Legalistic, widely ranging jeremiad against the suppression of “hate speech.”
Strossen (New York Law School; Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights, 1995), the president of the American Civil Liberties Union from 1991 to 2008, is well-versed in the tangled history of efforts to protect or constrain hate speech, including the infamous 1978 Skokie, Illinois, case in which the ACLU defended the right of neo-Nazis to march. She believes that more harm is done by trying to muzzle repugnant discourse, since “anyone can be both accused of and subjected to ‘hatred’ based on a wide range of personal characteristics and beliefs.” Furthermore, most people fail to understand that the laws established to protect questionable speech are complex and ever evolving. The author argues that speech is not absolutely protected, subject to the legal principles of the harmful tendency and emergency tests (essentially, whether it “directly causes specific imminent serious harm”), and that many assume “that speech with a hateful message is automatically excluded from First Amendment protection.” In brisk chapters, she first explains when hate speech is protected and when it is punishable, then goes on to argue her position, noting how the legal remedies attempted to date are inherently vague or broad and may cause greater harm than the offending speech itself. She notes that the Supreme Court has not included hate speech in the narrow category of speech unprotected by the First Amendment, including “defamation, commercial advertisement, obscenity, and fighting words.” Campus speech codes, for instance, are often struck down upon judicial review. Regarding such laws’ inherent vagueness, writes Strossen, “over and over, different decision-makers in the same country disagree” over what constitutes actionable hate speech. Chillingly, she examines many cases internationally where such policies were used against marginalized groups or activists. The author concludes, “I am more appreciative than ever of U.S. law’s nuanced position in drawing the line between punishable and protected ‘hate speech.’ ”
A well-informed, strongly argued perspective on a hot topic, but readership may be limited by the technical tone.