
An Analysis of Paternalistic Objections to Hate Speech Regulation," 82 Calf. L.
Rpz?.871,883 (1994).
2. Mari Matsuda, ""PubXic Response to Racist Speech: Considering the Victim's
Story'"n W o d s Tjllai: Wck~i~zd 34 (Mari Matsuda, Charles Lawrence, Richard
Delgado, and KimberlG Crenshaw eds., 1993).
3, See In re Primus, 436 U.S. 412 (1978).
4. See New Ybrk Times v. Sultivan, 376 U.S. 254 (1964); Gertz v. Robert WeXch,
418 U.S. 323 (1974). See also the discussion of defamaticm in Chapter 2,
5. Watts v. United States, 394 U.S. 705 (1969).
6. New York Times Co. v, United States, $03 U.S. 713 (1471).
7. See, e.g., NAACP v. Claiborne Hardware Co., 458 U,$. 886 (1982).
8. See Janiice Oakes, ""Crjpyright and the First Amendment: Where Lies the
Public Interest?" 59 59dl'. L. Rpz?.135, 140 n. 35 (1984). See also Campbell v, Acuff-
Rose Music, Inc., 510 U.S. 569 (1994) (finding parody eligible for Pair use defense
even if the parody is cclmmercial in character).
9. See, e.g., Bethel School District No. 403 v. Fraser, 478 U.S. 675 (19236) (uphold-
ing against First Amendment challenge p u n i s b e n t of high school student for de-
livering lewd speech at a school assembly),
10. See tewis v, New Orleans, 408 U.S. 913 (1972) (Powell, J,, ccmcurring) (con-
stitutional protection may extend to fighting wards "addressed tct a police officer
trained to e x e r c i ~a higher degree of restraint than the average citizen").
11.The regulation that cumes closest to a regulation of public d i ~ o u r s eis the
restriction on "proemployer propaganda during union elections" mentioned by
Matsuda. See Matsuda, supra note 2 at 34. The widely criticized excepticln is dis-
cussed in note 48 below.
12. See Louis H e d i n , "Morals and the Constitution: The Sin of Obscenity," 63
Col'lrm, L., Rezt 391 (1363).
13. Charles Lawrence, ""If ~e HuLlers Let Him Go: Regulating Racist Speech On
Campus," in Words Tlzat Wou~zd,supra note 2 at 57.
14. See, e.g., Stephen Gard, "Fighting Wcjrds as Free Speech," 58 Wasl?.U.L. Q.
531 (1980).
15. 50.5 U.S. 377 (1992).
16. Northern %curities v. United States, 193 U.S. 197 (1904) (Hotmes, J., dissent-
ing).
17" 505 U.S. 377 (1992).
18. The need far the number of exceptions created in the opinion dctes, how-
ever, tend to cast doubt on the validity of the basic rule announced in that deci-
sion.
19. Chaplinsky v. New Hampshiret 3315 U.S. 568 (1942).
20, Kunz v, New b r k , ,340 U.S. 290 (1951) (jackson, J., dissenting).
21. As an alternative to the overbreadth rationale intioked by the concurring
justices, the Court could have disposed of the case by expressly holding that the
cityrsjust$cal.ion far the ordinance was unconstitutional, a rationale that seems to
be implicitly at work in Scalia's opinion. See James Weimtein, "Casebook IXeview:
Combining the Best of Gunther and Suflivan," 2l Seatattie L. Rev. 40T 919 (1998).
22. Catharine MacMimcln, Oirzly Wards 33 (1993).
23. Scalia's reference to "disfavored subjects" was not to cross burning but to
the topic discridnation worked by the ordkance. Indeed, one ctf the major flaws
in kaliars R.A.K opinion is that the cross burning that gave rise to prosecution
plays no role in what justice WKte aptly characterized as an "arid, dt3ctrinaire1'
analysis CIF the ordinance.
24. X.A.V% holding subjecting content-based regulation of unprotected speech
to strict scrutiny may not stand the test of time. Tt was supported by cznly five jus-
tices, and subsequent events have prt~ved'JusticeWhite correct that the majt~rity's
broad pronouncements about content-ctriented regujations of unprot-ected classes
of speech have served mainly to "ccoduse the lower courts." %e Alan Brownstein,
"Rutes of Engagement for Cultural Wars: Regulating Conduct, Unprotected
Speech, and Protected Expression in Anti-Abortion Protests," 29 29. C.. Davis L.
Rpz?.553,565584 (1996).
25. MacKinnon, supra note 22 at 12.
26. ibid. at 12-14.
27. Ibid. at 17.
28. ibid. at 15.
29, bid. at 18.
30. ibid.
31, Owen Fiss, The I r o y of Free Speech 14 (1996).
32. See Frederick Schauer, Fret? Speecfi: A 1DFzilosoptricaE Enquiq 181 (1982).
33, MacKimctn agrees that ""p]ornograghy contains ideas, like any ctther social
practicer' but insists that '"he way it works is not as a thought or through ideas as
such." Rather, it is "cconstructing and performative" rather than "referential or
connotative." MacKinnon, supra note 22 at 21.
34. My own view is that because pornography" primary purpose and ftmcticm
is sexual arousal rather than artistic expression ctr social commentary, &ere is an
interesting sense in which it is more "actlike" than most expressitm fatthou& per-
haps no more so than slapstick comedy or h ~ r r o rfilms, which are sidlarly de-
s i g e d to trigger physiological reactions).
35.413 U.S. 15 (2973)-
36. See Chapter 4, text aca>mpanyingnotes 36 to 37.
37. The term "speech act" hahas a technical meaning in the philosophical litera-
ture. In his seminal work How fo Do Thitzg~with Words (2nd ed., 1962)' philosc~pher
'J, L, Austin observed that under certain circumtance-s the very utterance of wtlrds
can constitute action (e.g., the minister at a wedding saying, "I now pronounce
yclu husband and wife"") a phenomenon that he referred to as the "illocutic~nary~~
aspect of language, Whether MacKimon means to argue that pornography is a
speech act in this technical s n s e is uncleaz: See MacKinnon, supra note 22 at 121
n. 31 (""Austin is less an authority for my particular development of "cting th;ings
with wordshnd rnure a foundational exploration OF the view in language theor~lr
that some speech can be action"") For an interesting although in my view unper-
suatjive attempt to argue that pornography is a speech act in the Austinian sense,
see Rae Langton, "Speech Acts and Unspeakable Acts," 2 Philasoyl~y& Pzdh.
Afl~irs293 (1W3).
38, Macannctn, supra note 22 at 16..
356. MacKinnon also argues that pornography is a speech act in that women are
harmed in its production and that it silences women" speech. See Macamon,
supra note 22 at 9, 15. I discuss the silencing rationale for suppressing pornogra-
phy and the harm-in-production raticmafe in Chapters 7 and 9,
$0. In this definition the use of ""men, children, or transsexuals in the place of
women" i s aalso considered pornography. MacKinnon, supra note 22 at 121 n. 32,
41. See Chapter 4, text aca>mpanyingnotes 29 to 38.
42, MacKimon, "Pornography; Civil Rights and Speech," 20 20ar~~. C.R,-G.L, L.
Rpz?. 1,21 (1985).
43. See United States v. One Book Entitled ""Ulysses,;,"'772 E2d 705 (2d Cir. 1934);
Yudkin v, Maryland, 182 A. 2d 798 (1962).
44. Miller v. California, 413 U.S. 25 (1973).
45, See Chapter 2, text accompanying ncttes 6 4 to 66,
46. American BoobeZlers, Inc. v. Hudnut, 771 E 2d 323 (7th Cir. 1985).
47. Kingstey International Pictures Corp. v, Regents, 360 U.S. 684 (1950).
48. Cass Sunstein, Der~ocmcyn ~ t dthe Problem of Frm Speech 223 (1 993). The "con-
trols on what ernpiirsyers may say during a union election" refers to NLRB v.
Gisset Packing Co., 395 U.S. 575 (1969). fn this case the Supreme Court affirmed a
National tabor Relaticms Board ruling that an employer's ssttement that the plant
would probably have tct be shut down if the union were elected was an unfair la-
bor practice because it constituted a threat of retaliatory action rather than a
""demonstrably probable'+rediction of ecctnomic comequemes. Unlike the other
speech ~ g u l a t i o n cited
s by Sunstein, the restriction upheld in Gissel does raise the
specter of illegitimate government purpose, namely, favoring unions in a labor
dispute. This suspicirsn is raised partly because of the lack of clear standards for
determining whether speech in this context ccmstitutes a threat or a prediction.
Such suspicion is also created because, like the topic of women and their sexual-
ity, union elections are inextricably linked to broader political ideologies. The
G?',sseldecision has been widely criticized. See, e.g., Mark Rapaport; ""Bargaining
Orders Since Cissel F7ncking: Time to Blow the Whistle on CisseE?" 1972 W, L. Xez?.
1170; julius Getman, ""libor Law and Free Speech: The Curious Policy of Limited
Expression," 43 Md. L. Rez?.4 (1984).
44. Ronald Dworkin, "Women and Pornography," N~crn/York Review of Books,
Octrlber 21, 1993, Dworkin is wide of the mark, however, when he asserts that
these ""dirty films are watched by a small minority." See the Appendix, text ac-
companying noks 94 to 112.
50. Regirza v. Butler, F19921 89 I3,t.R. (4th) 577.
53. See Renton v, Playtime Theatres, Inc., 475 U.S. 41 (1986) (Breman, j,, dis-
senting).
52. Advertisements of casina gambling are the feast palpably harmful type ctf
speech on Sunstein's list. Nonetheless, bans on such adverti~mentsare still far
less su?i;piciousfrom a First Amendment perspective than the lndianapolis ordi-
nance. Tlciere is no reason to suspect that bans on gambling advertisements are
motivated by anything other than a paternalistic desire to protect people from los-
ing money they camot afford to lose or perhaps by it-re more traditional belief that
g a d l i n g is immaral, In particular, there is no reason ta believe that when govern-
ment bans advertisement of gambling it is doing so because the speech portrays a
worldview with which the government disagrees or finds offensive, Whether
government should constitutionally be able to regulate actitrity on paternalistic or
moral grounds is an interesting issue but one that does not directly involve the
First Amendment.
Of course not everything on Sunstein" ilist is necessarily aJnstitutional under
current doctrine, A recent decision by the Supreme Court puts in doubt the abi'tity
of the government to ban truthful, nonmisleading advertising of produds, ser-
vices, or activities, which, even though demonstrably harmfd, the government has
chosen not to prohibit. See 44 Liquormart, Inc. v. m a d e Island, 521 U.S. 4% (1996).
53. See Matsudiz, supra note 2 at 37 (equaiiity rights violated by hate speech are
ctf "cctnstitutictnat dimension"") See also MacKimon, supra note 22 at 106 ("When
equality is recognized as a constitutional value and mandate, the idea that some
pectple are inferior to others on the basis of group membership is authoritati\7ely
rejected as the basis of policy . . . [Consequentty], social inferiority. cannot be inn-
pased through any means, including expressive ones"") ibid. at 77 (the
Reconstructic~namendments, i.e., the Thirteenth, Fourteenth, and Fifteenth
Amendments ratified after the Civil War, may ""8mand recanstruction of the
speech right itself"").
54. "Vlhhe alternative tc:,regulating racist speech is infringement of the claim of
Blacks to liberty and equal protection. The best way to constitutionally protect
these competing interests is to balance them directlyrTawrenee, supra note 13 at
64, See also ibid. at 86 (arguing that "[wle must weigh carefitlly and critically the
competing constitutional values e x p ~ s e din the first and fc3urteenth amend-
ments'').
55. "Issues at the equality-speech interface are not framed as problems of bal-
ance between two cherished constitutional goals . . . but as whether the right to
free speech is infringed acceptably or unacceptably." M~klacKnon,supra note 22 at
73.
56. The Bill of Rights, the first ten amendments to the Constitution, begins with
the words ""Co~tgues;~ shaIt make no law" and limits onXy the federal government.
See Barron v. Baltimctre, 7 Pet. (32 U.S.) 243 (1833). Similarly, the Fcturteenth
Amendment, which starts, "NOState shall," ccconstrains only state governments.
See Shelley v. Kraemer, 334 U.S. 1 (1948) ("phc fourteenth] amendment erects no
shield against merely private conduct, however discriminatory or wrongful"") In
contrast, the Thirteenth Amendment's prohibition against slavery and involun-
tary servitude contains no reference to gc~vernmentand thus applies to private as
wet1 as governmental action. See United States v, Kozminski, 487 U.S. 9331 (1988).
Aside frctm the prohibition against slavery and involuntary servitude, the only
other individual right protected by the Constitution against private interference is
it-re unenumrsrated right to interstate travel. Srre United States v, Guest, 383 U.S,
1745 (1"366).
57. E.g., Lawrence, supra note 13 at 62-63.
58. Charles Black, "The Supreme Court, 1966 Term-Foreword: 'State Action,"
Equal Protection, and CaIifr~rnia" Propasition 14," 8l 83.Inuv. L. Rev. (2967).
Similarly, Tribe comments: "Pjespite the precedents, and despite the vocabulary,
the Supreme Court has not succeeded in developing a body of state action "doc-
trine," set of rules far determining whether governmental or private actors are to
be deemed responsible f ~ an r asserted constitutional violaticm," hurence Tribe,
Amerz'cafl Co~zstitulFiolznlt a w 1690 (2nd ed., 1989). Tribe continues: ""Chaos, hctw-
ever, may itself be a form of order. If the usual premise is reversed-if the state ac-
tion cases are assumrsd 120t t ~ reveal
) any general rule, and i f the inquiry is redi-
rected to consider why this anarchy prevails-it is possible to construct an
"anti-doctrine,%n analytical framework which, in explaining why various cases
differ from one another, paradoxically provides a structure for the solution of
state action problems." "id. at 1691.
59. Sf-telley v. Kraerner, 334 U.S. 1 (2948); Burton v, Wilrnington Parking
Authority, 365 U.S. 715 (1961),
60, Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). See also Mctose
Lodge No. 107 rr Irvis, 407 U.S. 163 (1972) (holding that racial discrimination by
private social club is nctt state action despite slate conferred liquor license).
61. Tribe, supra note 58 at 1691.
62. See, e.g., San Francisco Arts and Athletics v. USOC, 483 U.S. 522 (l"377) ( 5 4
decision holding that the refusal by private organization to allow organisers of
gay athletic event to use the word ""Qlympic" was not governmental action de-
spite congressional. grant of exclusi\Te licensing power to ctrganization),
63. it will not drrr to argue, as same have, that racist speech in a public park is
state action because the speaker is using public property. Such ""pblic" speech is
essential to democratic self-government, and characterizing it as state action
would obliterate any meaningful distinction behiveen private and state action in
free speech.
64. R,A.V v, City of St. Paul, 505 US. 377 (1992); Bob Jones University v. United
Skates, 461 U.S. 574 (1983).
65. The Due Process Clause of the Fourteenth Amendment prohibits state gov-
ernment from depriving ""any person of life, liberty or property without due
prc3cess of law.',
66. See, e.g., Brownstein, supra nctte 24 at 1215; Leslie Jacobs, ""Nctnviotent
Abortion Clinic Protests: Reevaluating Some Current Assumptions About the
Proper Scope ctf Government Regulations," 70TaZ, L. RPV,1359,1429,1433 (1996);
Bri@ Amicus Czlriae f:)f fhe Amerz'mja Civil Liberfirs Uaion t.l al., in Schenck v. Pro-
Choice Network, 519 U.S. 537 (1997) (""te fact that the medical service at issue has
specific constitutional protection adds weight to the Easons supporting the in-
junction [against harassing protests at abortion clinics]"") See also Robyn E.
Btumer, ""ACLU Backs Free Speech for All-Except Pro-tifersfPVatlStreet
lourrznl, February 10,1999, A22 (former executive directclr of Florida ACLU ctrrm-
plains that ACLUs viewing cases of antiabortion speech as a "clash bemeen two
constitutional rights" "has ""tended to get in the way" of the ACLU" commitment
tct supporting the First Amendment rights of antiabortion demonstrators).
67. For instance, a confiict between the Free Speech Ctause and the
Establishment Clause can arise when religious speakers are denied a generally
available speech subsidy. See Roxnberger v. Rector and Visitors of the Univ. of Va,,
515 U.S. 819 (1985). See also Burson v. Freeman, 504 U.S. 191 (1942) (becauw gov-
ernment has affirmative duty "'to protect the integrity and reliability'%tf the elec-
tion process, regulation of private speech at a polling place to prevent '"ntirnida-
tion and kaud'" pmsnts a conflict bemeen it-re constitutio~nalright of free speech
and the constitutional right tt3 vote); Shepgard v. Maxwell, 384 U.S. 333 (1966) fbe-
cause governmrsnt has an affirmative obligation tct assure that a cridnaf defendant
receives a fair trial, widespread publicity generated by the press about a criminat
defendant can violate the constitutional right tct due process). For more ctn the dis-
tinction between true and spurious conflicts of constitutional rights, see Jarnes
Weinstein, "Free Speech, Ab~rtionAccessr and the Problem of Judicial Viewpclint
Discriminatjion,'T2 9.C. D ~ a i L. s Rev. 471,4"3-502 (1996).
68, Fiss, supra note 31 at 11.
69, See, e.g., Yates v, U ~ t e dStates, 354 U.S. 298 (1957); United States v, Rubel,
389 U.S. 258 (1967); Communist Party v. Catherwood, 367 U.S. 389 (1961).
70. See Weinstein, supra note 67 at 477. See also Eugene Valokh, "Treedctm ctf
Speech and the Constitutional Tension Method," W. CGlzi. Rnu~zdtable223 (1996).
71. Macamctn, supra note 22 at 86,
72. Texas v. Johnson, 491 tT.5.397 (1989) (Re-hnquist,C. J., dissenting).
g Free Speeclit I13 (1994).
7'3- Stantey Fish, TfjercrfsNo Szrcjl T h i ~ as
74.Ibid. at 102.
7'5. Brandenburg v. Ohio, 395 U.S. 444 (l"399) (Douglas, J., concurring) (empha-
sis added).

1. RonaId Dworkin, ""Women and Pornographys'" New York Review ujBooks,

Octclber 21,1993.
2. Potice Dept. of Chicago v. Mosley 408 U.S. 92 (1972), quoting Alexander
Meikfejohn, IJlllits'r;.nlFrlredo~i:TIze GollsdiGt4f-ionabPoruers of the People 27 (1948).
3. See, e.g., Richard Beigado and David Uun, "Tressure Valves and Btoodied
Chickens: An Analysis of Paternalistic Objecticms tc3 Hate Speech Regulaticm," 82
Cal. L. Rea 871,881-882 (1994).
4. The motif of the damsel in distress, common through the 19230s, seems to
have been less prevalent in it-re 1990s.
5. There are, of course, contrary media depictions of strong, independent
women even on tefevisicm commercials, Still, moms in charge of laundry, dimer,
and children predominate.
6. Richard Delgado and Jean Stefancic, ''Images of the Outsider in American
Law and Culture: Can Free Expression Remedy Systemic Social Ills?"?7 Cortzeli'L.
Xea 1254,1262-1 275 (1992).
7. See Richard Uetgado, "Campus Antiracism Rules: Constitutirtnaf Narratives
in Collision," 85 NW. L. Rez?. 343 (1991); DeIgadrz and Vun, supra note 3.
8. Unlike violent pctrnography, however, gender stereotyping in television
shows and mainstream films has not been linked to violence against women. The
fear that certain types of pornography cause violence would thereft~rebe a reason
for arguing for its suppression but not for urging a similar ban on gender steren-
typing on tefevisicm and in movies.
 9.424 U.S. 1 (1976).
10. See, e.g., Joel Gora, "Campaign Finance Reform: Still Searching Today for a
Better Way8'Q J. L. 6X3013 1137 (1997).
11, See Adam Winkler, ""Beyond Betloti," 32 Loy, L A . L. Rev. 133 (1998).
12. Mark Tushet, "'An Essay on X;tightsffX2Tex, L. Rev, 1363,1387(1984).
13. Red Lion Brcladcasting rr FCC, 3% 5.S. 367 (1369). But see Miami Herald v.
Tomillo, 418 US. 241 (1974) (holding unconstitutionaI a Florida right-to-reply law
applicable to newspapers). CF. Columbia Broadcasting Systems, Inc. rr Democratic
National Committee, 412 U.S. "1) (1473) (First Amendment does not provide the
Democratic Nationat Committee and antiwar group a constitutional right to place
paid political advertiwments on television), For a discussion on the crucial distinc-
tion between reading it-re Constitution to yennit a speech regulation designed to
increase equality in the marketplace of ideas and interpreting it to require such a
regulation, see J a m s &instein, "Taking Liberties with the First Amendment,'37
L. ti;- PFzif. 160,174 (1998), reviewing Owen Fiss's Irony ufFiiee Speech (1996).
14. Metro Brc>adcastingv. FCC, 497 U.S. 547 (1990).As a matter ctf equal protec-
tion law however, the rialidity of the program upheld in Metro Btlondcast.ing has
been put in doubt by Adarand Constructors, Inc. v. Pena, 515 U.S. 520 (1995).
15. See Jarnes Weinstein, "Free Speech, Abortion Access, and the Problem of
Judicial Viewpclint Discrimination," 213 U. C. Dtlvis L, Rev. 44L 519 n. 163 (1996).
16..See Atan Brownstein, "Rules of Engagement far Cultural Wars: Regulating
Conduct, Unprotected Speech, and Protected Expressicm in Anti-Abortion
Protests-Section 11," 29 29. C. Davis L, Rev. 1163, 1208-1209 (1996); Afan
Brownstein and Stephen M. Hankins, "Pruning Pruneyard: Limited Free Speech
Rights Under State Constitutions on the Property of Private Medical Clinics
Providing Abortion krvices," X U.C. Davis L. Rpv, 1073 (1991)+
17. See LLoyd Corp,, Ltd. v. Tamer, 407 U.S. 551. (1972); Hudgens v. NLRB, 424
U.S. 507 (1976). But cf. Pruneyard Slciopping Center v. Robins, 447 U.S. 174 (1CfSSE))
(free speech provision of California constitution prsviding speakers right of ac-
cess to privately owned shctpping centers does nctt constitute taking ctf property
w i t h u t just cc3mpensation in violation of the Fifth Amendment or a violation of
it-re shopping center owner's First Amendment rights).
18. See, e.g., DeIgado and Stefancic, supra note 6 at 1279 ("Racism fcjrcns part of
it-re dominant narrative, the group of received understandings and basic princi-
ples that fc~rrnthe baseline from which we reason").
19. i am grateful tc:, Larry Alexander for suggesting this idea tc:, me.
20. Although often mistakenly believed to derive from ""nigger," the term "nig-
gardly" is etyymologicafty distinct from this slur,
21. See Pam Belfuck, "Avowed Racist Barred from. Practicing LawI" Ne7u York
Tittzes, February 10, 1999, A12, Several years ago there were calls for the resigna-
tion of a unh~ersi ty president w ha, in arguing irz &vor of affirmative action, made
a statement that some interpreted as suggesting that blacks have less inherent aca-
demic aptitude than whites. He apologized, explaining that the remark was a slip
of the ttlngue and was "an absolute contradiction of everything I believe, of
everything 1stand for and of everything I have done throughout my life," He kept
his job, but the protest a>ntinued.See Catvin Bakex; "Tulane Graduates Boycott
Speech by Rutgers Chief'," Mew Orte~tzsTimes-Picnyzrtle,,May 21,1995, B1.
 22. See Department of Defeme, Directive no. 3325.6 (October 3,3996).
23. See, e.g., Amy Gage, "Wclman Boss? Not Here, Please," Diego Uniorz,
June 10,1996, D1.
24. W ~ m s i v.n Mitchell, 508 U.S. 476 (1993).
25. 363 U.S. 537 (1896) ("hthe nature ctf things [the Fourteenth Amendment]
could not have been intended to abolish distinctions based on color, or to enfc~rce
social as distinguished from political equality'"),
26. R.A.V. v. City of St6Paul, 505 U.S. 377 (1392);Wiscc>nsinv. Nitchell, 508 U.S.
47'6 ((1493).
27. R.A.V, V. City of St. Paul.
28. See, e.g., Charles Lawrence, "If Pie Hollers Let Piinn Go: kgulating Racist
Speech On Campus,'>n W o d s Tfznt Woz-~tzd77-78 (Mari Matslxda, Charles
Lawrence-, Richard Defgado, and Kirnberlk Crenshaw, eds., 1493) ("the idea of
racial inferiority ctf nonwhites infects, skews, and disables the operation ctf the
market"") See also Catharine NacKinnon, Toward n Ferninisii Tj~euqjo f f h e Sfnte 206
(1989); Cedric Poweil, "'The Mythalogical Marketplace of Ideas, R.A,V,, MifcheEt,
and Beyond," 32 11Zarx~.BlackLetier J., 1,1 (1995).
24. Richard Benjamin, "The Bizarre CLassrc~omof Dr. teonard Jeffries," j. of
Blncks in Higlzer Edldcntion 91,95 (Winter 1W0-1994) (describing Jeffries" theories
ccmcerning the ""melanin" hctor, which makes whites ""cold, materialistic "ice peo-
ple'" and blacks "warm, humanistic "sun people""").See also Jeffries v, Harteston,
21 Ei 3d 1238 (2nd Cir. 19941, vacated, 516 U.S. 862 (19951, opinion substituted, 52
E 3d 9 (1995) (lawsuit arising out of Jeffries's termination as chairman ctf Black
Studies Department of City College of New York for anti-Smitic remarks made
during an off-.campusspeech),
30. DeXgado and Stefancic, supra note 6 at 1260.
31, Ibid. at 1276.
32. Ibid. at 1281-1282.
33. By the 1830s (and probably earlier), there was a growing recc3gnitirm in the
United States, even in the South, that slavery was morally wrong. See generally,
Robert: Cover, Jiistice Acczised 33-82 (1975). See also Michaet Curtis, "The Curious
History of Attempts to Suppress Antislavery Speech, Press and Petition in
2835-37f" 89 NTU.L. Rev. 1785, 800 (1995). This moral recognition was sufficient to
lead to abolition in those parts of the United States where slavery was nctt a signif-
icant part of the ecrsnomic system, nor African Americans a large part of the popu-
lation. Such was not the case, however, in the South, with its vested economic in-
terest in slavery and its fears about the resuits of emancipation.
34. My source- for all of the facts and quotaticlns in this and the next paragraph
is Curtig supra note 33 at 803-859.
35. United States v. Scfiwimmer, 27'9 U.S. 644 (1929) (Holmes, J,, dissenting).
36. Delgad" and Stefancic, supra note 6 at 12%-1285 (emphasis added). These
authors cite no cases far this remarkable proposition. Rather, their sole authority
is an article by Charles Lawrence that they claim shows that ""courts construed
First Amendment law narrowly; so as to uphold convictions of pencefirl protes-
tors." "id. at 1285 n. 191 (emphasis added), citing Charles Lawrence, "If f e
Hollers IdetHim Go: Regulating Racist Speeeh on Campus,'YWO D u k L. J. 431,
466-467, But Lawrence- says something quite different: "hexamining the first
amendment cases coming out of the civil rights protests of the 1960s one observes
that although tlre Court zuent to some length to reverse convictiolzs in peacefiil protests
designed to achieve conformity with Brozurz [zl. Board of Education], they generally
denied review to those cases in which there was evidence of disruption or vio-
lence-particularly in those cases where the disruption seemed to emanate from
the protestors." Lawrence, ibid. at 467 n. 130 (emphasis added). (As we shall see,
to the extent that "disruption" includes sit-ins at privately owned segregated fa-
cilities, even this more modest claim is inaccurate.) See also ibid. at 466 ("We are
aware that the struggle for racial equality has relied heavily on the persuasion of
peaceful protest protected by the first amendment, but experience also teaches us
that our petitions often go unanswered until they disrupt business as usual").
37. My discussion of the civil rights cases draws heavily on Harry Kalven Jr.'s
classic work, The N e p alrd t l First
~ Ametzdmerrt (1966).
38.340 U.S. 315 (1951).
39.372 U.S. 229 (1963).
40.379 U.S. 536 (1965).
41.394 U.S. 111 (1969).
42.394 U.S. 576 (1969).
43. Four justices who generatly were among the most speech-protective on the
Court at that time-Warren, Black, White, and Fortas--expressed the view in that
case that flag burning was not protected speech.
44.368 U.S. 157 (1961).
45.373 U.S. 244 (1963).
46.378 U.S. 130 (1964).
47.378 U.S. 347 (1964).
48.385 U.S. 39 (1966).
49.388 U.S. 307 (1967). See also Cameron v. Johnson, 390 U.S. 611 (1968) (reject-
ing a challenge by civil rights activists to Mississippi ordinance prohibiting pick-
eting and mass demonstrations that "obstruct or unreasonably interfere" with
ingress or egress to public buildings).
50.382 U.S. 87 (1965).
51. The Court arguably overextended free speech principles in Brown v.
Louisiana, 383 U.S. 131 (1966), which reversed breach-of-peace convictions of civil
rights activists for holding a silent demonstration, including a sit-in, to protest un-
constitutional segregation of a small parish library. A plurality opinion by Justice
Fortas, joined by Chief Justice Warren and Justice Douglas, found a First
Amendment right to demonstrate in public libraries, at least so long as the
demonstration was not disruptive. (Justice White concurred in the reversal of the
conviction on the grounds that the protestors were asked to leave the library not
because of their protest activities, which were not significantly different from nor-
mal library use, but because they were black. Justice Brennan invoked the over-
breadth of the breach-of-peace statute to reverse the convictions.) In dissent,
Justice Black described the plurality's holding as "completely new doctrine," in-
sisting that the First Amendment "does not guarantee to any person the right to
use someone else's property, even that owned by the government and dedicated
to other purposes, as a stage to express dissident ideas."
 52, TV Guide, June 29-July 5, 1996, 34, lists these images as among "'the 100
most memorable mcjments in TV history," """First, attack dogs were set loose on the
protesters, then the marchers were blasted with fire hases shaoting water at 100
p.s.i., enough force to knock bark off trees. The evening news programs on all
three neworks showed extensive footage ctf the appalling police response, The
broadcasts awakened the nation to the barbarity being a)mmitted in the name of
racial segregation and added considerable impetus to the civil rights movement.'"
53. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Beauharnais v. Illinois,
343 U.S. 250 (1952).
54. 376 U.S. 254 (1964).
55. Robin Barnes, "The Reality and Ideology of First Amendment
Jurisprudence: Giving Aid and Comfort to Racial Terrorists," in inreciit~gtlte First
Atlzendmer~t257 (David Atlen and Robert 'Jemen, eds., 1995).
56. Whether the rule announced in that case went too far in protecting free
speech at the cost of reputational interests, as some now argue, or did not go far
enough, as others maintain, is a much-debated issue,
57. See, e.g., Catharine MacKjnnon, Onl,y 'tlic~rds79 (1993) ("5ullivatz used sup-
port for civil rights tt3 make it easier for newspapers to publish defamatory false-
hoods without being sued.").
58. Kalven, supra note 3hat 67,
59.374 F. Supp. 351 (E.U. Ark, 1959).
60. Lerner v. Casey, 337 U.S. 468 (1958).
61.371 U.S. 415 (1963).
62. Kalven, supra note 37 at 63.
63,278 U.S. 63 f 2928).
64.377 U.S. 288 (14164).
65. Kalven calls the Court" efforts tt3 distinguish Bfyalzt ""surprisingly inept."
KaXven, supra note 37 at 94.
66..364 U.S. 480 (1960).
67,372 U.S. 539 (1963).
68, 360 U.S. 109 (1959).
653,360 U.S. 72 (1959). See also Braden v, United States, 365 U.S. 431 (1961) (re-
jecting First Amendment challenge to conviction for refusing to answer questions
about Cctmmunist Party activity posed by the House Committee on Un-American
Activities); Wilkinson v. United States, 365 U.S. 399 (1961) (upholding power of
Congress to require witnesses to answer questiom pertinent tc:, its investigation of
Commtmist activities).
70*458 U.S+886 (1992).
71. See, e.g., Macannon, supra note 57 at 41; Mari Matsuda, ""Public Ixesponse
tt3 Racist Speech: Considering the Victim" Storyf" in W o d s nznt Wound 47 (Mari
Matsuda, Charles Lawrence, Richard Delgado, and Mimberliit Crenshaw, eds.,
1993); Lawrence, supra note 28 at 86.
72, See, e.g., Romer v, Evam, 537 U.S. 620 (1996) (state comtituut~nalprovision
prohibiting state and local governments from passing laws far;bidd.ing dixrimi-
nation on the basis of sexual orientation viclfates the Equal Protection Clause of
the Fourteenth Amendment).
 73, See Lawrence, supra note 28 at 83,
X . See Charles Catleros, ""Reconciliation of Civil Rights and Civil Liberties
After R.A. S/, v. City ofSt. Paul: Free Speech, Antiharassment Policies, MulticulturaI
Education, and Political Correctness at Arizona State University;" "tail L. Rez~.
1205,1215-1219,1220-1231 (1992).
75. See GeraId Gunther, "Good Speech-Bad Speech," 24 Sta~zfordLnzuyer 7
(Spring 3990).
76. Police Dept. of Chicago rr NosXey, 408 U.S. 92 (1972) (emphasis added).
77.491 U.S. 397 (1989)-
78. United States v. Eichman, 496 U.S. 310 (1990). Marshall joined Brennan's
opinion in both flag-burning cases.
79. Linmark Associates, Inc. v. -Township of Wiflingboro, 431 U.S. 85 (1977).
Brennan joined this ~tpini~3n.
80, See Paris Adult "Teatre 1v. Slatun, 413 U.S. 49 (1973) (Brennan, j.,joined by
Stewart and Marshall, JJ., dissenting). Marshall was the author of the Court" ddeci-
sion in Stanley v. Georgia, 394 U.S, 557 (1969) that held that despite the ctbxenity
exception it was una>nstitutional for the state to prosecute people for possession
of obscene material in their homes.
84. Hudnut v. American Booksellers Assn, Inc., 475 U.S. 1001 (I 9236).
82. See, e.g., Rdan Hunter and Sylvia Law, Brief Anzici Cun"ae of Fcnzinr'st Anti-
Celzsorshl'y Task Force, in American Booksellers Assn. v. Hudnut, reprinted in 21 U.
Miclz. I. L. Re$ 69 ((1988);Nadine Strossen, Llcfetzdiltg IJllmograplzy (1945).
83, ""hctsej whct operate . . . universities [and] major corporations . . . benefit,
and on a subconscious levet they know they benefit, From a certain amount of
low-grade racism in the environment. 1f an cttcasionaf bigot or redneck calls ctne
of u s a nigger or spick one night late as weke on our way home from the library
that is all tc:,the good. . . . This kind of behavior keeps non-white people on edge, a
little off balance." "ithard Deigado, ""Address to State HistoricaE Scjciety,"
Madison, Wiscomin (April 24,1989), quclted in Lawrence, supra note 28 at 82, See
also Lawrence, ibid. ("V]hose of us who abhctr racist speech but insist that it can-
not be regulated may be, perhaps unwittingly, bcnefitting from the presence of 'a
certain amoml ctf low grade racism' in the environment").
84. For instance, Mari Matsuda writes that she "aacJmire[s] the courage and con-
victictn'ktf "Jewish civil libertarians whct have eloquently, and at great persrtnaf
cost, argued for the free speech rights of Nazis and Klan members." AAXthough she
disagrees with this view, she rectlgnizes that it does not come from inxnsitivity to
the harms of hate speech but from the belief that "the right of protest [is] essentiat
for the protection of minorities." Mmi Matsuda, "Public "Response to Racist
Speech: Considering the Victim" Stoory;" W Micll, L. Rea 2320,2326 (1989).
85. Colin Diver, 'Qf Water Buffaloes and Newspaper Heists," 29 29e~u1Law
founznl23 (1993).

1. Mari Matsuda, ""Public Respome to Racist Speech: Considering the Victim's

Story," 87 Mich. L. Rea 2320,2336 ((1989).
 2. Ibid. at n. 84 (emphasis added).
3, Ibid.
4. Ibid.
5, MacKimon reports that despite "an extensive literature search," she was un-
able to find any ""Xaboratory or experimental research on racist hate literature par-
allel to that on the effects of pornography" Catharine MacKinnon, Orlly Words 134
n. 53 (1933).
6. Matsuda, supra note 1 at 2337 n. 88.
7. See 347 U.S. 483 (1954).
8. Even if it could be shown that racist propaganda is a significant cause of psy-
chic injury or self-hatred, the further question would arise whether these injuries
justify suppreskon ctf public discourse, The answer degertds on one" views on
the pul-pclse of free speech protecticm. On the view that the core free speech value
is respecting the right of each citizen to participate in the shaping of our politics,
institutions, and culture, then prevention of these harms may not be sufficient
grounds for suppressing racist propaganda.
9. Matsuda, supra note 1 at 2339.
10. Matsuda cites an mpublished paper and one of the sources it cites, with an
additicrnal reference to a study on media violence.
11. According ta a recent estimate, there are now more than 1,000 hate speech
sites ctnline. See note 31 betow. (In crtmparison, a recent study found there are ap-
proximately 34,000 pomt3graphic sites, See the Appendix, note 112 and accompa-
nying text.)
12. See the Appendix.
13, Cass Sunstein, Democr~cyn~zdthe PuobEer~tof F I ~ PSpeech 217 (1993). See also
Attorney General" Commission on Pornography, Final Report 299-351 (19236);In
HnrnzS Way: TIze Pornogmphy Civil RiglzEs Hearings (Catharine MacKinnon and
Andrea h o r k i n , eds., 2997); Richard Detgado and Jean Stefancic, ""T?rornography
and Harm tc:, Women: 'No Empirical Evidence?'' 53 53Of2ioSt. L. 1,1037 (1492).
14, See Edward Mtrlvey and Jeffrey Haugaard, Rqort of fhe Surgeotz Gerxcralfs
Workshop orz inorrtograyhy nnd Priblic Health 34-35 (1986) (emphasis added). For a
surrrey ctf the studies on the effects ctf the pornography, see NeiX Malarnuth,
"Pornography'dimpact on MaXe Adolescents," Udolescetzt Medicilfe: Stafe of the
Art Reviews 563,56&571 (1993) (reporting that there is currently enough evidence
to justify the "tentative arnclusion" that violent pornography causes both aggres-
sive behavior in flw fabaratoiy and at least sltort-teriiz attitladinat changes) (empha-
sis added). See also Daniel Linz and PJeil Nalamuth, Parnograptzy (1993);
Ponzogmphy: Research Advances a r ~ dPolicy Golzsilrferations (Doff Zillrnann and
Jennings Bryant, eds,, 1989); Edward Donnerstein, Daniel Linz, and Steven
Penrod, The Question of Pomngmylzy (1987).
15. Matsuda, supra note 1at 2339.
16. MacKinnon, supra note 5 at 11.
17. See, e.g., Words That Wolc~zd7 (Mari Matsuda, Charles Lawrence, Richard
Delgado, and Kimberlh Crenshaw, eds., 1993); Andrew Chin, "Making the fniurld
Wide Web Safe for Democracy: A Medium-Specific First Amendment Analysis,"
19 FJasfi~?gsCoriilm. & Erzl. L. J. 309, 3.14 (1997); Marianne Wesson, "%X, Lies and
Videotape: The Pornographer as Censor," 66 tici~slz,L. Rezt. "1)13,%3 (1991).
 18. Owen Fiss, The I r o y af Free Speech 16 (1996).
19, indeed, Fiss? use of tile passive voice to distance himself from this argu-
ment (""[It has been asserted that'hand "[tlhis silencing dynamic has also been at-
tributeQU")uggeststhat even he may drrrubt its validity See ibid.
20, Like so many who write ctn the subject of hate speech, Fiss does not distin-
guish face-ttl-face or otherwise personally directed racist speech from racist
speech that is part of public discourse, Thus at times he refers to silencing by a
person who "hurls racial epithets" "~sc. e.g., Fiss, supra note 18 at IT), whereas at
other times he seems to be using the term "hate speech"" in its more generat sense
to include all public expression uf racist ideas.
21, ibid. at 17-18,
22. bid. at 21 (emphasis added).
23. MacEmon, supra note 5 at 9-10.
24. Attorney General's Commission Ixeport, supra note 13 at 865-866.
25. Ibid. at 888.
26. Ibid. at 88&889. Tn an investigation of the pornctgraphy industry, Wendy
NcElroy found '%no evidence that women are coerced into performing porno-
graphic acts." Although she heard "rumors of women who had been pressured
into performing sexuat acts," none of the perfc~rmersshe intex~iewedreported
having been so ccrrerced, Rather, she saw ""overwhelming evidence of informed
consent," Wendy McElroy?XXX: A Wommzz's Right to Ponzograp!xy 39 (1995).
27. MacKimon, supra note 5 at 1' 76 (""Americans are taught this view by about
the fourth grade and continue to absorb it through osmosis from everything
around them for the rest of their lives").
28. Forty-five states have laws banning obscenity. See Robert Jacubs, ""Urty
Words, Dirty Thoughts and Censorship: Obscenity Law and Non-PicttlriaX
Wcjrks," 2l 21m U. L. Rev. 155,171-172 m, 110-112 (collecting state obscenity laws)
(1992).
29. For a discussit?n of the ineffectiveness of current obxenity laws, see Bruce
Taylor, ""ard-Core Pornography: A Proposal far a Per Se Rule,'221 U. Micjz. J. L.
Re5255 ((n9a";lllf;"ss).
30- Nadine Strossen, Befetldi~~g Pomogmphy: Free SyeecIt, Sex, mild the Fight:for
Wonren's R1glzt.s 161-1 78 (19%).
31. Karen Kaplan, "Grc~wthof Hate Sites,'Tos Azigeles Times, December 7, 1998,
C3 (reporting that according to the director of the Museum of Tolerance, the num-
ber of hate sites have increased from one in 19991 to more than 1,000 in 1998). As
~ p o r t e don National Pubtic Radio "Morning Edition," Mareh 6, 1998, a recent
study by the Southern Prwerty Law Center found 163 online hate groups.
Available on Westlaw at 1998 WL 3306607*A directory ctf hate speech sites can be
ft3und at http:/ /www,bcpl.libbmddus/~rfrankti/hittedir.htm/.
32, See Rqort to the Mi~zisteruflztsiiice offlte Special Cornmitt~ean Hate Prqngnt~drrt
in Gazaada 59 (1966).
33, See Frances D'souza, introductictn to Str-ikiitzg n Bala~zce:Hate Speech, Fretadorn
ufEx~?mssion nlzd Nun-Discrr'~zzi~~~1i11~il
vii (Sandra Coliver, ed., 1995).
34. in defending the hate speech ordinance in R.A.K v, Gihy of St. h u l , 505 U.S.
377 (19921, the city argued that the selective ban on racist fighting words was in-
tended to "communicate to minority groups that group hatred . . . is nctt cun-
doned by the major it^.'^

1. See k g i n a v, Butler, 619921 84 I3,L.R. (4th) 449,

2. See United States v. One Book Entitled Ulyssesr 72 E 2d 705 (2d Cir, 1934);
Besig v, United States, 208 E 2d 142 (9th Cir, 1953).
3. Striki~rgn Blala~zce:Hate Speecl~,Freedom of Expression ~~r~-Dr'scrz'mi~~nt:io
241-142 (Sandra Coliver, ed., 1991). Members of the racist group were aXso found
guilty of violating the law, but because they were also convicted ctf other crimes
they ended up receiving no supplernentai sentence for riiolation of the hate
speech law, In 1992 Denmark amended the law to immunize such reporting on
racist gn?ups.For Further discussion of this case, see Stephanine Farrior, 'WoXding
the Matrix: The Historical and Theoretical Foundations of International t a w
Concerning Hate Speech,'"1 Berkeley J. Xnbl. L. 1,6&69 (1996).
4. See Venkat Eswaran, "Advocacy of Naticmal, Racial and Religious Hatred:
The Indian Experience," in St1-iking n Balarzce, supra note 3 at 179.
5. See American Booksellers Assn., Inc. rr Hudnut, 771 F. 2d 323 (7th Cir. 2985).
6, See Skywalker Records, Inc. v, Navarro, 73W. Supp, 578 @.D. Fla. 1990),
.ITPZ?'~,Luke Records, Inc. v. Navarro, 960 E 2d 134 (11th Cir. 1992).
7. KirnberlP Crenshawr " B q o d Racism and Misomny: Black Feminism and 2
Live Crew," in Words Tjznd Mi'otdrzd 122, 124 (Mari Matriuda, Charles Lawrence,
Richard Delgado, and KirnberlP Crenshaw, eds., 1943).
8, See Joshua Schaffman, ""liegislation Against Radst Tncitement in Israel: A
1992 Appraisal," in Strikiiilzg a Balcztzce, supra note 3 at 142.
9. See Geoffrey Bindman, "Tncitement to Racial Hatred in the United Mingdctm:
Have We Got the Law We Need?" jn intrikirq a &lance, supra note 3 at 259.
10. Ibid. at 260.
12. See Joanna Oyediran, "The United Kjngdom" Compliance with Article 4 of
the International Convention on the Elimination of All Forms of Racial
Discrimination,""in Sfn'kiizg a Balance, supra note 3 at 251.
12. Ibid. at 252.
13, See Ixegina v, Meegstra, [l9901 3 SCR 697; Regina v, Andrews, [l9901 3 SCR
;Canada (Human Rights Commission) v, Taytor; 619901 3 SCR 892.
14. R. v. Hoagfin (1907), 12 C.C.C. 226 (N.W.T.S.C.); 1%.v. Carrier (19511, 104
C.C.C. '75 (Que, K.B.); R. v. Kirby (19"70)1 C.C.C. (2d) 286 (Que. C.A.).
15. R. v, Btrzzanga and Durocher, [197q 1 9C,C,C, (2d) 369. With the exception
4
of the case involving the disgruntled American, ail of these a>nvictionswere over-
turned on appeal. See John Manwaring, ""Legal Regulaticm of Hate Propaganda in
Canada," in infrikilfg a Balance, supra note 3 at 109.
16. ""Lnguage as Violence v, Freedom of Expression: Canadian and American
1X3erspectives ctn Group Uefamation,'337 B~lfl~Ta L. Rev, 337, 341 (1989) (comments
of Afan Barovoy).
17, See Sandra Coliver, ""Ha Speech taws: DC)They Work?" in infriki~zgn
Baln-lzce,supra note 3 at 365.
 18. See R.A.V. v, City ctf St. Paul, 505 U.S. 377 (1992); Coilin v, Smith, 578 E 2d
1147(7th Cir. 1378).
19. Catherine Itzin, "%sislating Against Pornography Withctut CensorsKp," in
IJllrrzograpf2y 40840VC. k i n , ed., 1992).
20, Catherine Itzin, "'A Legal Definition ctf Pornctgraphy," in inonzograpl~y,supra
note 19 at 452.
21. 11992189 U.L.R. (4th) 499.
22. See Nadine Strossen, Dqfefzdin~bnzography: Free Speech, Sex, and flte Fightfor
WonzcnS Rights 229-244 (1W55).
23. It is true that in Canada and Germany Holocaust deniers have been crimi-
nally prosecuted without any attempt tc:, apply the reIevmt laws to serious acade-
mic works. But it is structurally ensured prosecutoriai restraint rather than any-
thing in the brc~adlyworded substantive prc~visionsof these laws that is prc3bably
responsible far this Xack ctf abuse, Zn contrast, the broad prohibition on the spread-
ing of false statements, pursuant to which Canada recently convicted a notorious
Holocaust denier (see Regina v, Zundel, [l9871 35 D.L.R. (4th) 338, ctr the prohibi-
tion on ""attackson human digniq," which Germany uses to prosecute Holocaust
deniers (see Rainer P-iofmam, ""Tncitemcnt to National and Racial Hatred: The
Legal Situation In Germany" in Sfrikf'tqa IfSalal~ce,supra note 3 at 162-180), would
positively invite abuse in the hands of local prosecutors in the tln;ited States. The
problem of Hofocaust denial could, however, be addressed by a specifk prohibi-
tion of this calumy, such as the 1990 French law that expressly makes denial of
the Nazi genocide against the Jews a crime, But such a law would Xeave the rest ctf
the universe of racist pxudoscienee and pseudohistor~lruntouched.
24. See Bindman, supra note 9 at 258,2Ci0-262.
25. See Coliver, supra note 17 at 347.
26. See McClesky v. Kemp, 481 U.S. 274 (1987).
27. Cf*Richard Delgado and Jean Stefancic, Must We Defend Nazis? 101 (19917)
("The likelihood that officials in the United States would turn hate-r;peech laws
into weapons against minorities s e e m remote"") M c ~ consistent
e with the deeper
radical critique, Matsuda seeks to avoid the problem by limiting the reach of the
law to hate speech directed at a member of a "historicaiiy oppressed group." Marari
Matsuda, " h u b c Response to Racist Speech: Considering the t"ictimfs Stcltry," in
WO& T'ltat Wound 36 (Mari Matsuda, Charles Lawreme, Richard DeXgado, and
KlmberXP Crenshaw eds., 1993). Aside from the problem of determining what
qualifies as an Kstorically oppressed group, this qualification would make enact-
ment of Matsuda" proposal unlikely in most communities.
28. "Flfere is no agreement or feminist cc3de as to what images are distasteful
ctr even sexist." Statement of Feminists for Free Expression, quctted in Nat
P-ientc>f-E,""Pomography War Among Feminists," Wmnshgtotolz Post, April 4, 1442,
A23.
29. Strossen, supra note 22, beween pp. 140 and 161.
30, bid. at 158-159, quoting Andrea Dworkin, Ice nrjd Fire (1987).
31. See Albert Nerenberg, "Fear Not, Brave Canadian: Customs Stands on
Guard for Thee," Montreal Gazette, January 22,1993.
32. I-he key terms of the clbscenity standard currently in force in the United
States-"appeal to the prurient interest," "patently offensive'' "depictions of sex-
ual activity, and lacking ""erious literary, artistic, political or scientific valueu--
also are quite vague. What makes this standard workable is the Court" insis-
tence that the material must cctnsist of extremely graphic description ctf "ultimate
sexual acts." Thus it is possible for prc~secutors,judges, and juries to have a tem-
plate ctf the forbidden material in mind fa film graphically shc)wing people hav-
ing sextrat intercourse), And even if it crtntains some hard-core depictions, mate-
rial is still not legally obscene if "'taken as a whole" it does not "appeal to the
prurient interest" h sex or has "serious Xiterary artistic, political ctr scientific
value." "Although it takes a certain degree of subjectivity tc:, decide whether mate-
rial is explicit enough to quali* as obscene, this is hard science compared to de-
termining whether a depiction is "demeaning" or ""dehumanizing" or "subordi-
na ling.'"
33. See Roger Errera, "hDefense of Civility: Racial Incitement and Group Libel
in French Law," in infriking n Bnlntlce, supra note 3 at 355,
34. Bind man, supra note 9 at 259.
35, See Natirtnaf Socialist Party v. Skokie, 432 U.S. 43 (1977); Collin v, Smith, 578
F. 2d 1197 (7th Cir. 19%).
36, See Gerald Gunther and Kathteen Sullivan, Co?zstitutivncalLnzv 1113 (13th ed.,
2 997).
37. See Philadelphia Newspapers, Inc. v. Hepps, 475 U S . 767 (1986).
38, See, e.g., Sye~zkingFreely: The Case 4aiitzst Syeedt Codes v (Mark Holzer, ed,,
14941, dedicating the bctok tc:, a number of defendants in important free speech
cases, including Jctseph Beauharnais, the racist convicted of group libel in
Beatlhamais rr Tllinois, 343 U.S. 250 (1952), discussed in Chapter 4.
39, Strossen, supra note 22 at 161-168.
$0. KathIeen SulSivan, "The First Amendment Wars" "eview of several books),
New Republic, Septelmber 28,1492, 35,
$1. Quoted in Strossen, supra note 22 at 262.
42, See Gordcln Allport, Nntzdre @Prejudice 467473 (1954).
43, See Strossen, supra note 22 at 260-261 (I"a95) ("""there may well be an inverse
causal relationship between exposure tc:, sexually explicit materials and misogy-
nistic violence or discrimination").
$4. See Chapter 7:text accc>mpanyingnotes 13 to 14, and the Appendix.
45, For imtance, in criticizing Stitanfordk hate speech code, fctrmer assistant sec-
retary of state and presidential candidate Atan Keyes charged that it was ""isuXt-
ing" to be tclfd that ""white folks have the moral character tc:, shrug off insults and
1 do not." Quoted in Nadine Strossen, ""Regtrtating Racist Speech on Campus: A
Modest Proposal?" 191940 Duke L. 1,4812,486.
46. See Nan Hunter and Sylvia taw, Brief A~niciC~irineof Fet~tE'ni~t Alzti-
Gensomhip Gskforce, in American Booksellers Assn. v. Hudnut, reprinted in 21 U.
Mid!. J. L. Re5 69, 322 (1988) (laws suppressing pornography ctn the grounds that
it is demeaning tr3 women "reinforce and perpetuate central sexist stereotypes;
they weaken, rather than enhance, women" struggles to free it-remselves ctf ar-
chaic notions elf gender roles").
47. Matsuda" proposal is a rare example of a law that bans only hate speech
against mincjrities. See note 27 above.
48, Cotiver, supra note 17 at 368.
 1. Texas v. Johnson, 491 U.S, 397 (1989) (Rehquist, C, J., dissenting).
2. See, e.g., Stantey Fish, TfjereS No Sucl~Ttzi~~gas Free Speecl.~.102 (19912).
3. Thus, even though he favors bans on racist propaganda, Fiss acknowledges
that hate speech is part of public discourse, See Owen Fiss, The Irolly 0fFrc.e Speedl
14 (1996).
4. Debs v. United States, 249 U.S. 211 (1949).
5. See, e.g., Masxs Publishing Co. v. Patten, 246 Fed. 24 (2d Cir, 1917) (speech is
not protected by the First Amendment if "the natural and reasonable effect of what
is said is to encourage resistance tt3 a law, and the wtlrds are used in an endeavor to
persuade to resistance"). Indeed, the clea~and-present-dangertest in the fniurtd
f n r 1 era was supposed to supply greater protectit2n to speech than the harmful-
t-endency standard. See Gerald Cunther and KathXeen SulXivan, Constitzrtiouznl Law
1035,1044 (13th ed., 1997).As applied, however, especially during the red scare of
the 3 9 2 0 ~the
~ clear-and-present-danger test was tantamount to a harmful-ten-
dency test.
6. Cf. MingsXey TnternalionaX Pictures Corp. v, Regents, 360 U.S, 684 (1959) (in-
rialidating a state motion picture licensing law banning films that portrayed ""acts
of sexual immorality . . . [or] which expressly or impliedfy presentfed] such acts
as desirable, acceptable, clr proper patterns cif behavi c~r'').
7'. Fiss, supra note 3 at 14.
8. See, e.g., Catharine MacKinnon, Or-zEy Wads 76 (1993); Jean Stefancic and
Richard Delgaderr, ""A Shifting Balance: Freedom of Expression and Hate Speech
X%estrictictn,"78 10'1uaL. Rez:. 737,742 (1"393).
9. See also Henry Hyde and George Fishman, "The Collegiate Speech Protec-
tion Act of 1991: A Response to the New Tntolerance in the Academy," 37 Wayne L.
Rev. 1469,1489 (2991).
10. Planned Parenthocld v. Casey, 505 U.S. 833 (1992). For further discussion of
the distinction between slippery slopes and dangerously broad principles, see
James Weimtein, ""An American" View of the Canadian Hate Speech Decisionsr"
in Free Exlyression: Essays in LZW and Pfzz'ltsoyhy20%209 (W j.Nluchow, ed,, 1934).
11. Fiss, supra note 3 at 21,
12. bid.
13. CF. Ibid. at I4 (""Pornography is . . . most certainly part of the discourse by
which the public understands itself and the world it confronts. A s i d l a r point can
be made about hate speech.").
14. ibid. at 21. Fiss3 claim that hate speech silences though ""dirninsh[ing] vic-
tims\ense of worth" and pornography does so by making women "feel as
though they have nothing to ccmtribute to public discussions" "bid. at 16) would
also seem to implicate the persuasive power of public discourse.
15. In Chapter 7 I discuss whether hate speech and pornography do in fact si-
lence minorities and women,
16. Later in this chapter T address the substantial c~bjectionthat whatever might
be said about hate speech, pornography is neither part of the expression by which
we govern clurselves nor a contributor to the marketplace of ideas.
17. United States v. Schwimmer, 279 U.S. 644 (1929) (Holmes, J,, dissenting).
 18. See, e.g., MacKinnon, supra note El at 75-77,",.
19. Fiss, supra note 3 at 11. Similarly, MacKinnon criticizes the Supreme Court
far its ""studied inability [in its free speech decisions] "r tell the difference between
oppressor," W& as the Ku KIux Klan, whose speech promotes inequality, and
"%oppressed," such as civil rights leaders, whose speech furthers equality. Such
"piously evenhanded treatment" that "passes for principled neutrality'3s to
MacKinnon entirely inappropriate in ""a country that is supposedly not constitu-
tionally neutral on the subject." MacKinnon, supra note 8 at 86.
20. Fiss, supra note 3 at 37.
21. Cass Sunstein, Detnocrgcy afaB flte Pmblenr qfFree Speech 216217 (1993). These
harms are discussed in Chapter 7.
22, Ibid.
23. Those who argue for a ban on pornography based on the h a r m in produc-
tion frequently invoke New York v, Ferber, 458 C5.S. 747 (1982). Ferber upheld a
ban on the distribution of "child pornography" that is, films or photographs de-
picting children actually engaged in sex acts. The Court emphasized that the dis-
tribution of such material i s "intrinsicalty related to the sexual abuse of children"
and found that ""the distribution network for child pornography must be closed if
the production of material which requires the sexual exploitation of children is to
be effectively controlled." krbe); however, does not supply a helpful analrsgy for
it-re suppression of pornography made with adult actors and models. By defini-
tion, every production of child pornography entails harm-exual expluihtion of
a minor. The same cannot be said of pornctgraphy production that involves
adults. Thus Sunstein concedes that ""most women wht) participate [in the making
ctf pornography] are not so abused." Cass Sunstein, "Wcjrds,Conduct, Caste,'%O
U. 61.ri.L. Rev, 1795,899-81 0 (1993).
24. Cf. Food Licm, Inc. v, Capital ClitiesiABC, Inc., 484 F. Supp, 423 (M.D.N. Car.
2997) (television nework reporters held liable for fraud and trespass in connec-
tion with investigative report on supermarket chain).
25, Cf. MacKinnon, supra note El at 39 (""Ptting the pornographers in the pos-
ture of the excluded underdog, like communists, plays on the deep free speech
tradition against laws that restrict criticizing the government. Need it be said,
women are nut the gc~vernment?").
26. See, e.g., Andrea Dworkin, Ponlugrapt~y:Metz Pctssessi~zgWomen 55 (1979)
(""Violence is male; the male is the penis. . . . What the penis can do it must do
ft3rcibly ft3r a man to be a man"") Catharine MacKinnon, i'ozmrd a Feminist Tlzeotyj
qf the Sieafe 238 (1989) ("[Wjhat men want is: women bound, women battered,
women tortured, women humiliated, women degraded . . . women killed").
27, Masses Publishing Co. v. Patten, 244 Fed, 535 (S.B.N.U. 1917).
28. See Chapter 2, text accompanying notes 15 to 14,
29.403 U.S. 15 (1971); 491 U.S. 397 (1989).
30. See John Stuart Mill, On Liberty alzd Otlzer Essays 60-64 (John G r a ~ ed.,
1991).
31. ""As T would not be a slave, so I would not be a master. This expresses my
idea of democracy. Whatever differs from this, to the extent of the difference, is no
democracy.'Qbraham Lincoln, quoted in Lincoln on Democracy 222 (Mariio
Cuomo, ed., 1991).
 32, Gitlfow v, New \ulork, 268 U.S. 652 (1925) (Holmes, J., dissenting).
33. It could be objected that in agreeing tc:, a ccmstitution that specifies certain
rights, the majority has agreed in advance to limit its power but has not agreed to
limit its power to institute a new form of government This objection seems to go
tct the Iegitirnacy ctf stopping a majority from instituting a nondemocratic govern-
ment, not to its consistency with liberat theory
The conclusion that it is consistent with democracy to prevent the majority
from eradicating democracy does not depend on the view that the deepest value
of a liberal democracy is the assurance of equal concern and respect, If the new
regime would suppress speech critical of it or its policies, preventing it from tak-
ing power would promote the interest in assuring that the government respect
each individual" rational capacities. Even on a libertarian view focusing on the
prc~tectinnof individual autonomy, it would be consistent tc:, stop the majcjrity
from instituting a regime in which all liberties, including the right to property and
the right to be let alone, would exist only at the fcjrbearance OF the dictator:
34, In affirming the convictions of high-ranking members ctf the American
Commtmist Party for advocating the overthmw of the United States in violation
of the Smith Act, Justice Frankfurter acknowledged that ""pbbtic interest is not
wanting in granting freedom to speak their minds even to those who adriocate the
overthrow of the Government by force-. For, as the evidence- in this case abun-
dantly iitllustrates, coupled with such advocacy is criticism of defects in our soci-
ety." Dennis v. United States, 3341 U.S. 484 (1951) (Frankfurter, J,, concurring).
35. "These arguments do not undermine the premise that it is nctt inconsistent
with liberal democracy actually to stop the institution of a totalitarian regime,
Liberalism may be at once sufficiently skepticaf to envision the possibiUty that its
basic premises are wrong and therefore allow democracy to be challenged in the
realm of ideas and at the same time sufficiently sure of itself that it will prevent
the actual institution of an antidemocratic regime even if the majoriv wants such
a change.
36, Aside frctrn the pclssibility of actual misappXication ctf this raticlnafe to
speech that is not in fact antidemocratic, the very existence of such a principle for
stripping speech of constitutional prot-ection will chill radical critique. As Justice
Frankfurter wrote in affirming the convictions of high-ranking communists for
advocating overthrow ctf the U.S. government: ""Suppressing advocates of over-
throw inevitably will also silence critics who do not advocate overthrow but fear
that their criticism may be so construed. 1t is self-delusion tc:, think that we can
punish [these defendants] for their advocacy without adding to the risks run by
loyal citizem who honestly believe in some of the reft>rm these defendants ad-
vance. . . . [Zlt is a sobering fact that insustaining the convictions before us we can
hardly escape restriction on the interchange of ideas." Dennis v. United States, 341
U.S, 494 (1951) (Frankfurter, I., concurring).
37. "[I]n s u p p ~ s s i n gto"t"lta"ian movements a democratic socieq is not acting
tct protect the status quo, but the very same interests which freedom ctf speech it-
seXf seeks to secure-the possibility of peacelui progress under freedom. . . .
fO]ne type of constitutional change in the constitutic-jnalsystem is excluded-a
change that would endanger its democratic character." Car1 Auerbach, "The
Communist Control Act of 1954: A Proposed Legal-Political Theory of Free
Speech,/T23U. Ghi. L. Rev. 173,188,104 (1956).
38. Sunstein, supra note 23 at 795,797,807-808, Sunstein makes essentially the
same argument in Dc~?zocrncy~ supra note 21 at 15. There is, unfc>rtmately,a sstud-
ied vagueness aabaut just what "hrms of pornography" "nstein thinks lie suffi-
ciently "far from the center of First Amendment concern'" that they should be
deemed Xctw-value speech. It is clear, however, that he means to include much
mure than the hard-core material suppressible as obscene under current doctrine.
39. Sunstein suggests that even nonviolent pomtlgraphy contributes to the in-
equatity of women "through its place in the sexual subordination or clbjectifiea-
tion of wclmen," He restricts his diwussion to violent pomtlgraphy, however, bclth
because such mat-erial is in his view ""an especially important ingredient in sexual
inequali2-y" and because any broader regulation would raise "ssome trickier First
Amendment difficulties." Denzocr~cy~ supra note 21 at 212-213,
40. Bid. at 125,452.
41, bid. at 158,
42. Ibid. at 135.
43. ibid. at 152-153.
44. Ibid. at 150.
45, ibid. at 155.
46. Ibid. at 158. Thus Sunstein would fc~rbidgovernment to regulate any expres-
sion based on "(1) its own disagreement with the ideas that have been expressed,
(2) its perception of the governxnrsnt" ((asopposed tct the public") self-kterest, (3)
its fear that people will be perwaded or influenced by ideas, and (4) its desire to
ensure that people are not ctffended by the ideas that speech contains," %id.at 155,
47. See Sunstein, "Wrds," mpra note 23 at 807, See also P)ernucmc~/,supra note
21 at 215.
48. And as discussed in Chapter 2, when there is reason for suspiciun, such as
where the conspiracy or threat is of a political nature or where the private libel is
ctn a matter rtf public concern, rigorous First Amendment protection is applicable
tt3 "smoke out" such illegitimate governmental purpose.
49, See Marci Hamilton, ""Art Speech," 49 49g~id.L. Rev, 73,97--101 (1996).
50. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)
(uphctlding ban ctn posting signs ctn utility poles on the aesthetic grounds of
avoiding ""visual clutter").
51, in the 1950s the White Citizens Comcils condemed rock h' rstl as "sexual-
istic, unrnuraljstic and [as] bringling1 people of both races together." See Tony
Scherman, ""Lttle Richard" Big Noise," "gay 56 (supplement to 46 Anzeuican
Herz'tagaagazirre, FebruarylMarch 2995). See also tinda Martin and Kerry
Segrave, Anti-Rock: The 8pyositiun do Rock ?lz3~oll(1985),
Sunstein claim that there is no reason tct be more suspicious that government
is acting far some ilZegitimate reason when it regulates '%nonpolitical" art and lit-
erature than when it regulat-es ""anything else." Dmmocracy7supra note 21 at 135.
He points out, for instance, that "[mlany fc~rmsof regulation are attempts to stop
marketplace competitican, lavored by self-interested groups and operating at the
expense of the public at large." But even on the dubious assumption that the typi-
cal ecrtnctmic regulation is as likely tct be illegitimately motivated as is the typical
attempt to suppress nondeliberative art or literature, Sunstein" argument is be-
side the point. Whatever their evil, illegitimate economic regulations do nctt usu-
ally threaten basic free speech values. There are, moreaver, several reasons that
U.S. courts rnctre vigilantly guard against illegitimate speech regulation than
against illegitimate ea,nomic legistation. For one, the Constitution expressly lim-
its the government's power tct regulate speech but contains no analogous provi-
sion for economic liberties. In addition, illegitimate speech regulations implicate
democracy in ways that illegitimately motivated economic regulations do not. See
generally, John Ely, L)ernucmc~/and Distrust (1980).
52. See note 46 above.
53, See, e.g., Paris Adult "Theatres Z v. Slatctn, 413 U.S. 49 (1973) ("The sum of ex-
perience . . . affords an ample basis for legislatures to conclude that a sensitive,
key relatictnship ctf human existence, central to family life, community welfare,
and the development of human personality can be debased and distrtrted by crass
commercial exploitation ctf sex"") As this quotation shows, bans on ctbscenity al-
lowed under current dodrine also raise suspicions that such bans are motivated
by impermissibfe cmcerns. This recognition, however, would seem to argue
against, not for, expansion of the category of wxually explicit speech that may be
banned ccmsistent with the First Amendment.
54, bid. at 220.
55. it should also be noted that current drrrctrine tries tc3 mitigate any ccxt associ-
ated with the ctverprutection ctf pornctgraphy by allowing sexually explicit but
nonobscene speech to be regulated in ways that other speech in highly protected
media may not, As discussed in Chapter 4, theaters and bookstores specializing in
sexually explicit but nonobscene materials may be subject to special zoning regu-
lations; the sale to minors of even soft-core pornographic magazines such as
Playboy may be clutlawed; and over-the-air broadcasters may be forbidden from
airing sexually explicit material at times when children are likely to be in the au-
dience, In the same vein, the U.S. Court of Appeals in 1997 upheld a ban ctf the
sale of sexuafIy explicit material on military bases. See General Media
Communications, Inc. v, Cohen, 131 E 3d 273 (2nd Cir: 1997).

1. Owen Fiss, The Xravzy of Fret?Speect~4 (1996).

2. As discussed in the Appendix, note 136, there is evidence that counterspeech
may not be an effective means of preventing the negative attitudes toward
women that certain fr~rrrtsof pornography may produce. Thus government pro-
paganda in this area might be better aimed at persuading men not to use this
pornography in the first place.
3, Mari Matsuda, ""Pttbc ksponse to Racist Speech," in Words T!$nt Wound 50
(Mari Matsuda, Charles Lawrence, Richard Delgadct, and MirnberlP Crenshaw,
eds., 1993).
4. See Chapter 2, text accompanying note 36.
 1. See Henry Hyde and George F i s h a n , "The Collegiate Speech Protection Act
of 1491: A Response tc? the Mew Intolerance in the Academy" 37' Wayae L, Rev,
1469,1473(1991).
2. See James Weinstein, ""A Constitutional Roadmap to the Regulation of
Campus Hate Speech,'"3 8 a y . t L. ~ ~Rev, 163,242 n, 223 (1931) (documenting this
and other misrepresentations by Hyde and Fishman).
3. See Richard Uefgado, "Tampus Antiracism Rules: Constitutirtnal Narratives
in Collision," 85 NW. L. Rev. 343,3517 (1 091).

1. See Attorney Generays Cornmissitln on Pornography, Final Report, July 1986'

part 2 at 326 (hereafter;:"l486 Reportf').
2. Barry L p n , Polfuting the Ck~rzsorshipDeblake: A Smmmnry c a r d Critiqzie oftlie Final
Ryort clf tlae Attor~zcyGeneral%Cornmissr'on o~zPortzograyhy (ACLCI public poticy re-
port, 1986) at 70 (hereafter, ""ACLU Critiquerr).
3. Uiana Eussell, "Pornctgraphy and Rape: A Causal Mrtdel,'" Political
Psycholt?gy 42, 71 (1988); Ronald b o r k i n , "The Coming Battles over Free
Speech," Nezv Yo& Review of Books, June 11,1992.
4. Report of llze Cornmission on Qbscenity mzd F70mogmpfiy (1970) at 286287.
5.1986 Report, supra note 1 at 323.
6. Tbid. at 324.
7, Ibid, at 323,
8. Ibid. at 1402.
4. Ibid. at 1402-1403,
10. bid. at 1404.
12. %id. at 331.
12. bid. at 334-335.
13. ibid. at 331-332.
14. Ibid. at 335.
15. Ibid. at 326.
16. ibid. at 324,
17. Curiously, althctugh in reaching its cctnclusions the commission retied ex-
tensively on studies such as Dc2merstein%,the chapter that reparts findings about
harm (chapter 5 of part 2) sedul<t:,usiyavoids citations to individual studies,
Frederick Schauer, the author of this chapter; later explained that the exclusion of
specific citatictns was a comprvrnise to avoid references to particular studies that
he fcjund "methodc>logicallydubious.'"ee Frederick Schauer, ""Causation Theosy
and Causes of Sexual Violence," Am.B, Fou~zd,Xes. 1,B7,"i"f; 4.58 (1987).The var-
ious studies the a>mmissionused are summarized and analyzed in a separate sec-
tion, chapter 3 of part 4 of the report, entitled "Social and Behavioral Science
Ixesearch Analysis."
18- 1986 Report, supra note 1 at 483-984, See also Edward Donnerstein, Daniel
Linz, and Steven Penrod, The Qzrestio~z";1(Por~mgr~plzy 94 (1987).
19. 1986 Report, supra note 1 at 984.
 20, bid. at 325.
21, Ibid. at 326,
22. bid. at 313.
23. Ibid. at 317.
24. bid.
25. Ibid. at 326-327.
26. Ibid. at 981. The repclrt inaccurately implies that thase exposed to violent
pornography expressed a greater willingness to engage in rape if they knew they
would not be caught than those exposed to the nonviolent version, In fact, there
was no difference in the responses of the two groups. See Neit MaXamuth, %ott
P-iaber, and Seymour Feskrbach, "Testing Hypotheses Regarding Rape: Exposure
to Sexual Violence, Sex Differences and the WormaXily' of Rapists," M 1. of
Research 2'12 Persolznlify 121-137 (1480). See also Dcmnerstein, Linz, and Penrcld,
supra note 18 at 101.
27. Cf. Neil Nalarntrth and Edward Donnerstein, I>onlc~grayhyand Sexual
Aggres"o~ 33 (1984), describing films as portraying "sexual aggression and sug-
gest that such aggression may have po"tive consequences."
28.1986 Report, supra note 1at 983.
29, Ibid. at 327'.
30. Ibid.
31, bid. at 987. The report" description of the results of the experiment is not
entirely accurate, The study found that subjects exposed to the stasher films
""showed a tendency to be Xess sympathetic to the victim of rape portrayed in the
trial [and] were less able to empathize with rape victims in general when corn-
pared to the no-exposure control group." Contrary to an early experiment by
Linz, Donnerstein, and Fenrod, howevel; ""noeffects were observed for judg-
ments of injury." Nor did exposure to the f i l m "affect the other objectification, en-
dorsement: of Poree, and posttrial measures." See Daniel Linz, Edward
Donnerstein, and Steven Penrod, "Effects of Long-Term Exposure tt3 Violent and
Sexually Degrading Depictions of Women," 55 J. of Persa~nlity(5;" Soc. Psycltol, 758
(1988). The authors hypothesize that because in this experiment the rntlck jurors
were presented with a picture of the injured victim, whereas in it-re previous ex-
periment they were not, '"little doubt [was left] that the victim was harmed," thus
"kwash[ing]ctut'2he effects of the prior film. Ibid. at 766. As discussed later in the
Appendix, this experiment also intiestigated the effects of highly explicit ""degrad-
ing" prnography and found that this stimulus did not produce the attitudinal ef-
fects reported in previous experiments.
32. 1986 Report, supra note 1at 328, Far this conclusian, the ct3mmission appar-
ently relied on studies such as the 1980 experiment by Malamut.h, Heirn, and
Feschbach. See 1986 Report at 481.
33, bid. at 328 (emphasis in the original).
34. 'Ibid. at 329.
35, bid. at 333-334.
36. Ibid.
37. Ibid. at 332.
38. Ibid. at 1001.
39. Ibid. at 1002.
 40. bid. The commission also discussed a 1985 study by S e m in which femafe
subjects were exposed to ""erotica" "(described as "mutualfy pleasurable sexual ex-
pression belween two individuals presented as equal in power"), "nonviolent de-
humanizing pornography" "(described as ""having no explicit violence but por-
traying acts of [female] submissictn'", and explicitly violent pornography. The
commission reported that in this study "[blclth violent and nonviolent [degrad-
ing] pornography resulted in greater anxiety, depression and anger than erotica
and both were also reliably differentiated from the latter on a number of affectitae
d i m s i t m s f with 'eroticakonsistently rated more positively." "Lb. at 1002-1W3.
$1. Ibid. at 333.
42, ibid. at 334,
43, bid. at 334.
44, ibid. at 337,
45, bid. at 330.
$6. %id. at 9917. "%X callousness" was measured by agreement with such state-
ments as ""A woman doesn" mean "no' until she slaps you." %e Donnerstein,
Linz, and Fenrod, supra note 18 at 75-76.
47,1986 Report, supra note 1at 1006, W8.
$8. Ibid. at 330 n, 46. See also 1QO&1007,
49, Ibid. at 338-347.
50. Ibid. at 37%".
51. Ibid.
52, bid. at 380.
53. %id. See also 354-358.
54, bid. at 366.
55. Ibid. at 403.
56. ibid. at 361,
57. Ibid. at 362-363. The cornmission reached the following condusions about
harm to the performers in pomtlgraphic film: ""(1) that [the perfc>r:ormers]are nor-
mally yomg, previously abused, and financially strapped; (2) that on the job they
find expfc3itive economic arrangements, extremely poor working ccmditions, seri-
ctus health hazards, strong temptatirtns to drug use, and little chance of career ad-
vancement; and (3)that in their personal lives they will often suffer substantial in-
juries tct relationships, reputation and self-image," "id. at 888.
58. ACLU Critique, slrpra note 2.
59, ibid. at 2,
60. Ibid. at 3.
61. ibid. at 5-41,
62, bid. at 14.
63. ibid. at 7.
64, bid. at 68.
65. Ibid. at 69. See also $142.
66, Ibid. at 70.
67..Ibid. at 8-5-87,
68. ibid. at 70.
69, 'Ibid. at 73-72
7'0- ibid. at 73.
 71. bid. at 83.
72.Ibid. at 88.
73. Daniel Goleman, "%esearchers Dispute Pornctgraphy Report ctn Its Use ctf
Data," "RI. Tittzes, May 17, 1986,81.
74. Daniel Linz, Steve Penrod, and Edward Bonnerstein, "The Attorney
General's Commission on Pornography: The Gaps BeWeen TFindingsband Facts,"
1987Am, B, Fou~zd,Res, f., 713,713.
75. Ibid. at "721.
76. ibid. at 722,
77. Ibid. at "714.
7%. ibid. at 723-725.
79. See Neit Malamuth, ""Pornography's Trnpact ctn Male Adolescents,'"
Adokescel.~CMedicine: State of thc Art Xevier~jls563, 56&571 (19%). Malamuth notes,
however, that primarily becaua of differing ideological predispositions, there is a
"lack of a broad-based conxnsus among rexarchers about the effects of pornogra-
phy" and that even this t-entative conclmion is "not shared by all researchers." "id.
at 566. Nonetheless, with respect to agression and sexual cattuusness caused by vi-
olence presented in a sexual (although not necessarily pornngrapEc) context, the
findings have been remarkably consistent. Far example, a recent experiment esxn-
tially replicated the findings of the 1981 study by Malarnuth and Check, See, e.g.,
Monica Weisz and Cktristopher Earls, '""TheEfkcts of Exposure to Filmed Violence
and Attitudes Towards Rape," 101. efIntc~~?ers.sorzal Violence 73 (1095).Be one outlier
is a study by Fisher and Grenier, wKch found that violent pornography ""had no ef-
fect on aBitrzdes towards women, acceptance of women as managers, acceptance of
interpersonal violence, or rape myth acceptance.'Tee Wllliam Fisher and Azy
Barak, "Pornography Erotica, and khavior: More Questions Than Answers," 14
Intl".1. 01Law t;" Psyc/liatry 65,7(; (1991), describing what was then an mpublished
study of a 3987' experiment. The study was not published until 1994. See Wiltiarn
Fisl~erand Guy Grenier, "Violent Pornography, Antiwoman Thoughts, and
Antiwornan Acts: In Search of Ikliable Efkts,'91 J. of Sex IZesearcjz 23 (1994). As is
suggested by the lengthy delay in publication, there were sc3me serious prc3blem
with this study. See Neil Malarnuth, "Sxually Violent Media, Tf'houghtPatterns and
Antisocial Behavior," h in Pzlltlic Ct~mng.ti;.Belznvior 359,184185 (1989).
80, See 3986 lqeport, supra note 3 at 983 (discussing 1981 experiment by
Nalamuth and Check and their effc~rtsto deal with the experimenter demand ef-
fect).
84. Linz et al., supra note 17.4 at 714.
82. See 1986 Report at 1007-1021 (addressing "the problem of the ability to gen-
eralize the results outside the laboratory," among other methodological prob-
lems).
83. Obvious ethical constraints prevent scientists from exposing subjects to
po~mograghyand then seeing i f they commit acts of wxuaI vioience against women
in the real warfd. Indeed, xient;ists who conducted wperiments that produced ag-
gressive behavior in the laboratory or changed attitudes were careful to debrief
their subjects after the experiments in order to reduce the chances of a real-world
spillover effect. See, e.g., 1986 Report, supra note 1 at 988; Paul Pollard,
"Ptxnography and Sexual Aggression," Current Psychology 210-211 (Fall 1995).
These same consideraGons prevent iabctratory experiments testing for long-krm ef-
fects of exposure to pornography. For a recent study suggesting that the negative at-
titude changes c a u ~ by d violent pornography may be short-term only, see Charles
Mullin and Daniel Linz, ""Desemitkaticsn and Resmsitizatim to Violence Agaimt
VVumen: Effects of Expctsme to Sexually Violent Films on Judgments of Domestic
Violence Victims,;,"69 J. ofPersanali& l3 Soctnl PsycJral. 449 (subjeds tested three days
after exposure to slasher films exhibited less sympathy for v i c ~ m of domestic vio-
lence and found the victims to be less injured tl-ran did those in the no-exposure
group; those tested five and seven days after exposure, however, were indistin-
guishable From tl-re no-exposure group). For an articfe suggesting how aggession
produced in laboratory experiments can infc3rm us about the causes of real-world
violence, see Brad Bushman and Craig Anderson, "Methodcctlogy in it-re Study of
Aggressictn: Integrating Experimental and Ncjnexperirnental Findings," in Hi-nun
~ O F Z :Rfiearc-eh nzzd lirnplieatiouzs for Soclizl i")QIicy(Russet1 Green and
A ~ ~ I " I " S STjiteoric~,
Edward Donrrerstein, eds., 2998).
84.3986 Report, supra note 3 at 325326.
85. Other data might include a?rretat-ionatdata. For a recent review of this data,
see Rrslbert Bauserman, ""Sexual Aggression and Pornography: A Review of
Correlational Research,'' 2 X Basic & Ap~~lir;ld Social Psychol. 405 (1996).
86. Schauer, supra note 17 at 7 6 7 6 5 .
87, bid. at 766-767,
88. See ibid. at 737.
89. Xbid. at 763.
90.. 1986 Report, supra note 1 at 329*
91. Other than the reference to Schauer % sctmission of the modifier ""srongly" in
his quotation of the report, my discussion of the discrepancy between the report
and Scfiauer" article is not meant as a criticism of Schauer. In drafting the report,
Schauer was in the unenviable position of tr)ring to produce a consensus state-
ment of eleven individuals, many of whtlm had very different views about
pornography.
92. As reported by Malamuth, a recent study showed that "for the population
as a whole, information about pornography usage did not add a great deal of pre-
dictive value" &about whether men in the study were likely to be sexually aggres-
sive, But ""significant predictive value" was found ""for those men who had earlier
been identified as at highest risk Poor committing sexual aggression." Mailamuth,
"Pornography's Impact," supra note 79 at 570. Although cause and effect cannot
be inferred from this correlational study, it is interesting to note that it is consis-
tent with earlier experimental research, from which cause and effect can be in-
ferred, showing that "men xoring relatively high in pretest measures of risk char-
acteristics (e.g., self-reported attraction t~:,sexual aggression) showed the most
pronounced effects of exposure to sexualy victfent and highly degrading pornog-
raphy." "jd. at 571.
93. Malamuth believes that the available data are consistent with some ""iter-
active models" mggesting that certain types of pornography may in combination
with severat other risk factars, contribute to sexual aggressic2n in the real world.
Such models take into consideration factors such as (1)the content of the message
portrayed by the pornography ea., "an eroticized rape depiction with a positive
ctutcorne as contrasted to an equally sexually explicit depiction shctwing
mutually-consenting sex"; (2) the characteristics of the audience, e.g., "a man with
high 'hostile mascuiinikyktr attraction tct sexual aggression as contrasted with a
man who has particularly egalitarian feelings and attitudes towards wtlmen"; and
(3)it-re context of the exposure, e.g., "a social climate encouraging aggression and
dixrimination against women riersus a social climate emphasizing gender equal-
ity and respect for women" rights." Correspcjndence with author, December
1998. See also Malamuth, ""Pornography% Impact on Male Adolescents,'" supra
note 7"1t 569 ("one of the problems in the literature has been the use of oversim-
plistic models, including the lack of sufficient consideration of the role of individ-
ual and cultural differences as moderators of media influences"") Neil Malamuth
and Eldad Malamuth, ""integrating Multiple Levels of Scientific Analysis and the
Confluence Model of Sexual Coercers," 3 ]luvirnetrics 517 (1999).
94,1986 Report, supra note 3 at 1406.
95. joseph Scott and Steven CuveI-ier, "Violence in Playboy Magazine: A
Longitudinal Analysis," 16 Adfizles ";1( S~xuaIBeimztl'or 279 (1987). See also Fisher
and Barak, supra note 79 at 170-71 (19%).
46. ACLU Critique, supra note 2 at 4142,69. Similarly a 1985 study of 430 sex-
ually explicit magazjnes found that 1.$ percent of the a>ntentdepicted violence or
domination, See Cl-tarles Winick, ""A Content Analysis of Sexually Explicit
Magazines Sold in Adult Bookstores," 2l f. of Sex R e e n d 206 (1985). This is con-
sistent with a study by the Canadian government that found that 1.2 percent of
the phatctgraphs and 3,7 percent of the text in eleven ctf the top-tjt;llling sex maga-
zines depicted force or violence. See Committee on Sexual Offense Against
Children and Youths, Rqort of the Goramittee 012 Sexual Oflenses Against Childreti
and Vo~tths(19%). In contrast, a 1988 study sampling X-rated videos found that al-
though only 6 percent of the explicit sex scenes involved rape, 51 percent of the
riidetls portrayed at least one rape and most sexually explicit scenes portrayed
male dominance. Gloria Cowan, Carol Lee, Daniella Levy, and Debra Snyder,
""1~orninance and Inequality in X-Rated Videocassettes," l2 Psychol. cif Wonzefz
Quarterly 299 (1488).
97. See Marcia Pallfy, Sex a d Sensibility 32-33 (1994). Tn respctnse to the
Malamuth and Spinner study showing a high level of violence in the magazine,
it-re editor of Pl~ybo:!informed Mafamuth that he would issue a directive "request-
ing that the [Pl~yboyjstaff attend to and screen out violent images and messagesat'
See Daniel Linz, Edward Donnerstein, and Steven Penrod, " f i e Findings and
Recommendations of the Attorney General" C~ommissionon Pornography: Do
the Psychological Facts Fit the Political Fury?" 42 42~nzcricat~
Psychologist 946,948 n.
1 (1987).
98. Schauer, supra note 17 at 740 n. 13.
93. Park Dietz and Alan Sears, ""Pornography and Obscenity Sold in "Adult
Bookstores? A Survey of 5132. Books, Magazines, and Films in Four American
Cities," 3 21. Mich. f. L. R$ 7 (1988).
100. Ibid. at 24,3&--39.
101, Cf. Dietz and Sears, supra note 99 at 13 ("Of the 105 works examined inter-
nally after the cover imagery had been classified, all but two contained imagev
that was more sexually explicit or deviant than the ct?verfr).
 102. Ni Yang and Daniel Linz, "movie Ratings and the Content of Adult Videos:
The Sex-Violence Ratio," 40 j. of Comnz. 28,34 (1990).
103. Ibid. at 33.
104. Joseph Slade, "Violence in the Hard-Core Pclrnographic Film: A Historical
Survey," 34 /. I;1( Comnz. 148,158-159,162 (113%).
105. ibid. at 159-161.
106. Ibid. at 161.
107. Ibid. at 155. (It is not clear whether the numbers Slade cites refer to films or
scenes invtlltring graphic sex,)
108. Donald Smith, ""?-he Social Content of Pornugraphy," 26 1. f:f Cornnr. 16
(1976).
109, For instance, the available research suggests that victlent pornography
showing women "ultimately deriving physical pleasure" is far more Likely to fos-
ter aggressive attitudes in male viewers than equally violent depictions showing
victims "abhorring the experience." See NalamutXci, ""T)rnagraphyrs impactt''
supra note 79 at 56k-567.
120. Eric %hlosser, "The Business CIF Pornography" ".S. News afaB FVorltj R~yort,
February 10, 1997'. The inclusitln of "sexual devices" within pornography statis-
tics is curious, far such fare would seem to be a distinct a>mmodityPerhaps they
are included because they are commonly sold in outlets for pornographic mater-
ial .
111, When the Attorney General's Commission on Pornography reported in
1986, it fctund that Americans spent $2 billion a year on hard-core pornographic
films displayed in '"eep sht~w"booths (1984 Report, supra note 2 at 14717);that 23
percent ctf videos cctnsumed by the public were ""adult" (ibid. at 1388); that over
I0 million issues of mainstream soft-core pornographic magazines were sold each
month (ibid. at 1411); and that thousands of m w titles of pornographic paperback
novels were produced each year (ibid. at 2451). In 1994 the Will Street Jounznl re-
ported that nearly half a billion pomographic videotapes were rented or sold each
year. See J o h Wilke, ""Prn Broker: A Publicly Held Firm Turns X-Rat-ed Videos
into a Hot Business," Wall Stret josrrttfnl, July 11,1994, Al.
112. See Meil Munro, "Torn Comes in One Color: Green,'Watz'orrail fcturlzal,
January 9,2999.
113,1986Report; supra note 1at 331.
124. Wendy McElroy XXX: A Wonmtz's Right to F70mogmplty 135-136 (1995).
115. Pally, supra note "I) laat 27 (citing T. Ferraro, ""Playboy Redux and Christie
Hefner," UPX, November 23, !%G),
116. See ACtU Critique, supra note 2 at 71-72, dixusshg how the final report did
not contain examples of "'ddegrading'katerial that had appeared in earlier drafts,
apparently becauw of ""Ft)lnefailure of the Comnrissioners ta agree cm the contenb of
this . . . cat-egory.'Walarnuth believes that "WQtelheating what is degrading or dehu-
manizing may be feasible, [although] considemble "ray' areas where differentiation
is not reliable will probably remain." Malamuth, "brnngraphy's Impact," mpra
note 79 at 572. MaEamuth cites a 1990 study by Senn and Rladtke in which five
Canadian undergra duate women were asked tc:, clategorke variom mteriaf taken
from P i ~ y b qPentho~fse~
~ and Htistler magazines and two books a s "erc~tica,""'"nonvi-
olent pornography," or "vic?lclnt pornography" The students agreed on about 75
percent of the stimuli but disagreed considerably on about 25 percent. ""E&ica'kwlls
defined as ""iages that have as their fc3cw the depicgon of mutually pleasmable
sexual expressirtn bebeen people who have enough power tct be there by pctsitive
choice [and that] have no sexist or violent comotations and pclrtray equal power dy-
namics individually as well as bemeen the model(s) and the carneralphcttogra-
pher." "'"RTonviofentpomugraphy" was defined as "images that have nu explicitly
violent content but may imply acts of submission ctr violence by the positioning of
the models or the use of pn:,ps. They may also imply unequal power relationships
by differential dress, c o s t m h g , positii>ning,or by stting up the viewer as voyeur,"
(Matamuth explains that this category is '"imilar to that labeled as degrading or de-
humanizing by other re~archers."")'"Violentpornography" was defined as "images
it-rat portray explicit violence of varying degrees perpekated agaimt one individual
by another," See Charlene %mand Lorraine Radtke, "Wctmen%Evaluatiom of and
Affective Reactions to Mainstream Violent 13amography, Nonvioltent Pornography
and Ert~tiea,"WSoZence l3 Victims 143,144 (4990).
With all due respect to Malarnuth, 75 percent agreement by five female under-
graduates (who, for all we know from the experiment, share similar backgrounds)
would not seem tc3 be persuadve evidence that it is possible tt3 achieve consemus
about what sexually explicit material is ""clmeaning." "For a more recent attempt
tt3 distinguish degrading from nondegrading sxually explicit material involving
hiventy-six undergraduates, see Laura Jansma, Daniel Linz, Anthany Mulac, and
Dorothy Imrich, "Men" Interaction with Wctmen After Viewing ficlrxually Explicit
Films: Does Degradatictn Make a Difference?" 64 Communicatiozzs Monogmphs 3
(Marclh 19917).As X emphasize in the text, however, what would seem most impor-
tant with respect to identifying any harmful effects of pornography is not whether
subjects can agree on what is demeaning but identifying certain material that al-
though not explicit1y violent nclnetheless produces effects similar to violent
pornography I-he study by Jansma et al. reports that "kkt date, no study has sim-
ilarIy attempted tc:, define objectively and distinguish c?tperationally sexually ex-
plicit degmdilzg pornography from sexually explicit, lnutz-degrading stimulus mater-
ial to allow valid cilrnparisons between these categories and others." "3. at 5.
117.3986 Report; supra note 3 at 332-334.
128. Ibid. at 100ci--IOU;7.
119, b i d .
120. The report discussed a 1985 study by %nn that similarly differentiated
among ""erotica," """nonviolentdehumanizing pornography," and ""violentpomog-
raphy." Both the violent and dehumanizing pornography p~dclucedgreater de-
pressic~n,anxiety, and anger in the subjects-all of whom were women-than did
the erotica. See 1986 Ixeport, supra note 1at 3002-1 003.
121, Ibid. at 1002,
122. Ibid. at 1006. See 330 and n. 46.
123. Linz et al., supra note 74 at "723.
124. Ibid. at 723 n, 20,Linz subsequently published an article based ctn this dis-
sertation. See Linz, Donnerstein, and Penrod, sup" note 31. K r a a a k findings
have just recently been published. See Carol Krafka, Daniel Linz, Edward
Donnerstein, and Steven Penrod, ""Ml;r,men%Reactions tc:, Sexually Aggressive
Mass Media Depictions," WJolence Agfii~stWt~nzc.t~ 149 (1492). The Linz study
f c ~ m dthat exposure to degrading pornography did not increase "'rape myth ac-
ceptance, belief in women as sexual objects, endorement of force in sexual rela-
tions, !or] conservative sex rutes.'"or when the subjects were tested after being
shown what was presented tc:, them as a drrrcumentary for law school use was
there any effect ctn "%ssessmentsof the victim, defendant, verdict ctr sentence."
Linz et al., supra note 31 at "76-"767. Krafia's study revealed similar results far fe-
male subjects. See Bornerstein, Linz, and Penrod, supra note 18 at 79-80. As dis-
cussed above in the text aca?mpanyingnote 31, both studies did, however, reveat
attitude changes from R-rated slasher films.
125. Dunnerstein, Linz, and Penrod, supra note I 8 at 80. In addition, it is not at
all clear that either study prospectively identified the sexually explicit material as
degrading tct women, Rather, like most of the other studies cited as evidence ctf
the effects of demeaning pornography it seems to have designated the stimulus
material in this way retrospectively. Nor is it in fact clear that the films were in fact
demeaning trt wornen. Thus the study describes the films (Debbie Does Dallas,
Health Syn, The Other Side I;1(Jgilie,Xndecezit Exyostirc., and Faritasy) as "not overtly vi-
olent but . . . sexually expiicit and arguably depictling] women as sexually de-
graded objects." Linz, Penrc~d,and Domerstein, supra note 74 at 759 (emphasis
added). According to the intiestigators, however, the sexually explicit scenes in
these films were similar tt3 those used in Check" study Donnerstein et al., supra
note 18 at 79,
126. Indeed, a 19992 study reports that several recent experiments failed ta show
that demeaning pornctgraphy causes sex callousness or aggressive behavictr to-
ward wornen in the laboratory See Jansrna et al., supra note 116 at 1-2. This study
did, however, find that demeaning pctmugraphy might have other negative con-
sequences. The study fcjund that ""sex-Vped" men (i.e., those who scored high on
stereotypical masculine traits and low on stereotypical feminine traits acccrrrding
to the Bern Sex Role Inventory) exposed to demeaning pornography were more
likely to evaluate women with whom they interacted sh~rrrtlythereafter as Less in-
tellectually capable, as compared to sex-typed men exposed to a nondegrading
sexually explicit film or a film not containing sexual content. Ibid. at 17,As to non-
sex-typed men, the study found that neither type of sexually explicit film was
more likely to cause subjects to rate women as less intelIectuafXy capable than the
nomexual film,
127.1986 Report, supra note 1 at 334-335,331-332.
128. Dietz and Sears, supra note W.
129. Ibid. at 30 and n. 52.
130, Ibid. at 30. Despite the recent feminist attack on pornography as demeaning
tct wornen, Bietz and Sea= du not offer a classification based on a f e ~ n i sperspec-
t
tive. Ratlwu; they assume that "leading feminist thinkers on this topic" would "on
independent grounds" arrive ""at shndards ctf degradation or humiliation that car-
respond clio~lyto the standards of traditionalists." "Despite seemingly prt?fot_md
differences in ctther attitudes," the authars explain, "'both the traditionalists and
these feminists agree that the commercialized expioitation of people as sex c3bjects is
degmadiing and hmiliating," "id. at 30 n. 53, Obviclusly, the feminists that Dietz
and Sears have in mind are radical feminists such as MacKinnan and Andrea
Dworkin rather than liberal feminists, whose views on this subject are likely ta dif-
fer sharply from both the traditionalists and radical f e m i ~ s t sSee, , e.g., Nadine
Strc~ssen,Defc~zdilzgPornogmphy (1995); Nan EIunter and Sylvia Law, Brief Anzici
Curhe of Femi~istA~ti-Ce~zsnmllip Taskfirc-ee, in American Booksellers Assn, v,
Mudnut, reprinted in 21 U. Mich, I. Law Re$ 69 (1988). In addition, there may not be
as much ctverfap as Dietz and Sears suppose behiveen conservative and radical fem-
inist views a>ncerningwhat wxually explicit material is degrading. For instance,
conservatives would likely find degrading the examples ctf Andrea h a r k i n " ssexu-
ally explicit dexriptions quoted in Chapter C-;, text accompanying note 30.
131, Dietz and Sears, supra note W at 32.
132. Ibid. at 32-33.
133. The commission% categclry included in addition to materials depicting
degradation and h u ~ l i a t i o nthose that portrayed domination and subordinatirtn.
Dietz and Sears" study. however, does not include material that depicts domina-
tion and subordination because the data cotlected were not coded to record such
content. Ibid. at 30 n. 51.
1,s. See 1986 Report, supra note 1 at 1006,
135. In this regard it is interesting to note that a study commissioned by the
Canadian Department of Justice concluded that "there is no persuasive evidence
that the viewing of pornography . . . causes the arierage adult to harm others."3ee
Wc2rking Papers on Pornography and Prostitutionf Report 13 (19M).Sirrrilarly the
ittee "uhesitathgly rejectred] the suggestion that the available sta-
tistical infc3maGon for England and Wales lends any support to the argument that
pornography acts as a sGmulus to the c o m ~ s s i o n of sexual violence.'WOtiswziity a~id
Film Gmssrshlzy 80 (Bernard Williarns, eed., 1980).
136. Linz et at., supra note 74 at 73G731. Malarnuth notes that such a comter-
speech strategy may not be effective because "recent ==arch indicates that once
developed, attitudes such as beliefs in rape myths may be difficult to change. In
fact, some people who already hold such beliefs to a relatively high degree may
evidence- boomerang effects; that is attempts tc:, change negative attitudes may
have the oppctsite effect ctf strengthening them." Mdamuth, "Ipornctgraphyrs
Impact on Male Adolescents," msupra note 79 at 523,
137. Linz, Penrod, and Donnerstein, supra note 74 at 721.
138.1986 Report, supra note 1 at 215.
139, Edward Bannerstein, Leonard Berkowitz, and Banief Linz, "Rote of
Aggressive and Sexual Images in Violent Pornography" manuscript discussed in
Donnerstein, Linz, and Penrc~d,supra note 18 at 110. See also Linz, Pernod, and
Donnerstein, supra note 74 at 1720, describing the results of this experiment. The
authors do, however, also cite a 192'4 study by Berkowitz that showed that sub-
jects who viewed a violence-ctnly film exhibited more "'callous rape attitudes" and
reported greater '"iikelihood of raping or using force" "an subjects who viewed
films that combined sex and violence, Ibid.
140. Malamuth, "Pornography" Impact on Male Adolescents,',"" supra note 79 at
571.
141. Donnerstein, I,inz, and Penrod, supra note 18 at 212.
142. lbid.
143. Vang and Linz, supra note 202 at 34.
144. Linz, Penrexi, and Damerstein, supra note 74 at 721,
 145. Ibid.
146,1986 Report, supra note 1 at 32&--324.indeed, the commission acknowl-
edges that it is "unclear whether sexually violent mat-eriaf makes a substantially
greater causal contribution to sexual vicllence itself than does material containing
violence atone." "ibid. at 328.
147. See, e.g., the experiment by Donnergein described in the text accompany-
ing notes 17 to 19 above,
148.1986 Report, supra note 1 at 363.
148. There is, however, the following incomistency in the repart: At one place
the a>mmissionsuggests that legally obscene, sexually violent material may be
more harmful than less sexually graphic material becaus such material presents
its message "mdiluted by any appeal to the intellect," bid. at 362. Tn another part
of the report, however, the cc3mmission notes that graphically violent but not par-
ticularly sexually explicit slasher films are mare harmful than most hard-core vio-
lent pornography. Ibid. at 32&329.
150, Edward Donnerstein and Daniel Linz, ""Sexual Violence in the Media: A
Mrilming," "-15 Psychol~gyToda!!, January 2984.
151. Edward Donrzerstrin, ""Erotica and Human Aggression," in Aggression:
TIzec~mt&l and Entpz'rz'cal Revierus 127,151 (Rusw11 Green and Edward Donnerstein,
eds., 1983).
152. ACLU Critique, supra note 2 at 75.
153. Ibid. at 87.
154.1986 Ixeport, supra note 1at 1000,
155. ACLU Critique, supra note 2 at 38,
156. Ibid. at 90 (emphasis added).
157. Such tendentiousness jn assessing the harms of pornogrvhy is not limited
tc:, the cclmmission, free speech organizations, and scientists. In arguing f ~ the
r
constitutional protection of pornograph~philosopher Ronald h o r k i n refers to
the 1970 report as a '"restigictus"" study that denies that such a causal link exists
and to the ""infamaus'W~d~eeCommission as finding such a link. "Wc3men. and
Pornography," New York Xeaieru of Books, October 21,1993.
158, Edward Mulvey and JefSrey Haugaard, Report of fhe Surgeon Geuzer~f's
Worklzup on F7Unaogm~1hymzd I"~t171icHealth 34-35 (Office of the Surgeon General,
U.S. Public Health Service, 1986).
This page intentionally left blank
Abolition movemen t, 104-106,
243(n33)
Abortion
advertisements, 28,223Cn56)
and antiabortion speech, 240(n66)
and FACE, 100,22&227(nn 31-32)
proksts, 39, 226(n30)
Abram, Jacob, 18-19
A b r a m v, United States, 19
ACLU. See American Civil Liberties
Union
Actual purpose, 225(n9)
Adarand Constructclrs, Inc. v, R n a ,
229(n6), 242(n14j
Addtrley v. Florida, 110
Advertisements
and abortion, 28,223Cn56)
bans ctn, 8485,23&239(n52)
See also Commercial advertising
Advocacy ctf illegal actik~ity,18-21,
169-1 17a, 223Cn36)
and Warren Court, 23-24
Alberts rr CaEifomia, 2241n59)
American Booksellers Assn. v.
Hudnut, 59,223(n29), 234(n32),
234(n34), 251(n46)
American Civil Liberties Union
(ACLU), 88,122, 237,24Q(n66)
and Attorney General's
Commission on Pornc~graphy
191, 2 99-2Q2,2Q3,288,216-217,
263(n116)
h l l u t ing f he Censurslzip Debate, 2 99
American Communist Party, 16,22,
152,223(n41), 254Cn34)
American Nazi Party, 53,97
Arnerica1.z "lrngedy (Dreiser), 29
htisefectivity principle, 231(nll),
233(n27), 235(n48)
Anti-Semitism, 245
Antitrust laws, 43,
48
h t i w a r protest
and Vietnam War, 23-2425
and World War i,16-17
Art
homoerotic, 29,150
and totalitarian gc~vernments,
221(n117)
Attorney General" Commission ctn
Pornograph~2 35,248(n26)
and ACLU, l % , 199-202,203, 20Bt
216-21 7,2&3(n116)
conclusians of, l % , 192-199,
257(n17), 258(n26), 259(n57),
263(nlll), 267(n146)
criticism ctf, 139-217, 267(n149)
Austin, J. L., How to Do TIzilfgs willz
Words, 237-238(n37 j
Autonomy theory 15-16,221 (n13)
Barenblatt v, United States, 136
Barker, Sarah Ertans, 54
Barnes, Robin, 112
Beauharnais, Ji?seph, 57
Beauharnais v, Illinois, 56-59,
233(n2&)
Bell Curve, The, 148
Bern Sex Role Inventory, 265(n12&)
Bentham, Jeremy, 2
Berkowitz, Leonard, 266fn139)
Bethel School District No, 403 v.
Fraser, 2361~9)
Bigelow v. Virginia, 223(n56)
Bill of Rights, 17,222(n34), 239Cn56)
"Birth of a Baby" 29
Birt-12 ofa Nafz'nuz, 95
Black, H ugo, 223(n40), 24(n43j,
244(n51)
Blackmun, Harry, and R.A.V,, 176
Blakcly v. Cclntinental Airlines, Inc.,
235(n39)
Bkeak House (Dickens), 378
"Bob Uylank 1215th Bream," 119
Bond, Julian, 23
Bond v, Floyd, 223(n41)
Books, pornographic, 206207. Slue also
tltlder spec$c t idles
Boos rr Barry, 226(n16)
Bouie v. City of Columbia, 110
Bowers v. Hardwick, 221(1113)
Braden v, United States, 245(n64)
Bradley Josegh, 3
Brandeis, Louis D., 4
and A b r a m dissent, 19
and advocacy of illegal activity; 21,
223Cn36)
Brandenburg rr Ohio, 24-25,35,57,
223(n45), 224(n63), 241(n"i"5)
and hate speech bans, 54-55,
231-232(nn11-12)
Brennan, Wifliarn, 90, 321-122,
238(n51), 2M(n5l), 246fn78),
246(n80)
and defamation eases, 27
and NAACP v. Button, 113
and ctbsceniv laws, 28
and secondary effects, 38
Bribery, 62
Broadcast media, and content
regulation, 230(n70)
Brooks, Avery, 96
Brown, H. ""Rap," 10103
Brown v. Board of Education, 2,212,
113, 321,129,244(n36)
Brown v. Louisiana, 244(n51)
Brown v, Oklahoma, 223(n51j
Bryant v. Zirnmerman, 114,115,
245fn65)
Buckley v. Valeor 98-99
Burger, Warren, 121, 233Cn30)
Burns v. McGregur Electronic
fndustries, Xnc., 234(n39)
Burson v, Freeman, 227(n37),
240-241 (~67")
Burton, tavar, 96
Bush, George, 155
Byrd, James, Jr., 102
Cable TV, 99-100
Calleros, Charles, 120
Cameron v. Johnson, 226(nn 31-32),
244(n49)
Campaign financing, 98-99
Campbell v, Acuff-Rose Music, Inc.,
23ti(n8)
Canada
hate speech bans in, 52-53
hate speech in, 142,145,147
and Holocaust denial, 250(n23)
and pornography regulation, M,
349
pornography studies in, 196,285,
262(n96), 263-2M(n116),
266fn135)
Canadian Department of Justice,
266(n135)
Carr v, Allistln Gas Turbine Division,
General Motors Corp.,
234(n39)
Categorical exclusion, 29-30
Central Hudson Gas v. Public Sex~ice
Commission, 22103-224(n57)
Chaplinsky v. New Hampshire, 26-25?,
28,57-58,76,223(n52)
Check study, 394,196,202,210,
213
Cheefer v, Renct, 226(n32)
Christian Coalition, 101
City ctf Ladue v, Gilleo, 227(n43)
Civil Rights Act (19M), 1013
Title VII, 62-64,102, 2M-235(nn
38-39)
Civil rights taws, 5
Civil rights movement, 4 06-3 17
and mass media, 111-112,245(n52)
and NAACP, 132-117
protestors, 107-108
Clark, K, B., 129
Ctear and present danger test, 27-23,
25,26,34--35,92,222(1n21),
252(n5)
Cleaver, EIQridge, 103
Cohen v. Califc~rnia,36-37,
171
Colleges, and hate speech cctdes, 52,
43-64,189-190,251 (n45)
Collin, Frank, 151
Collin v. Smith, 233fn22)
Columbia Broadcasting Systems, Inc.
v. Democratic Naiti<>nal
Committee, 242(n13)
Commerciai advertising
regulation, 70-71
Sec atso Advertisements
Commercial speech, 28,223-224(m
57-58), 225fn5)
Commtml"cationsDecency Act (1g%),
61,2346~34-35)
Commtmist Party 22, 213,
2451n69)
Compelling interest requirement, and
hate speech bans, 55,232(n14),
232(n16)
Conduct
defhition of, 32
e x p ~ s s i v and
e nonexpressive,
33-34
Congress, and abolition movement,
105
Congress of Racial Equality (CORE),
107
Connick v. Myers, 229fn61)
Conspiracy, 70
Content-based regulations, 35-38, Sec
also Content discrimination
Content discrimination
and government employee speech,
4142:
and government-subsidid speech,
42,228(n53)
and public forum doctrine, 41
regulaticms, 354%231(n76)
and Scalia, Antonin, 227(n,%)
and speech in medium essntiat tc3
public dixcturse, 4647,23O(m
'70-71 )
and speech in settings essential to
public diwceotrrse, 45-48,229(nn
6849), 230(m 71-72), 231(1174)
and speech on matters of public
concern, 4&45,229(m 42-63),
229(n65)
and tort liability, 4243,229(n58)
Content-neutral reguiatiom, 3538. Sec
also Content discrimination
Content regulation, 230(n72)
and the media, 46-47', 23U(nn';70-71)
and print media, 230Cn70)
and the workplace, 234 fn74),
231(n"76)
See also Content discrimination
Copyright taws, 43,4849,70,
71-72:
CORE. See Congress of Racial Equality
Cosby Slzn;lo, The, 96
Counterspeech, government, 285-3 86,
256In2)
Counterspeech strategy, 214,
266(n136)
Cowan, Gloria, 262(n96)
Cox, B. Ettcm, 107-108
Cox v, Louisiana, 107-108,109,130
Crenshaw KirnberitP, 3
CY.imsouz Tide, 96, 144
Crocodile Dundecf 95
Cross burning, 56,232(n14), See also
R.A.V, v. City CIF St. Paul
Cuvetier, Steven, 205
Damsel in distress stereotype, 94-95?
241(n4)
Danish National "Television,
143
Dafing Garne, 162
Day Doris, 97
Death penalty, 148,186
Debs, Eugene, 18,19,222(nn 2425)
Debs v. United States, 118
Deep Space Nifze, 96
Defamation, 26,2'i",62,223(n52),
2301nQ4))
group, 132-133,167-168
Degrading material
definition of, 192, 193
Sec also Degrading pornography
Degrading pornography harm of;
assessing, 208-21 4
Delgado, Richard, 3,69-73,95-96, 97,
112,122,190,242(n18), 246(n83),
250(n27)
on free speech and abolition
movement, l0klOrls
on free speech and civil rights, 106,
2431n36)
Delph rr Dr- Pepper Bclttljng Co. of
Paragould, Inc., 234(n38)
Demeaning pornography ddenition
of, 209
Democracy, 12
and free speech, 172-276,253(n31),
254(nn 33-37)
Democratic National Committee,
2421n13)
Democratic self-governance, 12
Denmark, hate speech in, 142,143
Dennis v. United States, 22, 254(n34),
254(n36)
Dickens, Charles, BEplak Ho~ise~ 178
Dietz, Park, 206,209
Dietz and Evam study 205,206
Dietz and Sears study 2116,207,268,
211-213,262(n101),
265-266(n3 30), 2&6(nl33)
Direct incitement test, 20, 22, 222(n29)
DisclosureJ 96
Discrimination
and hate speech and pornography,
131-132
pmhibited, 64
root cause of, 155-156
Disney films, 97
Diver, Colin, 122-123
Bonnerstein, Edward, 193,201-203,
210,221 4-21 5,21 R, 25'7(n17),
258(n31), 265(n125)
Douglas, William, 25, 223(n40),
223(n49), 241(n75), 244(n51)
and clear and present danger test,
92
Draft resistance, 17-18,23-24,
225(nS)
Breiser, "Teodctre, Amerim~zEagedy,
29
Buchamp, Marcel, Fountain, The,
22&225(nl)
Dun & Bradstreet, Inc. v. Greemclss
Builders, Xnc., 229(n63)
Dworkin, Andrea, 59,103, 134,168,
253(n2G), 265266(n130)
and MacKimon-Dwtlrkin model
antipornography ctrdinance,
81-85,142,14&,14;7,149,153
h o r k i n , Ronald, 84,93, 187, 191,
238(n49), 267(nl 57)
theory of speech protecticm, 15-16,
221-222(n 19)
Easterbrook, Frank, 59-QQ,83,231(n5),
233-234(nn 31-32), 234(n34)
Edwards v, South Carolina, 107, 109
E E m . See Equal Employment
Opportunity Commission
Ellison v. Brady; 2234Cn39)
Emcltionaf pain, and hate speech bans,
56
Equal Emplrsymcnt Opportunity
Commission (EEQC)
and hostile work; environment,
234(n39)
and prohibited discrimination, 64
Equality rights, and hate speech and
pornography; 88-92,23(3(nn
53-56)
Erotica, definition of, 2&4(nl16)
Esyionage A d
amendments (1918), 18-19
cases, l&21,25
Evers, Charles, 25
Expression, definition of, 31-32,
22422S(n1)
Expressive cclnduct, 33-34
FACE. See Freedom of Access to C1inic
Entrance
h i f e n , 96
Falwell, Jerry?56
Farrakhan, I,ouis, 103, 134, 148
FCC v. Pacifica Foundizticm, 220(n11),
230fn70), 234(n36)
Federal Election Campaign Act (19"i"4),
98
Feiner rr New York, 107,109
Feshbach, Symour, 194
Fighting words, 26-27, 62,73-74,
223(n51), 225(n2)
racist, 52,174
Films, 44-97. S ~ also P Media
Films, pornctgraphic, 206207. See also
tinder spec9fictitles
First National Bank of Boston v,
Belloti, 221(n12)
Fish, Stanley 90-92
Fisher and Grenier studyt 22CiO(n79)
Fiss, Owen, 74,133-135,162-163,
164-1 65,185,248(n20), 252fn3),
252(n14)
Flag desecratic?n,90,108-109,121,
225(n7), 232(&0), 244(n43),
246(n7&)
Food and Drug Administration,
228Cn53)
Food Lion, Inc. rr Capital CitieslABC,
Inc., 2531n24)
Fortas, Abe, 223(n45), 244(n43),
244(n51)
44 tiquctrmart, Tnc. v, I&ode Island,
232fn117)
Founfiain, Tffe (Buchamp), 224-225(n1)
Four-part test, commercial speech, 18,
223-2244 (n57)
Fourteenth Amendment, 8 6 8 8
Duet Process Clause, 21, 86,
222(n34), 240(n65)
Equal Protecticln Clause, 2, 4, 69,
85-88,90,99,109, 122,219(n3),
239(n56), 245(n72)
France
hate speech in, 142,15&151
and Holocaust denial, 2501n23)
Frankfurter, Fetix, 13,220(n9),
254(n34), 254(n36)
and clear and present danger test,
22-23
and group libel laws, 57
Freedrrrm of Access tc:, Clinic Entrance
(FACE), 100,22&227(nn 31-32)
Freeman, Morgan, 46
Free speech, and hate speech bans, 184
Free speech drrrctrine, 9-10
and abolition movement, 104-106,
243(n33)
and antidemocratic policies,
advocating, 172-1 76,253fn31),
254fnn 33-37)
and civil rights movement, 106-117
and democracy, 12
and economic inequity, 117-118
and equality ri+ts, 85-92,923-123
goal of, 31
and influential media, access to,
98-1 00
and the media, 94-98,241fn8)
and neutrality claims, 1-6
and noninstrumentat, values, 13-16
polarized debate on, 189-190
protected and unprotected, 32-33
and racial and gender stereotyping,
93-98
and recognized rights, 100-1 Q1
and regulation, ,M49
and truth discovery 13
See al'su Expression
Frohwerk v. United States, 17: 19
Furhman, Mark, 102
Garner v. Louisiana, 109
Gender discrimination, 34,51,62. See
also EqualiQ rights
Gender equality 93-94,102,103
and stereotyping, 94-98
Georgia House of I;lepresentatives,
23
Germany
hale speech in, 142
and Holocaust denial, 25(1(n23)
Gertz v, Robert VVcrlch, Inc., 229(n(il),
233(n25)
Getazuay, The, 194
Gibson, Theodcrrre, 116
Gibson v. Florida Legislatikie
Investigation Committee, 116
Ginsberg v. New b r k , 234(n37)
Gitlow rr New Yc~rk,22,222(n34),
254(nJ2)
GoXdberg, Whoopi, 96
Gooding v. Wilson, 223(n51)
Government counterspeech, 185-186,
25ti(n2)
Government employee speech, and
a>ntentdiscrimination, 43-42
Government-subsidized speech,
228(n55)
Great Britain, hate speech in, 14-345,
148,155-156
Great Depression, 117
Gregory, Dick, 108
Gregory v. Chicago, 108,104
Griffin v. Maryland, 109-110
Griffith, D. W., 95
Group libel laws, 56-59,233(n27)
Gunthel; Gerald, 121,222(n29)
Haber, Scott, 194
Hand, Learned, 169,170
direct incitement test, 20,22,
222(n24)
Harding, Warren, 222(n25)
Harlan, John, 125,223Cn41)
and content-based regulatirtns, 37
Harris v. L & I, Wings, Inc., 234(n39)
Hate crime legislaticm, 52, 64-65,
235(n48)
Hate speech
and advocacy ctf illegal actikiity,
164-1 70
campus codes, 52,63-64,189-190,
251(1345)
as cause ctf illegal acts of
discrimination, 231-232,
l 60-1 62
and eiviili ty norms, 2 70-1 7'2
and ccmstitutional rights, 16b%165,
253(n19)
and eqtrali ty rights, 85-92,
239(nn 53-56)
and governmrsnt counterspeech,
185-18tif256(n2)
and group defamation, 132-133,
167-1 68
and harmful textdency rationale,
160-1 62,252(nl Q)
harm of, 127-135,160-162
and immutable characteristics,
166-1 67
and the Tnternet, 130,138,184,
247(n11), 248(n31)
possible benefits of, 154
and power to "ilence, 133-135,
162-163
and prtv&e vs. state action, 86-88,
240(n63)
prolit3cutions, 150-153
and protection discrimination,
69-74
and psychic injury, 12&129,162,
247(n8)
and racist and sexist beliefs?
promation of, 129-130
and R A V . decision, 74-78,
236(n18), 231;-237(n21), 237(nn
23-24)
safety valve theory, 154
and self-hatred, instilling, 129,
247(n8)
and slippery slope argument, 161,
252(n10)
Hate speech regulation, 51,52-59,
6145,218-123,225-226, 187-188f
246(nn 83-84)
avoiding misuse of, 147-148
and civil remedies, 143-144
and constitutional protection,
weakening of, 159-160
cost of, 141-1 47,150,156-157
and disproportionate impact on
minrtriq groups, 148
effectiveness of, 135-1 39
and free speech, 184
and group libeX laws, 5&59,
233(n23
misapplication of, 142-147
 and morality, 18&-187
and per se invalidity, 53-55
and publication of racist
organizations and ideas, 150--.153
and public discourse, 16&176
and racism, 483-1 84
selective application of, 344-147
and strict scrutiny, 55-56, 232Cn117)
symbolic value of, 154-156
and totalitarianism, 242-142
Helms, Jesse, 150
Hepbum, Katharine, 96
Herd instinct, 21
Hess v. Tndiana, 24-25
Holmes, OIiver Wendell, 4, 13,43,1173,
220(n7), 236(n16), 243(n35),
252(n17), 254(n32)
and A b r a m dissent, 1%2222(n24)
and advocacy of illegal activity 21
and clear and present danger test,
1'7-21,222(n21)
Holocaust denial, 147,15&151,
250(n23)
Homosextrali ty, 219,120,250,1178,
245(n72)
and hate speech ~gulation,24&14'7
H o u s Committee on Un-American
Activities, 245(n69)
Hor~rto Do Tlzi~zgswifli Words (Austin),
237-238(n37)
Hudson, Rock, 9'7
Hzrsiiller, 147,178,263(n116)
Hustler Magazine v. FalwelX, 56
Hyde, Henry, 389
"Hypocrisy of the United States, I-he,"
18
Illegal discriminatory acts, 54-56,
131-132, 360-162
Imrich, Dosothy, 225(n126)
Incitement, 24-25
Incitement test, and hate speech bans,
54,231 (n10)
India, hate speech in, 143
Indianapofis, antipornography
ordinance, 59-&1,82-84,122,
143-144,233-234(n32),
238(n52)
Individual autonomy right, 14-16;,
221Cnn 13-14)
Instrumental values, 13-16
Intematicmal Conventicm on the
Elimination ctf All Forms of
Racial Discrimination, 52
Internet, 300,23O(n70)
and hate speech, 230,13Ci, 184,
247(n11), 248Cn31)
and pornugraph~6Ir2Q8,234(n3';7)
Israel, hate speech in, 142,144,
155-156
Italy, hate speech in, 142
Itzin, Catherine, 146-147
Jackson, Robert, 76,236(n20)
Jansma, Laura, 265(n126)
Jeffries, Leonard, 103
Jeffries v. Ha rleston, 243(n29)
Jenkins v. Georgia, 233Cn32)
Joyce, James, Ulysses, 82, 342,178
Judicial-viewpoint diwrimination,
40
Kalven, Harry, 245(nQ5)
Keyes, Atan, 254 (n45)
King, Martin Luther, Jr., 27,101, 103
Kingsley Tnternational Pictures Corp.
v; Regents, 36,2521n2)
Kinsey Institute, 207
hafka, Carol, 210
Ku Klux Klan, 24,53,76,97,134
and -BrandenburgI57
Kunz v, New York, 236Cn20)
L ~ d yCfut terfe:jFsLozvr (Lawrence), 29,
36,83,231 (n8)
Landmark Communications, Inc. v.
Virginia, 220(n2)
Lawrence, Charles, 3,73-74, 86,
320--121,122,243-2M(n36)
I,awrence, D. H., Lady Glzafterlty's
love^; 29,36,83,23l(n8)
Lee, Carol, 262(n96)
Legal formalism, 1-2
Levy, Daniella, 262Cn96)
Lewis v, New Orleans, 223(n51),
236fn16)
Libel, 27,57--58,743, 71,223(n52)
Libel laws, group
and hate speech bans, 56-59,
233(n27)
Lfi, ""Birth of a IBabqi;" 29
Lincoln, Abraham, 173,2531n31)
Linrnark Associates, Tnc. v, Township
of Wilt ingbaro, 24&(n79)
Linz, Daniel, 195,197,201-203,210,
214-215,21&,258(n31), 261(nC-;3),
264-265(m 124-1 26)
Limz Kitzg, 'Thef 97
LifCle Mernrnid, The, 47
Love Gonrzcctio~~, 102
Lower-value speech, 33,2251nn 4 5 )
NacKinnon, Catharine, 59,7&--81,90,
47,103,122,132,134,137; 168,
17'Sr285,237(n33),237fn37),
238(nJI3), 239(n53), 247(n5),
248(n27), 253(n19), 253(n25),
265-26CiCn 130)
and MacKimon-Dwc3rkin model
antipornography ordinance,
81-85,342,143,346,147,149,353
and R.A.V., 77-78
and silencing argument, 135
NacKinnon-Dworkin model
antipornography ordinance,
81-85, 342,143,346,147,149,353
Magazines, pornographic, 205-20X See
also zrder spec$c titles
Nalamuth, PJeil, 194, 202,205, 210,
213,214,260(n79), 261(nn 92-93),
262(n97), 263-2Mfnll &),
2661n136)
Nalcolm X, 134
Malice requirement, 27,44,56,
223(n54), 229(n62), 233(n25),
233Cn27)
Mandela, Nelson, 145
Napplethorpe, Robert, 29,83, 150,
178
Marketplace of ideas, 13
Marshall, Thurgood, 4 7 93,121-122,
246(nB), 24&(n8O)
and secondary effects, 38
Martin v. Struthers, 228(n43)
Masses, The, 20,24
Masses Publishing Co. v, Patten, 20,
252(n5)
Mass media, and civil rights
movement, 211-11 2,245(n52)
Matsuda, Mari, 3, 52,70-73, 97, 332,
186, 236(n11), 239(n53), 246(n84),
250(n27)
and hate speech, harm of, 22&-.129
McCarthy era, 117,122,
176
McEtroy Wendy, 209,248(n26)
Media
access to influential, 98-100
and content regulation, 46-47',
230(nn 7'0-71)
and pornography, 79
and racial and gender stereotypes,
94-98,241 (n8)
Meese, Edwin, 392
Meese Commissitm, 192
Members of City Council v, "Taxpayers
for Vincent, 227-228(n43),
228(n48), 255(n50)
Meredith, farnes, 108
Metro Bmadcasting v, FCC, 242(nl4)
Miami Herald rr TorniXlo, 230(n7Q),
242(nlJ)
Mill, John Stuart, 4-5,154, 371,175
On Liberty, 113
Miller, Henry
nt7pic of"Cancel; 29,82, 142
T r q i c of Ca?l"icor~z,29, 142
Miller rr California, 29, 79-80, 198, 216,
234fn32)
Miltun, John, 4, 23
Minorities, 156
discrimination against; 386
and free speech dcsctrine
discridnation, 69-74
and hate speech regulation, 148
silencing of, 13&135
violence against, 131-132,186
See also Equality rights
Mississippi Blartzz'ng, C36
Moclse Lodge No, 10";"". h i s , 24O(n6O)
Morality, and hate speech and
pamgraphy bans, 186-187
Mosher study, 197
Motive, 225(n9)
Much Ado About Noflting, 96
Mulac, Anthony 2&5(n126)
Mullin, Charles, 261(n83)
Museum of -Tolerance, 248(n31)
NAACI): See National Association for
the Advancement of Colored
People
NAACP v. Alabama, 114-115
NAACP v. Button, 11,+114, 117
NAACP v. CXaiborne Hadware, 127
Narrow tailoring requirement, 3940,
227(n39)
and hate speech bans, 55,232(n16)
National Association far the
Advancement of Colored People
(NAACP), 25,112-117
National Endowment for Democracy,
42
Na tional Endowment for the Arts rr
Finley, 226(n19), 228{n51 j,
228(n53)
National Labor Relations Board
(NLRB), 238(n48)
National Organization for Wcjmen,
122
National Public Radio, 248(nJI)
National Rifle Association, 161
National %~cialistParty, 233(n22)
National Socialist Party v, Skr~kie,151,
233(n22)
Nazi Gemany 138
Me<)-Nazis,151
Netherlands, hate speech in, 142
New Deal, 117
New Vclrk Times, 27
New \ulork Times v, Sullivan, 27,44,56,
58,111-1212,117,121,223(n25),
223(n27), 229(n62), 245(nn 56-57)
New 'r'c~rkv. Ferber, 30,253(n23)
NLRB. Sec Naticmal tabor &fations
Board
NLRB v. Gissel Packing Co., 238Cn48)
Nonexpressive conduct, 33-34
Noninstrumental values? 13-16
Nonvictlent pornography, definitictn ctf,
264(nll 6)
Northern Scurities v. United States,
236(n16)
Obscene material, 2923
Obscenity, 2%29,62,224(n63)
Obscenity. dc>ctrIne,230(n71)
Obscenity laws, 26
Obscenity standard, 25&-251(n32)
OConnctr, Sandra Day, 233(n3Q)
and content discrimination, 39
and R.A.V., 76
Official secrets, 70
0 1 2 Liberty (Mill), 13
Osborne v. Ohio, 221(nl4)
Palestinians? 144
Papist v, University of Missouri
Curators, 230Cn70)
Paris Adult Theatre X v. Slaton,
246(nCrO), 25&(n53)
Penrod, Steven, 201-203,210,214-215,
25Sfn32), 265(n125)
Pea tt7gorz Papers case, 21
&nCitouse, 2 47, 193, 194, 2&3(n116)
205
Perjury, 62
Perry Education Assn, v, Perry Local
Educators%ssn., 228(n46)
Peterson v. Greentiilte, 209,110
Philadelphia Newspapers, Inc. v,
Hepps, 229(n63)
Philadelphia Socialist Party,
17'
Plagiarism, 70
Playboy, 178, 192-193, 199,205,209,
262(n4;7), 263(rt116)
Plessy v. Ferguson, 1, 102,219(n3),
243(n25)
Police Dept. of Chicagcl v. Mosley, 121,
22QCn10)
Pcllitical speech, 229(n65)
1DullzlCi??grfia Ce~zsorsEzipDebate (ACLU),
199
Popular culture, and racial and gender
stereotyping, %-g8
Pornography, 4647,51,59--61,
230(n71), 241(n8)
as cause ctf illegal acts of
discrimination, 131-1 32
child, 30,253Cn23)
and constitutiunal rights, 163-1 65,
253(n19)
degrading, 208-21 4
effects of, 202-211;7,263(n109)
and equality rights, 8592,239(nn
53-56)
and government counterspeech,
185-186,256Cn2)
and group defamation, 332-133
harm of, 130-135
and Indianapolis antipornography
ordinance, 59-61,82-84,122,
143-144,233-234(n32), 238(n52)
and it-re Internet, 61,208,234(n39)
and MacKimon-DworEn model
antipctmography ordinance,
81-85,142,143,346,2417,149
nonviolent, definition of, %@(nllli)
possibf e benefits of, 153-1 54
and power to silence, 133-1 35,
162-1 63
production of, harm in, 135,
165-166,253(n23)
safety valve theoryf 154
scientific studies of, 191-217,
26O(n83)
as speech act, 80,237(n37), 238(n39)
and subordination of women, 8&81
violent, 20%208,262( n96), 264(nll S)
and women, 7%85,80---81,148-2 50,
153,184-185,25O(n25)
Sec also Attorney General's
Commission c m Pornography
Pornography regulation, 61-65,78--81,
118-1 23,125-1 26,187-1 88,
246(n80)
avoiding misuse of, 141F-150
and civil remedies, 143-144
and constituticmal protection,
weakening of, 159-160
cctst ctf, 141-147, 156-157
effectiveness of, 2 35-3 39
misapplication of, 142-147
and morality, 18&187
and public discourse, 176-1 81,
25SCn55)
selective applicatis~nof, 244147
symbolic value of, 156156
and totalitarianism, 141-142
Post, Robert, 226-227(nJ2)
Powell, Lewis, 236(n10)
and lower-value speech, 225(n4)
President" Commission on
Pornography 191-142
Price fixing, 70
Print media, and content regulation,
46-47', 230(nn 70-71)
Private vs. state action, and hate
speech, 86-88,240(n63)
Property rights, 2 00-1 01
Protected speech, 32-33
Pruneyard Shctpphg Center v, Robins,
242(n17)
Psychic injury, and hale speech,
128-1 29,162,247(n8)
PsycItology Toda;y, "Sexual Violence in
the Media," 216
Public discourse
and hate speech regulation, 168-1176
and prlrnagraphy regulation,
3763-.181,256(n55)
and speech regulation, 45-48, 72-73,
229-230(nn 68-72), 231(n74),
236(n11)
Public forum dctct.rin-ne,and content
discrimination, 41
Rabidue rr OsceoXa Refining Co.,
235(n39)
Racial defamatirtn, 57-58
Racial discrirninaticm, 1-3, 62. Sec also
Equality rights
Racial equaliQf 9&94,201-302,105
and stereotyping, 94-98
Racially harassing speech, 62,234(n38)
Racially motivated crimes, 5-6
Racial slurs, 53, 62,234(n38)
Racism, and hate speech bans,
383-l@
Racist beliefs.;,and hate speech, SlaCalzlc Verses (Rushdie), 143
124-136 kalia, h t a n i n , 56,219(n6), 228(n53)
Racist expression, 101,242(nn 26-22). and content discrimination,
Sce also Hate speech 227(n34)
Racist fighting words, 52, 74. Sec also and R.A.V., 63-64,75--78,
Fighting words 23&237(n21), 237(n23)
Racist speech, 52. Sec also Hate and strict scrutiny, 227(n37)
speech kanlon, Thomas, autonomy theory,
Radtke, Lorraine, 263(n116) 15-1 S, 221(1113)
Rap music, 29 khauer, Fredericlk, 22, 79,203-204,
Rape myth, 195 206,257(n17), 261(n91)
R.A.V. v. City ctf St. Paul, 48,56, 58,623, Sclhenck, Charles, 17
7'4,101, 225(n2), 231(nll), khenck v. Pro-Choice Network,
232(n14), 233(&7), 235(n48), 2406n66)
248-249(n34) khenck v. United States, 1'7,
decision, 74-78, 236(nlEI), 39
236-237(n21 ), 237(nn 23-24) khneider v. State, 228(n43)
bagart, Ronafd, 192 khwimmer, Rosika, 164
Red Lion Broadcasting v. FCC, 99, kientific studies
220(nl1), 230(n70) ideotc3gical assssment of, 214-217,
Red Scare, 252(n5) 267Cn157)
cases, 21-23 of pornography 141-217,260(n83)
Reed, Ralph, 101 Sclrttt, J~oseph,205
Regan v. Taxation with Representation, kars, Alan, 206
227(n42) Secrtndary effects, 37-38
Regan v. Time, 227(n41) kcurities regulations, 43,
I;legina v. Butler, 147,149 48
Rehnquist, William, 90,121, 226(n22), %X F-expression, 14
233(n30), 252Cnl) 9tE-Eulfillment, l 4
and hate crime laws, 65 Self-hatred, and hate speech, 129,
and secondary effects, 37-38 247(n8)
Reno v, ACLU, 61,23O(n70), Sef f-regarding speech, 221(n14)
B2(n2 6) k n n , Charlene, 259(n40), 263(n11&),
XXenton v, Playtime Theatres, Inc., 33, 264(n120)
37; 225(n4), 234(n36), 238(n51) k x callousness, 197,259(n4&)
Report of tlzc Surgeall General's Worksltop %3x crimes, 194
on IJenzquapilly alzd Public Healfh, and pornograph~78-81
132,217 %3x education, 29
Roberts, Juiia, 96 Sexist beliefs, and hate speech,
Rornnttci~glhe Stone, 95 129-130
Rornerk v. Evans, 245(n72) Sexual devices, 263(n110)
Rosenfeld v. New Jersey 223(n51) Sexual harassment, 43
Roth v. United States, 2&29 in the workplace, 6243,
Rushdie, Salman, SlaCalzlc Verses, 143 2342356~39)
Russell, Diana, 191 %xually harassing speech, 48
Rust v. Sullivan, 228Cn53) kxually viotent material
San Franciwtctl Arts and Athletics v. definititln of, 192
US06,240(nQ2) See also Pornography, violent
"5mual Violence in the Media8'
~ C J ~ ~ 216
C I S " ~ ~ C ~ U l"~nfiry),
Shelly v. Kraerner, 239(n56)
Sheltcln v. McKinley, 113
Sheltun v. Tucker, 115
Sheppard v. Maxwell, 241(n67)
Shuttleswarth v, Burmingharn, 110
Sixnon & &hustex; Inc. v. Members of
N.U. St. Crime Board, 220(nll)
Slade, j o ~ p h 2Q7,263(nlQ17)
, Stereoqpes, racial and gender, 94-98,
Slander, 223(n52)
Smith, Uonald, 207,208
Smith, Williarn French, 142
Smith Act, 22,852, 352,223(n41),
254Cn34)
SNCC, See Student Nonviolent
Coordinating Committee
Snyder, Debra, 262(n96)
Souter, David, 228(n53)
South Africa, 145
Southern Poverty Law Center,
248Cn31)
Speech
definition of, 32
government-subsidized, 4zI
228fn53)
lc3wer-value, 33,225(m 4-5)
on matters of public concern, 44-4-45,
22(3(nn 62-63), 224(n65)
in medium essential to public
discour*, 46-47', 230(nn 70---71)
prukcted and unprotected, 32-33,
2251~12)
in settings essential to public
d isa>urse,45-48,223(nn SIF-S9),
230(nn 71-72), 231(n74)
Speech act, definition of, 23;7(n3';7)
Speech prsteetion, theory of, 15-16,
221-222f 1119)
Spence v. Washington, 225(n6)
Spinner study, 205,262(n97)
Spock, Benjamin, 23
Stair v- Lehigh Valley Carpenters tosaf
Union 600f234(n39)
Stanford, hate speech code, 25lCn45)
St-anleyv. Georgia, 221(nl$),
246(n80)
St ~ Trek:
r The Next. Cen~rnCion,96
State vs. private acticm, and hate
speech, 8&88,240(n63)
Stefancic, Jean, 95-96,112,242(n18),
250(n27)
on free speech and abolition
mavernent, 106106
on free speech and civil rights, 106,
243(n36)
241fn4), 241(n8)
Stevens, J o h Paul
and tower-value speech, 33
and R.A.V, 76
Stewart, Potter; 246Cn80)
Stock market manipulation, 70
Stowe, Harriet Beecher, Ujzcle Tonr S
Cul~r'n,104-1 05
Street v. New York, 10&109,24(n43)
Strict scrutiny, 39,225(n7), 222(n37)
and hate speech bans, 53-54,55--56,
232(nl7)
and R.A.V,, 237(n24)
and tort Iiabiliv, 42-43,229(n58)
Stromberg v. California, 220(n2)
Strossen, Nadine, 137; 24&349,153
Student Nonviolent Coordinating
Committee (SNCC), 23
Subject-matter di~rirninaticm,36
Sullivan, Ka thXeen, 353
Sullivan, L. B., 111
Summary affirmance, 233(n30)
Sunstein, Cass, 84-85, 165-1 66,
37ri-181,23&239(n52), 253(n23),
255(nn 38-39), 255(n45),
25&%256(n51)
Sweden, hate speech in, 142
Swept Amyr 194
Television, 94-95
commercials, 95,241(135)
See also Media
Texas v, fohnson, 37,121,171,225(n?),
252(n1)
Thatcher, Margaret, 145
Thirteenth Amendment, 239(n56)
Thornas, Clarence, 219fn6)
Threats, 62,70
Times Film Corp. v. Chicago,
230(n70)
Toolbox Murders, l 95
Tort liability, and cctntent
discrimination, 42-43,229(n58)
Totalitarianism, 254(n37)
and hate speech and pornography
regulatirm, 141-142
Trademark regulation, 70,171-72
Tribe, Laurence, 86-87,24O(n58)
Eopz'c ";1( Ca~zcer(Miller), 29, 82, 142
Tropic of Capn'conz (Miller), 28, 142
Truth Discovery, 13
Turner Broadcasting System, Inc. v.
FCC, 37,22G(nl5), 22'7Cn41)
TV Guide* 22$5(n52)
2 Live Crew, 29/83
Ulj~ssesOoyce), 82,142, 178
Ulzcte R m S Cabin (Stowe), 104-105
Uljforgivcn, Tjze, 96
United Kingdom, hate speech in, 142,
151
United States v. Eichman, 232(n20),
246(n'78)
United States v. Ktrkinda, 228(n48)
United States rr UEZrien, 225(n8)
United States v. Schwimmer, 243(nJ5),
252(n17)
University of Michigan, 235(n45)
University ctf 1X3emsylvania Law
%hoot, 122-223
Unprotected speech, 32, 225(n2)
Uphaus rr Wyman, 116
U,$, News arzd Worm Xepc~rl,208
Vietnam War, 71
and antiwar protest, 23-24,25
Viewpoint discriminaticsn, 36
and hate speech bans, 54,231(135)
Vinson, Fred, 22
Violent mat-eriaf, regulation,
80
Violent pornography
definition of, 264(n116)
prevalence of, 205-2081262(n46)
Virginia Pharmacy Board rr Virginia
Citizens Council, 223(n57)
Walker v. Birmin$am, 110
Wall Street jour~zaf,263(n111)
Warren, Earl, 23,223(n41j1244(n43),
244(n51)
Warren Court, 89,925
and advocacy of illegal activity,
23-24
and hate speech, 160
Washington, Benzel, 96
Washington v. Glucksberg, 221(n13)
Wat-ergate scandal, 98
White, Byron, 244(n43), 24(n51)
and R.A.V., 76,237fnn 2,%24)
White Circle League, 57
White Citizens Councils, 255(n51)
Whitney rr Cafifc>rnia,21, 221 (13221,
223(n36)
Wilkinson v, United States, 245(n69)
Wil Iiams Committee, 2661n135)
Winick, Charles, 262(n96)
Wixonsin v. Mitchell, 65,231 (n30),
235(n48)
Wise rr New York City Police Dept.,
234(n39)
Wdf, George, 105
Women
and free speech doctrine
discrimination, 69-74
and gender discrimination, 51,156,
I 86
and pornography, 7&85,8O-81,
148-1 50,153,1 M-185,250(n25)
silencing of, 133-135
violence against, 131-132, 186,
241(n8)
See also Equality rights
Words, disrespectful, 70,72
Words Tlmt W O U F(Matsuda
Z~ et al.),
3
Workplace
and content regulation, 234(n';74),
231(n"7Ci)
and hostile environment, 62-63,
23&235(n39)
 and pornographic displays, 62,
23iJiJ235(n34)
and racial slurs, 53
Wc>rldWar I, 117
antiwar protest, 16-17
Yang and Linz study, 207
'r'ates v. Avco Corp., 235(n39)
Vates tr United States,
223(n41)
Young v. American Mini Theatres, Tnc.,
33,234(n36)
Yun, Wavid, 69-73
Zillrnann and Bryant study, 196,197,
202,24 Q