Summary of lectures on hate speech

First amendment law:
  • Applies only to government action, not to private parties
  • "Speech" can include symbolic speech
  • "time, place, and manner" restrictions generally permitted
  • content-based restrictions not permitted
  • exception:  "fighting words" - Chaplinsky
  • scope of "fighting words" significantly narrowed by Cohen and Skokie

    • Types of hate speech:

  • assaultive speech, face to face use of epithets
  • presentation of ideas in dicussion

    • Utilitarian analysis

    Do the harms outweigh the benefits?  For utilitarian, this settles issue of whether hate speech is wrong (but not issue of censorship)

    Kantian analysis

  • wrong of treating person as having inferior moral standing; act of subordination (Altman)
  • wrong regardless of consequences


    • Censorship/regulation

    In On Liberty Mill appeals to harm principle:
    Are these direct harms?  Do these harms violate rights? [this is likely area of disagreement]
    Right not to be degraded by speech?

    And to freedom of speech arguments
     promoting ideas? - assaultive speech not about promoting discussion
     same ideas can be presented in communicative manner

    Tension between Mill's harm principle and his freedom of speech argument in this context

    Arguments for censorship/regulation:

  • assaultive speech falls under "fighting words" exception (Lawrence)
  •  is this true given Cohen/Skokie narrowing of fighting words exception?
  • Cohen protects emotional tone, use of particular words
  • Corry v. Stanford University: court held that Stanford speech code prohibitions were too narrow.


    • Practical considerations

  • Can government/university be trusted to draw the line? (see Skokie)
  • Will hate speech regulations be used against groups they were designed to protect?

    • Alternatives to censorship/regulation:

    · If we think the problem is excessive government interference, there is no reason for individuals not to act.
    · If we want to promote dialogue by allowing hate speech, we need to provide the other side of the dialogue.
    · If our concern is individual development, then we ought to be concerned with the development of the speaker

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