This paper describes the rationale that a full protection theory of free speech, a theory based on respect for individual autonomy, would give for protecting hate speech. The paper then notes that such a rationale will be unpersuasive to many (including this author) if the harms associated with a failure to outlaw hate speech are as great as often suggested – most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The article then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons to doubt that this evidence has been or will be forthcoming. Still, given the horrendous nature of the harm, caution suggests not taking the risk. That is, the risk may justify prohibiting hate speech given its possible role in causing these consequences. In response to this last point, however, the paper gives reasons to believe that the attempt to prohibit hate speech is more likely to exacerbate the risk of unacceptable outcomes than to generate the benign opposite. Thus, the argument ends in accepting the theoretical reasons for giving First Amendment protection to hate speech.
Baker, C. Edwin, "Hate Speech" (2008). Faculty Scholarship at Penn Law. 198.
Constitutional Law Commons, First Amendment Commons, Gender, Race, Sexuality, and Ethnicity in Communication Commons, Human Rights Law Commons, Law and Society Commons, Public Law and Legal Theory Commons, Social Psychology and Interaction Commons