Published: Dec. 1, 1998 • By Steven J. Heyman

(Note: This essay is a shorter version …)*

[1]  In January 1995, a University of Michigan sophomore known as Jake Baker posted a short story to an Internet site devoted to explicit fiction.[1]  In January 1995, a University of Michigan sophomore known as Jake Baker posted a short story to an Internet site devoted to explicit fiction.1 The story, "Pamela's Ordeal," graphically recounted the narrator's rape, torture, and murder of a woman who was given the same name as one of Baker's classmates. A university investigation found that, in addition to writing several similar stories, Baker had also engaged in a long email exchange with a Canadian man, in which the two had shared their desires to commit sexual violence against young women, discussed how they would go about it, and made vague plans to meet.

[2]  Based on this information, the university suspended Baker and banned him from campus. A week later, he was arrested and charged with the federal offense of transmitting threats in interstate or foreign commerce. The charges were later dismissed by the United States Court of Appeals for the Sixth Circuit, which ruled 2 to 1 that Baker's conduct did not amount to a threat under federal law.2

[3]  The Baker case sparked intense controversy not only within the university, but across the country and on the Internet. On one side, Catharine MacKinnon and others asserted that Baker's story constituted a form of assaultive speech, which was deeply degrading to the woman that it named and threatening to her sense of safety. Others, including officials of the American Civil Liberties Union, responded that while the story was abhorrent, it was merely fiction or fantasy, fully entitled to constitutional protection.3

[4]  In many ways, the Baker case is typical of contemporary disputes over freedom of expression. Whether they focus on hate speech, pornography, flagburning, cigarette advertising, abortion-clinic demonstrations, protecting the identities of sexual assault victims, tobacco advertising, violent entertainment, the National Endowment for the Arts, Internet regulation, or other issues, these controversies tend to have the same basic structure.4 Those who advocate the regulation of a particular kind of expression contend that it causes serious harm to individuals, groups, or the community at large. Opponents are often skeptical about the seriousness of this injury. In any event, they argue, the First Amendment denies government the power to prevent such harm through the suppression of speech.5

[5]  Of course, it is difficult to deny that speech can sometimes be regulated consistent with the First Amendment. Few, for example, would question the government's authority to punish incitement of violence or false advertising.6 Yet we have no well-developed and generally accepted view of when regulation is legitimate. In the absence of any common ground to appeal to, First Amendment disputes seem increasingly bitter and irresolvable.

[6]  It is hard to see how this stalemate can be broken without a more general theory of the scope of free expression–a view that integrates both the justifications and the limits of this freedom into a coherent whole. This essay makes a start toward developing such a theory. Its central thesis is that freedom of speech is limited by the fundamental rights of other individuals and of the community.

Natural Rights, Social Welfare, and the First Amendment

[7]  As I have shown elsewhere, this idea was regarded as axiomatic when the First Amendment was adopted.7 Eighteenth-century Americans drew on a variety of sources for their understanding of free speech, including the common law and the civic republican tradition.8 But the most comprehensive framework that they looked to was provided by natural rights theory. According to this theory, freedom of speech is a right inherent in human nature as well as republican citizenship. Like all such rights, however, it is bounded by the rights of others.9 The classic example is defamation. While I have a right to free speech, others have a right to reputation. Government is instituted to protect rights against wrongful injury. On this view, the state has not only the authority but the duty to restrict speech when it unjustifiably defames others.

[8]  Natural rights theory thus suggests a rather straightforward principle: that freedom of speech is limited by the rights of others, and that the law may protect these rights against expression that violates them. Although this principle was widely held when the First Amendment was adopted, it no longer holds a central place in American constitutional theory or doctrine. Instead, we now generally view First Amendment problems in terms of an opposition between freedom of speech and "state interests."

[9]  To understand this shift, we need to briefly explore the transformation of American jurisprudence after the Civil War.10During the late nineteenth and early twentieth centuries, the theory of natural rights gave way to a more positivist and utilitarian conception of law. On this view, rights are not inherent in individuals, but derive their force from the positive law of the state. The purpose of law is to promote social welfare, not to protect individual rights as such.

[10]  The advent of this view undermined the traditional rationale for protecting free expression. Rather than a right of nature or of democratic citizenship, free speech was represented as merely one interest to be weighed in the utilitarian calculus. There was nothing distinctive about speech that entitled it to special protection, or that placed it beyond the authority of the state to regulate like any other form of activity.

[11]  The central task of modern First Amendment thought has been to reconstruct a justification for freedom of speech within the framework of post-natural-rights jurisprudence. During the early twentieth century, leading defenders of the First Amendment such as Harvard law professor Zechariah Chafee, Jr., and Justices Oliver Wendell Holmes and Louis D. Brandeis emphasized the importance of free speech for democratic self-government and the search for truth. For these reasons, they argued, the social interest in free speech was so great that it should give way only where speech presented a "clear and present danger" to other important social interests.11

[12]  By the middle of the century, the "clear and present danger" test had evolved into a general balancing of speech against other social interests. As Justice Hugo Black forcefully argued, this approach failed to provide reliable protection for speech.12 In more recent years, free speech has once more come to be regarded as a right. But this revival of the idea of rights in First Amendment jurisprudence has not extended to the other values that may be harmed by speech. These values continue to be characterized as social interests or (since the state is regarded as the spokesman for such interests) as state interests.

[13]  In this way we have come to conceive of First Amendment issues as clashes between free speech rights and state interests–a term within which the rights of others have been absorbed. When the issue is posed in this way, we seem to face a tragic dilemma in which the more we protect speech, the more we must sacrifice other rights, and vice versa. It is for this reason above all that contemporary free speech controversies appear so intractable, and that the disputants so often seem to talk past each other. These problems, which go to the heart of modern First Amendment theory, should lead us to consider returning to a rights-based approach.

Free Speech in a Framework of Rights

[14]  In constructing a rights-based theory of the First Amendment, I shall draw on the liberal natural rights tradition identified with Locke and Kant–a tradition which, as we have seen, did much to shape the ideological background of the First Amendment, and which continues to represent a deep current in American thought.13 On this view, rights are rooted in the concept of human liberty. The core meaning of liberty is self-determination: a free person is one who determines her own thoughts and actions, rather than being determined by something other than herself.14Natural rights theory then develops the content of rights by exploring what it means to be a free person in various spheres of life. These include (1) the individual's existence in the external world; (2) her inner life and its expression to others; (3) her social and political life; and (4) her intellectual and spiritual activity.15 In the following sections, I shall show that these four aspects of liberty not only provide the major justifications for free speech, but also give rise to other fundamental rights. When speech violates these rights, I argue, it may properly be regulated unless its value is so great as to outweigh the injuries that it causes.

Free Speech and External Rights

[15]  The first, and simplest, way to understand freedom of speech is as an aspect of liberty in general–the exercise of an individual's natural capacities for thought and expression. On this view, free speech falls within the traditional natural rights to life, liberty, and property.16 But of course other individuals also have a right to be secure in their persons and property. Speech violates this right when it amounts to an imminent assault; when it conveys a serious threat of future violence; or when it incites third parties to attack others. Since individual rights exist under the protection of the community, such speech may also constitute a breach of the public peace, and may thus result in criminal as well as civil liability.

Free Speech and Rights of Personality

[16]  To be fully free, a person must be free not only externally but also in her inner life. This brings us to a second category of rights, which I shall call rights of personality. Like the traditional triad of life, liberty, and property, these rights are rooted in our nature as autonomous beings. The focus of self-determination has shifted, however: rather than acting in the external world, the self now turns inward to shape its own intellectual and emotional life. Rights of personality reflect what it means to be a free person in this internal realm.

[17]  First Amendment rights may be understood in this way as well. In determining his own thoughts, beliefs, values, and emotions, an individual shapes his inner self or personality. He further realizes himself through the expression of his thoughts and feelings to others. It follows that unjustified restrictions on speech and thought are wrongful not merely because of the limits they impose on outward liberty, but also in a deeper way, because they obstruct the individual's right to autonomously determine, express, and realize his own personality.

[18]  At the same time, individuals also have other rights of personality, some of which may be violated by speech. First, speech can cause substantive injury through the intentional infliction of emotional distress. Second, I would argue that severely abusive speech infringes the inviolability of personality, in much the same way that offensive battery (an unauthorized touching that "offends a reasonable sense of personal dignity"17) violates bodily integrity. Third, speech and related forms of conduct can constitute an invasion of privacy, or the right to maintain the integrity of one's personal life by preserving the boundary that separates it from other persons. Finally, defamation violates the right to reputation, which can be understood as the social dimension of personality.

Free Speech and Community

[19]  Self-determination takes place not only on an individual but also on a communal level. This leads to the third justification for free speech: that it is central to democratic self-government. In a classic statement of this view, Alexander Meiklejohn invokes the image of a traditional town meeting. Citizens must hear all sides of an issue, he argues, if they are to reach the wisest and most fully informed decisions.18

[20]  For Meiklejohn, this image also suggests the appropriate limits of free speech. The town meeting cannot function unless its members observe some rules of order, such as the rule that forbids personal abuse in debate. Speech of this kind, he says, obstructs the deliberative process, and thus "threatens to defeat the purpose of the meeting." For this reason, it is not protected by the First Amendment.19

[21]  This highlights a crucial point about the nature of free speech rights. When viewed in terms of general liberty or self-realization, free speech was an essentially individual right–a right that in principle could be exercised by a single individual, without any interaction with others. In contrast, political free speech can be understood as a relational right–a right to interact with others in a particular way. It is a right to engage in discourse with other individuals who have the same rights of citizenship and participation, and who share certain interests as a community. The right to political participation therefore carries with it a duty to respect the corresponding rights of other citizens and of the community itself. This limitation is not imposed from the outside, by the existence of other kinds of rights, but is an internal limit that arises from the very nature of the right to political speech.

Free Speech and the Search for Truth

[22]  The last major justification for free speech is that it is necessary for the pursuit of truth. In addition to the instrumental value that knowledge has in furthering other ends, classical theorists such as Milton and Mill hold that the search for truth has intrinsic value in developing people's intellectual capacities, and thereby realizing their nature as rational beings.20

[23]  Once again, this rationale not only provides a basis for free speech, but also points to some constraints on that freedom. First, in asserting a right to intellectual freedom, an individual appeals to her status as a rational being. But this status is one that she shares with human beings in general. It follows that an individual cannot consistently assert this right and at the same time refuse to recognize others as rational beings. Second, as Professor Susan Williams demonstrates, in many ways truth is intersubjective, and can be attained only through communication with others.21 To this extent, the search for truth also may be understood as a relational right which requires respect for other participants.

[24]  It is important to stress the limited role of these two constraints. I do not mean to imply that they provide an affirmative justification for regulating speech. For the liberal tradition, the coercive powers of government do not extend to matters of thought or belief as such; government may never restrict speech simply because of disagreement with it or fear that it will undermine the truth. Instead, my contention is simply that speech that violates these constraints has less value for the search for truth. This means that there is a weaker argument for protecting such speech in cases where it can be shown to violate other rights.

Conflicts of Rights

[25]  On the view outlined here, free speech must be exercised with due regard for the rights of others. It does not follow, however, that speech must always give way to other rights. In some cases, an apparent conflict can be resolved by adjusting the boundaries of the competing rights. Even when this is not possible, speech that infringes other rights is only presumptively wrongful, for it may have such value that it should be regarded as justified despite the injury that it causes.

[26]  There are three related ways of approaching conflicts of rights. The first is to balance the rights in order to determine which has more value. Of course, to do this we need a common standard by which to measure them. For the rights-based theory, that standard may be found in the four elements of liberty that justify these rights in the first place. Thus, rights have value as aspects of (1) external freedom, (2) internal freedom to develop and express one's personality, (3) freedom to participate in social and political life, and (4) intellectual and spiritual freedom to pursue meaning and truth. The ultimate question is which right, at the margin, is more important as an aspect of human liberty.

[27]  In contrast to balancing, which involves an external comparison of rights, the second approach explores whether there is any internal relationship between them.22 For example, individuals cannot speak freely unless they feel secure against violence. In this sense personal security is the most basic of rights. Thus, speech should not be protected when it is used to seriously threaten the safety of others.

[28]  At the same time, it is important to recognize that the relationship between rights does not necessarily run in only one direction. Thus, while personal security is a necessary condition for freedom of speech, the converse is also true. Free speech is essential to political liberty, which the liberal democratic tradition regards as the ultimate safeguard of all other rights.23 It follows that political speech should not be restricted on the basis of merely speculative fears of injury, but only when it poses a direct and substantial threat to other rights.

[29]  This discussion of the interrelatedness of rights suggests a further point: that rights are integral to a larger whole. This leads to a third way of resolving conflicts, which is to ask which right, under the circumstances, is most important to the system of constitutional liberty as a whole. For example, while individuals have a right to reputation, in the case of public officials that right must give way to the community's right to assess their character and performance, a right that is vital to democratic government. For this reason, the Supreme Court held in New York Times v. Sullivan that defamatory statements regarding the official conduct of public officials are constitutionally protected unless knowingly or recklessly false.24

[30]  In some cases, then, speech should be protected despite the injury it causes to other rights. This principle is subject to an important constraint, however: an act of speech cannot be privileged merely because the speaker values the wrongful consequences of the act, but only for some other reason. For example, while an individual may have a right to threaten another in self-defense, there can be no right to threaten merely because one desires to invade another's right to personal security.

The Rights-based Theory and Contemporary First Amendment Jurisprudence

[31]  As a way of contrasting the rights-based theory with current free speech jurisprudence, I would like to consider the Supreme Court's 1989 decision in Florida Star v. B.J.F.25 After B.J.F. was raped at knifepoint by an unknown assailant, she reported the crime to the county sheriff's department. A few days later, theFlorida Star published a full account of the rape which identified her by name. A jury later ordered the newspaper to pay B.J.F. $100,000 in damages for violating a Florida statute that made it unlawful to publish the names of sexual assault victims.

[32]  By a 6 to 3 vote, the Supreme Court overturned the award under the First Amendment. Justice Marshall's opinion for the majority frames the issue as a conflict between the press's right to publish truthful, lawfully obtained information, on one hand, and what he calls the "state interest" in protecting the privacy and safety of rape victims, on the other. Marshall recognizes that this is an "interest of the highest order," but asserts that, under the circumstances, the statute was not necessary to protect them, because the government itself had inadvertently given the Star's reporter access to B.J.F.'s name.26 For this reason, the Court held the application of the law invalid under the "strict scrutiny" test, which holds that restrictions on the content of expression are presumptively unconstitutional and will be upheld only when they can be shown to be necessary to promote a compelling governmental interest.

[33]  Florida Star would look very different from a rights-based perspective. On this view, the statute's purpose was not to promote the interests of the state, but to protect the rights of the victim. The government's own failure to comply with the law should not have the effect of waiving B.J.F.'s rights, or relieving the newspaper of its own duty to respect them. Instead of applying a standard heavily weighted toward one side of the balance, the rights-based view would compare the two rights in terms of their value for human liberty. On one hand, the Star's action seriously invaded B.J.F.'s fundamental rights to privacy and personal security. On the other hand, it is difficult to see any important value served by disclosing her name, at least before anyone has been charged with the crime. Under the rights-based theory, then, the Supreme Court clearly came out the wrong way in Florida Star.27

Hate Speech

[34]  Let us now explore how this theory would apply to the problem of hate speech–whether the First Amendment should protect expression that abuses or degrades others on the basis of such traits as race, ethnicity, gender, sexual orientation, and religion.28 In approaching this issue, the theory begins with the concept of recognition.

[35]  For the natural rights tradition, rights are ultimately rooted in personhood. It follows that an individual cannot enjoy rights in relation to others unless they recognize him as a free person. Recognition is the most fundamental right that individuals have in relation to others–a right that lies at the basis of all their other rights.29

[36]  From a rights-oriented perspective, the core problem with hate speech is that it denies recognition to its targets. In fact, I believe that hate speech can best be defined as expression that intentionally denies recognition to others, and thereby expresses hostility towards them. In addition to conflicting with the very basis of right, hate speech in many cases violates the concrete rights of individuals and the community. In such cases, I would hold that hate speech may be regulated, except where its value is sufficient to justify the injuries that it inflicts. In developing this view, it will be useful to begin with private hate speech, or that directed toward particular individuals, and then turn to the problem of public hate speech, such as that involved in the Skokie affair.

Private Hate Speech

[37]  In some cases, hate speech that relates to particular individuals will amount to an assault, threat, or incitement to violence. And of course group-based insults are also one of the most common forms of "fighting words."30 In all these cases, the speech infringes the targets' right to personal security, and/or the community's right to the peace.31 Private hate speech may also violate rights of personality, through intentional infliction of emotional distress, attacks on personal dignity, or invasion of privacy. Finally, hate speech contravenes the right to equality by denying all of these rights on the basis of race or other invidious grounds.32

[38]  Insofar as they violate these rights, acts of private hate speech are presumptively wrongful under the rights-based theory. For this reason, they should be held unprotected unless they have sufficient value to justify the injuries that they cause.

[39]  As an illustration, consider the classic form of hate speech in the United States–the burning of a cross to express hostility toward African-Americans or other racial, ethnic, or religious minorities. Suppose that the Ku Klux Klan burns a cross at night in front of the home of an African-American family that has recently moved into a white neighborhood, for the purpose of terrorizing the family and causing them to move. It is difficult to imagine a more serious invasion of personal security. If cross-burning occurs inside the family's yard, it will also violate their property rights, as well as criminal laws against trespass and arson.

[40]  The Klansmen's conduct also infringes the family members' rights of personality. The act is a flagrant and deeply offensive intrusion into their private lives, and thus constitutes an invasion of privacy. In addition, it is difficult to conceive of a clearer case of intentional infliction of emotional distress.

[41]  Does cross-burning, when it is directed against particular individuals, have sufficient value to justify the injuries that it causes? Undoubtedly it constitutes a form of self-expression. As we have seen, however, an act of expression cannot be privileged on account of the very aspect that makes it wrongful in the first place. A person has no right to pursue her own self-realization when it is defined in terms of denying the self-realization of others, and is directed toward them.

[42]  It might also be argued that the Klansmen's conduct should be protected because it is intended, at least in part, to express a political view. Even if cross-burning is entitled to protection as political speech, however–an issue that we shall come to shortly–it does not follow that this protection should apply to acts directed against particular persons. The Klan could communicate its political message just as effectively by burning a cross elsewhere, without inflicting serious injuries to specific individuals. Or, if this is not the case, then the increased effectiveness arises solely from the wrongful aspect of the conduct, the terror and degradation that it inflicts on the family. For these reasons, cross-burning directed toward particular persons should not be protected as free expression.

[43]  So far, my claim has been that hate speech may be restricted when it falls within an unprotected category of speech, such as fighting words. Suppose, however, that a jurisdiction chooses to ban not fighting words in general, but only those based on race or other group-based traits. In R.A.V. v. City of St. Paul, the Supreme Court ruled 5 to 4 that such laws are unconstitutional. Such a selective ban, said Justice Scalia, would violate the basic principle that government may not discriminate based on the content of speech.33

[44]  Justice Scalia's analysis in R.A.V. is extremely complex, and I have criticized it in some depth elsewhere.34 But the short response is this. While ordinary assaults or fighting words violate the target's rights, hate speech strikes at the very existence of those rights, by denying the target's status as a person and a member of the community. In this way, hate speech inflicts a deeper injury, and thus calls for a stronger response, than more ordinary kinds of assaultive speech.

Public Hate Speech

[45]  Finally, let us turn to the most difficult and controversial problem–that of public or political hate speech. Suppose that (as in the Skokie case) a group of neo-Nazis or Klansmen plan to hold a march in full regalia through a predominantly Jewish or African-American neighborhood, in order to express their belief that those groups should be subjected to segregation, deportation, or genocide.35 The question is whether such expression should be protected because of its political character.

[46]  The protection of political speech is correctly regarded as a central concern of the First Amendment. But while this right is fundamental, it is not absolute. Instead, as I have suggested, it is best understood as a relational right–a right to engage in discourse with one's fellow citizens, in a way that respects their own rights of membership and participation.

[47]  I would argue that political hate speech violates these rights in two main ways. First, it infringes the rights of target-group members to be treated as free and equal citizens who are capable of participating in self-government. In this way it contravenes their rights as members of the political community. Such speech also violates the integrity of the deliberative process by undermining the possibility of reasoned discourse. As Meiklejohn observes, such discourse depends on the existence of mutual respect among citizens.36

[48]  Second, in a democratic society, the people not only govern but also are governed. Political hate speech violates the rights of its targets in this capacity as well. Individuals have a fundamental right to recognition by the community that governs them. This may be regarded as the core meaning of the Thirteenth and Fourteenth Amendments to the Constitution, which abolished slavery and extended the rights of citizenship to all Americans. But this duty of recognition, I would argue, is one that binds not only the community itself but also its members. As citizens, individuals have a right to share in the political power of the community. With this right comes a corresponding duty to use that power in accord with the same obligations that the community itself has. Thus, citizens have a duty to recognize those over whom they exercise political power. They breach this duty when they engage in hate speech.

[49]  For these reasons, political hate speech should be considered presumptively wrongful under the rights-based model. The question then becomes whether it should nevertheless be privileged because of its value as political speech.

[50]  Following Meiklejohn, we might regard the paradigm case of political speech as expression that is addressed to the political community regarding an issue that it must decide. Judged by this standard, political hate speech lacks full value for two reasons. First, it is directed not to the community as a whole, but only to part of it–those who are not minorities. Insofar as it addresses the latter at all, it treats them not as citizens, but as objects of hatred and contempt. Second, when hate speech proposes extreme measures like segregation, deportation, or genocide, it does not relate to a matter of public policy for the people to decide, for no group of people can have the right to impose such measures on others.

[51]  Of course, to say that hate speech lacks full value is not to say that it has no value at all. For example, it is sometimes argued that hate speech provides useful information about the prevalence of racism, or that it helps us develop the social virtue of tolerance.37 Arguments of this sort do not, however, assert that hate speech has any value in itself, or that it makes a legitimate contribution to public debate. Instead, the speech is to be valued for something else that we may be able to find in it. This indirect value does not seem sufficient to outweigh the serious injuries that hate speech causes both to its targets and to the polity as a whole.

[52]  Nor should public hate speech be protected because of its contribution to the pursuit of truth. As I have suggested, the search for truth requires that human beings recognize one another as reasonable beings who are capable of participating in a common enterprise of inquiring after truth. Because hate speech denies recognition to others, it can make no direct contribution to this process. And, once more, while hate speech may have some indirect value in this respect, that value does not seem sufficient to outweigh the injuries that it causes to the rights of others.38

[53]  However one resolves the difficult issues surrounding public hate speech, it is clear that, under the rights-based theory, there is a realm of thought and expression that is beyond the legitimate reach of the law. Thus freedom of thought can never properly be restricted, since a person's inner thoughts can never violate the rights of others. The same is true of expression that is not communicated to others. This right of private thought and expression probably should also apply to private conversations, and to internal expression within small groups.39 Scientific and intellectual inquiry should also be protected;40 expression comes within the sphere of law only when it is directed toward affecting the rights of others.

[54]  In conclusion, let us briefly return to the case with which we began, that of Jake Baker. Assuming that, when Baker posted his story to the Internet, he did not intend for it to be read by anyone who would reasonably regard it as expressing a serious intent to assault the woman that it named, he should not be held to have made a criminal threat. Baker clearly violated the woman's rights of personality, however. In addition to recklessly inflicting severe emotional distress, his conduct constituted a profound invasion of her right to personal dignity and inviolability. Finally, whatever value the story may have had as self-expression or a contribution to culture, it was not necessary for him to use the name of an actual person. Because he could have achieved the same ends without violating the rights of others, his conduct should not be protected under the First Amendment.

 

Notes

* This essay is a shorter version of Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 BOSTON UNIVERSITY LAW REVIEW– (forthcoming Dec. 1998) [hereinafter Righting the Balance]. It was presented at the Chicago-Kent Legal Theory Workshop, and at the inaugural meeting of the Working Group on Law, Culture and Humanities held at Georgetown University Law Center, Washington, D.C., in March 1998. I am grateful to the participants in that session, especially Vincent Blasi, Charles Lawrence, Milton Regan, and Susan Williams, for their thoughtful comments on the issues raised by this essay, and to Alison Baldwin, Anita Bernstein, Jacob Corré, Michael Curtis, David Gerber, Carol Miller, Vincent Samar, and Steven Wilf for their reading of earlier drafts. I also learned much from conversations with Thomas Grey and Robert Post. Kerry Bartell, Jennifer O'Neill, and Lisa Weier provided valuable research assistance. Finally, I should like to express my deep gratitude for the research support provided by the Norman and Edna Freehling Scholars Fund, which made this project possible.

If you are outside the US and would like to obtain a copy of the long version of this essay (approximately 165 pages), contact the Editor at kibbey@colorado.edu.
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  1. The facts of the Baker incident are recounted in United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), and United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997), as well as in news accounts such as Megan Garvey, Crossing the Line on the Info Highway, WASHINGTON POST, March 11, 1995, at H1. The short story is reproduced in Alkhabaz, 104 F.3d at 1497-98 n.1 (Krupansky, J., dissenting). back
  2. United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997). back
  3. See, e.g., All Things Considered (National Public Radio broadcast, March 15, 1995) (transcript available on NEXIS, News library, Arcnws file) (remarks of Catharine MacKinnon); Agence France Presse, Court Upholds E-mail as Free Speech, Jan. 30, 1997 (transcript available on NEXIS, News library, Curnws file) (quoting Howard Simon, executive director of American Civil Liberties Union of Michigan, asserting that "[e]ven sick fantasies are free speech" protected by the First Amendment). back
  4. For the leading American cases on hate speech, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.), cert. denied, 439 U.S. 916 (1978) (ruling that members of a neo-Nazi organization have a First Amendment right to march in the predominantly Jewish suburb of Skokie, Illinois), and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding that a city ordinance banning the display of swastikas, burning crosses, and like symbols violates the First Amendment). On pornography, see American Booksellers Assn. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986) (striking down the feminist anti-pornography ordinance drafted by Catharine MacKinnon and Andrea Dworkin). The Supreme Court held laws against flagburning unconstitutional inTexas v. Johnson, 491 U.S. 397 (1989). For a decision upholding limited restrictions on abortion-clinic demonstrations, see Madsen v. Women's Health Ctr., 114 S. Ct. 2516 (1994). In several cases, the Supreme Court has held that states may not prohibit the media from publishing the names of sexual assault victims. See, e.g.,Florida Star v. B.J.F., 491 U.S. 524 (1989), discussed below. For a decision on tobacco advertising, see Penn Advertising v. Mayor, 63 F.3d 1318 (4th Cir. 1995) (upholding Baltimore ordinance banning most outdoor advertising of cigarettes), vacated and remanded, 116 S. Ct. 2575 (1996),aff'd on reconsideration, 101 F.3d 332 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997). Some recent developments on entertainment violence are described in Lawrie Mifflin, Deal on Making Ratings for TV Specify Content, NEW YORK TIMES, July 10, 1997, at A1, col. 1. This summer, in National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998), the Supreme Court rejected a First Amendment challenge to a law requiring the NEA to take account of "general standards of decency" in awarding grants to artists. In Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997), the Supreme Court struck down a federal law regulating indecency on the Internet. back
  5. It is important to note that those who support or oppose regulation often vary from one issue to another. Thus conservatives often support prohibitions on flagburning, while liberals oppose them; to a large extent, these positions are reversed on the regulation of cigarette advertising and anti-abortion demonstrations. back
  6. See Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (Harlan, J.) (observing that an absolutist reading of the First Amendment "cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like"). back
  7. I trace the history of the American conception of freedom of speech in Righting the Balance, supra note *, Part I. back
  8. For the common-law understanding of liberty of the press, see 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *151-53 (St. George Tucker ed., 1803 & photo. reprint 1969). The civic republican approach is best represented by JOHN TRENCHARD & THOMAS GORDON, CATO'S LETTERS (Ronald Hamowy ed., 1995) (London 6th ed. 1755) [hereinafter CATO'S LETTERS]. back
  9. A classic statement of the natural rights view appears in this passage by the Jeffersonian Republican jurist St. George Tucker: Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject, without restraint, except as to the injury of any other individual, in his person, property, or good name. St. George Tucker, Of the Right of Conscience; and of the Freedom of Speech and of the Press, in 1 BLACKSTONE, supranote 8, app. G, at 11. back
  10. For a valuable account of this transformation, see MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 (1992). back
  11. See ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH (1920); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). For excellent accounts of the development of modern First Amendment jurisprudence, see MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM (1991); David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 UNIVERSITY OF CHICAGO LAW REVIEW 1205 (1983); David M. Rabban, Free Speech in Progressive Social Thought, 74 TEXAS LAW REVIEW 951 (1996). back
  12. See, e.g., Konigsberg v. State Bar, 366 U.S. 36, 60-62, 74-75 (1961) (Black, J., dissenting). back
  13. For some contemporary works in this tradition, see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974); JOHN RAWLS, ATHEORY OF JUSTICE (1971). back
  14. On liberty as self-determination, see JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING bk. II, ch. 21 (Peter H. Nidditch ed., 1975) (4th ed. 1700); IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS *446-47 (Lewis W. Beck trans, 2d ed., 1990); IMMANUEL KANT, THE METAPHYSICS OF MORALS *213-14 (Mary Gregor trans., 1991); HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT §§ 5-7 (Allen W. Wood ed., H.B. Nisbet trans., 1991) [hereinafter HEGEL, PHILOSOPHY OF RIGHT]. back
  15. In order to avoid the awkwardness of "his or her," I shall alternate between masculine and feminine generic pronouns. back
  16. See, e.g., CATO'S LETTERS, supra note 8, No. 62 (treating freedom of thought and speech as aspects of natural liberty). back
  17. RESTATEMENT (SECOND) OF TORTS §§ 18-19 (1965). back
  18. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 24-27 (1960). back
  19. Id. at 24-25. back
  20. See JOHN MILTON, AREOPAGITICA, in AREOPAGITICA AND OF EDUCATION (George H. Sabine ed., 1951) (1644); JOHN STUART MILL, ON LIBERTY ch. 2 (David Spitz ed., 1975) (1859). back
  21. Susan H. Williams, A Feminist Theory of Truth (forthcoming). back
  22. On this approach, see JEREMY WALDRON, Rights in Conflict,in LIBERAL RIGHTS 203 (1993). back
  23. See Palko v. Connecticut, 302 U.S. 319, 327 (1937) (observing that freedom of speech and thought "is the matrix, the indispensable condition, of nearly every other form of freedom"). back
  24. New York Times v. Sullivan, 376 U.S. 254 (1964). back
  25. Florida Star v. B.J.F., 491 U.S. 524 (1989). back
  26. Id. at 533-34, 537-39. back
  27. A more difficult problem would be presented in contexts where a substantial public interest would be served by publication, such as reporting public proceedings in a criminal trial. See, e.g., Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975). back
  28. The literature on hate speech is vast. For some collections of major writings, see HENRY LOUIS GATES ET AL., SPEAKING OF RACE, SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND CIVIL LIBERTIES (1994); MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT (1993); HATE SPEECH AND THE CONSTITUTION (Steven J. Heyman ed., 1996). On the history of the issue, see SAMUEL WALKER, HATE SPEECH: THE HISTORY OF AN AMERICAN CONTROVERSY (1994). back
  29. For a discussion of recognition in Hobbes, Locke, and other early modern natural rights theorists, see Steven J. Heyman, Hate Speech and the Theory of Free Expression, in HATE SPEECH AND THE CONSTITUTION, supra note 28, at xli-xlii, xlvii-xlix [hereinafter Heyman, Hate Speech]. The concept of recognition and its relationship with right are more fully developed in later works, especially those of Fichte and Hegel. See, e.g., J.G. FICHTE, SCIENCE OF RIGHTS (A.E. Kroeger trans., 1889) (1796); HEGEL, PHILOSOPHY OF RIGHT, supra note 14, §§ 36, 57, 71, 84-85, 95, 331; G.W.F. HEGEL, PHENOMENOLOGY OF SPIRIT §§ 178-96 (A.V. Miller trans., 1977) (5th ed., J. Hoffmeister ed., 1952). See generally AXEL HONNETH, THE STRUGGLE FOR RECOGNITION (1995); ROBERT R. WILLIAMS, RECOGNITION (1992). For an excellent discussion of recognition and its relationship to contemporary controversies on campus, see Charles Taylor, The Politics of Recognition, in MULTICULTURALISM AND "THE POLITICS OF RECOGNITION" 25-73 (Amy Guttmann ed., Princeton University Press, 1992). back
  30. In Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the Supreme Court ruled that the First Amendment did not protect "insulting or 'fighting' words," which it defined as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." I defend a limited version of theChaplinskydoctrine in Righting the Balance, supra note *, Part IV.A back
  31. A 1989 incident at Arizona State University provides a dramatic example of all of these offenses. A fight started between a black student, Toby Wright, and a white fraternity member, Sean Hedgecock, after Hedgecock allegedly said, "Fuck you, nigger." Two dozen fraternity members then emerged from their house and surrounded Wright and two other blacks, chanting racial slurs. The fight was broken up by police, who alleged that Hedgecock continued to shout epithets and threatened to "get those niggers and kill them." Later that night, Hedgecock saw two other black students and shouted, "Those are the niggers! They're back!" Several hundred people then flooded out of nearby fraternity houses and surrounded the blacks, watching while a group of white fraternity members beat them up. The incident is recounted in Jon Wiener,Words That Wound: Free Speech for Campus Bigots?, 250 THE NATION 272 (Feb. 26, 1990). back
  32. Of course, this is a central theme of the critical-race-theory literature on hate speech. See, e.g.,MATSUDA ET AL., supranote 28; see also CATHARINE A. MACKINNON, ONLY WORDS (1993) (arguing that hate speech, pornography, and racial and sexual harassment constitute denials of equality. On the right to equality within the rights-based theory, see Heyman, Hate Speech,supra note 29, at lviii-lix. back
  33. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). back
  34. See Heyman, Hate Speech, supra note 29, at xliii-xlvi. back
  35. For the Skokie litigation, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.), cert. denied, 439 U.S. 916 (1978); Village of Skokie v. National Socialist Party of America, 373 N.E.2d 21 (Ill. 1978). The controversy generated a rich and extensive literature.See, e.g., LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA (1986); DONALD DOWNS, NAZIS IN SKOKIE: FREEDOM, COMMUNITY, AND THE FIRST AMENDMENT (1985); ARYEH NEIER: AMERICAN NAZIS, THE SKOKIE CASE, AND THE RISKS OF FREEDOM (1979); Raphael Cohen-Almagor, Harm Principle, Offense Principle, and the Skokie Affair,41 POLITICAL STUDIES 453 (1993), reprinted in HATE SPEECH AND THE CONSTITUTION, supra note 28, at 277-94; Daniel A. Farber, Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan, and the Enduring Significance of Cohen v. California, 1980 DUKE LAW JOURNAL 283. back
  36. MEIKLEJOHN, supra note 18, at 69-70. back
  37. For the latter argument, see BOLLINGER, supra note 35. back
  38. One useful way to explore this question is to ask whether we believe that it is actually desirable that such views be publicly expressed, in the sense that the values underlying free speech and other rights are best served if those who hold such views openly express them, rather than keeping those views to themselves. Meiklejohn, for example, argues that if political views are "responsibly entertained by anyone, we, the voters, need to hear them"; such views "must be expressed, not because they are valid, but because they are relevant." MEIKLEJOHN, supra note 18, at 28. Mill discusses the search for truth in similar terms. MILL,supra note 20, at 43-44. It seems highly doubtful, however, that we would apply this position to public hate speech. Instead, we would be more likely to say that such speech is so inconsistent with the respect owed to others and with the requirements of reasonable discussion that it is improper to introduce it into public discourse, regardless of whether there is a right to do so. We would regard the disappearance of hate speech as a gain rather than a loss for public discussion. If this is true, then it is clear that the value of public hate speech does not outweigh the injuries it causes. back
  39. An example is provided by the facts of Brandenburg v. Ohio, 395 U.S. 444 (1969), in which a dozen Klansmen gathered on private party to burn crosses and make racist and anti-Semitic speeches. back
  40. For a similar position, see Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, in MATSUDA ET AL., supra note 28, at 40-41. back
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