Friday, June 5, 2009
The American tradition of free individual expression exists side-by-side with its Fourteenth Amendment commitment to equality. In the area of hate speech, the libertarian notion of free expression comes into tension with the aspiration of equal dignity. While it is evident that maintaining equality means that government has no power to treat the speech of similarly situated persons differently, potential interpersonal friction exists where the speech of one person threatens the rights or safety of another. With the expansion of the Internet, new regulatory challenges more frequently arise because of the global reach of hate propaganda transmitted from the United States, where it is legal, and streamed into countries, like France, where such communications are criminal offenses.
The global reach of supremacist ideology creates a challenge to world democracies. Societies committed to pluralism are obligated to safeguard individual expression while promoting egalitarian principles against harming others' safety and dignity. Consequently, as much as American society extols freedom of speech, there are many instances in which competing interests, such as retaining a good reputation in one's community, place restraints on public communications. Where one person wishes to express false statements about another, defamation law sides not with the desire for inaccurate catharsis but with the protection of reputation. The preference for an "individual's right to the protection of his own good name 'reflects no more than our basic concept of the essential dignity and worth of every human being.'" Public policy favors the interest of libeled individuals over that of anyone wishing to intentionally or negligently spread fallacy. So too where words are likely to result in the immediate breach of the peace. The Supreme Court has found that the government has a countervailing social interest in order and morality that justifies some limitations on speech.
This Article opens with an analysis of hate speech in a democratic society. The first topic to investigate is the role of speech in our constitutional democracy. The current Supreme Court cases that affect the status of hate speech are then reviewed and critiqued. Finally, the Article contrasts the American approach to destructive messages with the European and Canadian models.
Download the article from SSRN here.