What the History of Obscenity Tells Us about Hate Speech
Publication Year: 2011
“Kevin Saunders puts forward a striking thesis, namely that hate speech deserves regulation under the First Amendment because it degrades the human personality of those whom it targets. In likening hate speech to pornography and obscenity, Saunders provides a novel and arresting approach that avoids entanglement in the thought-ending clichés that have marked much previous scholarship on this subject.”
Published by: NYU Press
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I wish to thank Elizabeth Glazer, Shubha Ghosh, Koji Higashikawa, Mike Hoffheimer, Frank Ravitch, Fred Schauer, Al Storrs, and James Boyd White for their comments on, exposure to, or discussion of the issues raised in portions of this book or for reactions to earlier work leading to this effort. Thanks also to the reviewers, who contributed important suggestions to the ...
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This book is ultimately about hate speech. That may not be obvious from the first half, which is a discussion of the history of how societies have accepted pornographic depictions or have rejected those depictions through lists of banned books or antiobscenity laws. Yet obscenity is a useful way to talk about racist, sexist, or homophobic speech. It stands as a sort of metaphor ...
2. Pornography, Life, and the Gods in the Greek and Roman Eras
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The noted journalist and author David Loth begins his discussion of pornography in the ancient world by saying, “For as long as man has had literature he has had pornography but most of the time he didn’t know it. Among the ancients sex was unashamedly joyous, in reading as in practice.” 1 Although the passage applies to even older civilizations, Loth is also addressing ...
3. The Arrival of Christianity
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With the arrival of Christianity, Europe faced a profound change in the nature of God. For the Greeks and the Romans there had been a host of gods and goddesses, who were in many respects like humans. They had healthy appetites for food, drink, and sex. With a multitude of gods, there was interaction not only between gods and humans but also among the ...
4. The Modern Era
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When cutting such wide swaths—thus far roughly a millennium long—through European history, it is difficult to decide when one era has ended and another begun. Some eras may have specific start dates: it seems reasonable, for example, to consider the Reformation to have begun on October 31, 1517, in Wittenberg, Germany, when Martin Luther nailed his Ninety-Five...
5. A Look at Other Cultures
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The material laid out so far makes a case for the concept of sexual obscenity’s being tied to the relationship between humans and God or the gods on the one hand and humans and the animals on the other, but it has done so totally within the context of a Western culture born in Greece and eventually extending to the United States. If the thesis is correct, it should ...
6. What about Hate Speech?
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Now that we have examined the concept of obscenity, what should that tell us about hate speech? Before turning to that question, it should be noted that one does not have to accept the argument as developed so far to find the remaining material relevant. That is, one may conclude that obscenity is only about sexual depiction and has nothing to do with degradation. ...
7. Using Obscenity Doctrine to Address Hate Speech
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The current U.S. test for obscenity was set forth by the Supreme Court in the 1973 case Miller v. California.1 There the Court noted that it had already recognized a legitimate state interest in prohibiting the distribution or exhibition of obscene material when there was a significant danger of offense to unwilling recipients or exposure to children.2 In Miller the Court set about ...
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This chapter applies the test developed in the preceding chapter to a number of examples. The examples flesh out the abstract analytical structure already presented. In most of the examples, the suggested conclusion is that the speech presented was not hate speech. That should not be taken as an indication that I do not have concerns over hate speech. Examples in which ...
9. Variable Obscenity, Children, and Hate
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Richard Delgado and Jean Stefancic argue in their book Understanding Words That Wound that children require special protection from hate speech.1 They present that argument from the point of view of the minority child, who is “particularly susceptible to the wounds words can inflict.” 2 Through hate speech, they note, young minorities are taught to hate themselves, ...
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In February 2009, Eric Holder, the Attorney General of the United States, delivered a speech to employees at the Justice Department marking Black History Month. In the speech he called for a conversation on race and said that the United States is “a nation of cowards” in the discussion of racial matters.1 The speech may be seen as repeating a similar call by now-...
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About the Author
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Page Count: 256
Publication Year: 2011