Vol. 4 No. 11 (November, 1994) pp. 160-61
HATE SPEECH: THE HISTORY OF AN AMERICAN CONTROVERSY by Samuel
Walker. Lincoln: University of Nebraska Press, 1994. 217pp.
Paper.
Reviewed by James C. Dixon, Department of Political Science,
University of North Carolina at Wilmington.
This well written and interesting book addresses a subject of
importance that has attracted much attention in recent years.
Its thesis, clearly stated in the first chapter is that the
strong commitment in this country to free speech has resulted
from the existence of vigorous and effective advocates. Thus,
hate speech is constitutionally protected because "there has
never been an equally strong and effective advocate for laws
restricting offense speech" (p.15).
In arguing his thesis Walker rejects the position of Gerald
Rosenberg that as a practical matter court decisions have failed
to change social policy. The book is Walker's effort to present
persuasive evidence "that the Court has exerted a powerful
and successful influence on the law, public policy, and public
attitudes" (p.13) and "that the posture of the Court
has been shaped by the arguments of the advocacy groups that
bring cases before it." (p.13) This position was argued by
Joseph F. Kobylka and Lee Epstein in studies of Court decisions
on abortion, the death penalty and obscenity. This study of a
fourth area supports the Kobylka and Epstein position although
written as a history rather than an analytical study.
The reader should be aware of Walker's strong commitment to
libertarian values and to the American Civil Liberties Union
which he served for ten years as a member of the national board
of directors. He also served two years as president of the
Nebraska affiliate of the ACLU, and was an activist in the civil
rights struggle in Mississippi in the 1960s and in the opposition
to the Viet Nam War. Despite this personal commitment Walker has
succeeded in presenting the history of the hate speech
controversies with a reasonable degree of objectivity.
Walker presents his thesis as the answer to three significant
questions regarding the hate speech controversies in this country
between 1920 and the present. First, how and why did public
policy regarding hate speech develop as it did, i.e., why has the
First Amendment been interpreted as it has? Second, why have
American law and policy developed in a very different direction
from the law and policy of virtually every other country? Third,
given the strong tradition of free speech that had developed in
the United States by the 1970s, why did restrictive speech codes
becomes so popular on college and university campuses?
American hate speech policy is said to have developed differently
in this country because civil rights leaders eventually perceived
group libel legislation to be a threat to their goal of advancing
group rights by seeking the expansion of constitutionally
protected individual rights. "Provocative speech was a
crucial weapon for the civil
Page 161 follows:
rights movement and the struggle for racial equality"
(p.160). This left restrictions on hate speech without an
effective advocate, "a virtual orphan in the political
arena" (p. 160).
The spread of restrictive speech codes on college and university
campuses is also explained in terms of Walker's thesis. Campuses
are described as special environments in which the political
context has been the reverse of that prevailing in the larger
society. Unlike the country at large on college campuses
"restrictive codes have been adopted because the idea has a
well-organized coalition of advocates who have faced poorly
organized opposition in defense of an absolutist position on free
speech" (p.16).
Having set forth his thesis and major conclusions in Chapter 1,
Walker follows with six chapters detailing developments relating
to hate speech that occurred in various time periods between 1920
and the present. These chapters "focus on the social context
of intergroup relations, on prejudice and discrimination as a
political issue, and on the various proposals that have arisen
over the years to control hate speech through law" (p.7).
Relevant court cases are discussed as is the context from which
they arose.
The decade 1942-1952 is presented as a key period in the history
of hate speech controversies because "the idea of
restricting hate speech enjoyed a brief moment of favor"
(p.77) for the only time until the rise of support for campus
speech codes in the 1980s. Even though the Supreme Court in
BEAUHARNAIS V. ILLINOIS (1952) upheld a group libel law, the
Court and civil rights groups rejected this approach, and between
1952 and 1978 hate speech was held to be protected by the
Constitution. This protection for hate speech was reconfirmed by
the decision of the Supreme Court in R.A.V. V. ST. PAUL (1992) .
References:
Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT
SOCIAL CHANGE? (University of Chicago Press, 1991). Lee Epstein
and Joseph F. Kobylka, THE SUPREME COURT AND LEGAL CHANGE:
ABORTION AND THE DEATH PENALTY ( University of North Carolina
Press, 1992). Joseph F. Kobylka, THE POLITICS OF OBSCENITY: GROUP
LITIGATION IN A TIME OF LEGAL CHANGE. (Greenwood Press, 1991).
BEAUHARNAIS V. ILLINOIS 343 U.S. 250 (1952) R.A.V. V. ST. PAUL,
112 S. Ct. 2538 (1992)
Copyright 1994