Vol. 10 No. 4 (April 2000) pp. 277-280.

HATE SPEECH, PORNOGRAPHY, AND THE RADICAL ATTACK ON FREE SPEECH DOCTRINE by James Weinstein. Boulder, Colorado: Westview Press, 1999. 282 pp. Cloth $75.00. ISBN 0-8133-2708-3. Paper $25.00. ISBN 0-8133-2709-1.

Reviewed by Donald A. Downs, Department of Political Science, University of Wisconsin, Madison.

It was not until the 1960s that the United States Supreme Court began to truly liberalize the constitutional jurisprudence of free speech. Today, virtually no country enjoys the degree of expressive freedom afforded individuals and groups in the United States, especially in such areas as racist rhetoric, libel and slander, campaign and electoral speech, advocacy of lawless action and violence, and, to a lesser extent, sexually explicit expression.

Conservatives have often objected to the liberal model of neutrality. But recent decades have witnessed a new attack, stemming from the Left. This attack was foreshadowed by Herbert Marcuse's famous 1965 essay, "Repressive Tolerance." Flouting the conventional wisdom (inspired by John Stuart Mill and Justice Holmes) that linked free speech and historical progress, Marcuse declared that a neutral speech policy cannot contribute to social progress and justice because the marketplace of ideas is rigged in favor of the repressive status quo. To achieve true progress, speech policy must balance the scales by disfavoring socially and politically regressive speech. Thus was the notion of "progressive censorship" born.

Marcuse's plea went largely unheeded at first, perhaps because the Left needed all the support it could get from the First Amendment during the tumultuous 1960s and early `1970s. However, beginning with the famous Skokie case in 1977-8 (in which a Nazi party won its right to march in a town inhabited by many Holocaust survivors), progressive reformers began to seriously question the wisdom of protecting the speech that ethical people hate. By the 1980s, what James Weinstein calls the "radical attack on free speech doctrine" had emerged. While this attack has yet to influence First Amendment doctrine per se, it has rattled the world of scholarship and public discourse, and left its mark upon such policies as sexual and racial harassment in the workplace, domains which the Supreme Court has thus far left largely outside of the First Amendment's purview.

Weinstein focuses on the two most prominent radical attacks: critical race theory, and the anti-pornography feminist movement. Critical race theorists (Charles Lawrence, Mari Matsuda, Richard Delgado, and others) advocate reorienting First Amendment doctrine in order to permit greater restrictions on various forms of hate speech. They claim that hate speech causes psychological harm to individuals, and that its presence in society reinforces the racist status quo. Such anti-pornography feminists as Catherine MacKinnon make similar

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arguments about pornography, the very existence of which they allege constitutes subordination, discrimination, and defamation of women as a class. Though Weinstein's portrayal of these schools of thought is not particularly pathbreaking or original, it is accurate and fair.

Radical critics also challenge First Amendment doctrine on a broader plane. In their eyes, the cardinal free speech principle of government neutrality toward speech is a myth. "The claim that free speech doctrine is so pristinely neutral is, according to these critics, a lie. To the contrary, free speech doctrine is, in their view, biased against minorities" (p. 3). Neutrality is a myth, critics assert, for three basic reasons: (1) hate speech and pornography serve the underlying racism and sexism of American society; (2) when powerful groups (government, business) require exceptions to speech to support their interests (e.g., laws concerning plagiarism, copyright, intellectual property, disrespectful utterances to judges or teachers, conspiracy, official secrets, trade secrets, etc.), free speech doctrine
obliges; (3) resources are unequally allocated in society, so only the powerful are really heard.

Weinstein answers these claims, though he pays most attention to the first two. He points out that the exceptions mentioned above are widely acceptable on grounds that have little or nothing to do with the content of the expression; they are limited to "contexts not dedicated to public discourse" (p. 72). More importantly, he demonstrates that the claim that free speech doctrine is on balance harmful to minorities is considerably overstated. His critique deserves close consideration because of its fairness, thoroughness, and the sharpness with which it dissects the claims of radical critics and their supporters, including Cass Sunstein and Owen Fiss.

In the first part of the book, Weinstein presents an overview of modern free speech doctrine. His analysis in Chapter 2 of the basic justifications and theories of free speech is pretty standard fare, but his ensuing discussion in this chapter of how the forging of modern doctrine in the `60s and thereafter was a response to the widespread censorship of the preceding era is noteworthy. Weinstein's historical perspective is an updating of David Rabban's (1997) pathbreaking analysis of a similar process in the aftermath of World War I, in which such liberals as Holmes, Louis Brandeis, Roger Baldwin, and John Dewey reacted to the suppression of dissenting speech during World War I by championing civil liberties. In Weinstein's story, however, the liberals prevail.

Radical critics "ignore or trivialize the fact that current doctrine is largely a product of the failure of early cases to protect against governmental suppression of radical ideology at turbulent times in our nation's history" (p. 16). This conclusion is buttressed by Weinstein's deft analysis of the complex relationship between free speech and equality in Chapter 6, in which he repudiates the claim that free speech doctrine has essentially ignored minorities. "The claim that the courts 'invariably
construed the First Amendment' against the civil rights movement is ... a gross misstatement of knowable and verifiable fact" (p. 117). In fact, the civil rights movement and other advocates of social change took advantage of the liberalization of free speech to further their causes.

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Chapter 3 is a useful analysis of the nature and mechanics of modern doctrine. After canvassing the basic rules, Weinstein distills this labyrinthine realm into three fundamental criteria. Speech is most protected by courts when: (1) it is on a matter of public concern; (2) it occurs in a setting or medium dedicated to public discourse (public forum, newspaper, Internet, etc.); (3) when the law or government action "raises or dispels suspicion that it has been enacted for some purpose contrary to core speech values" (e.g., viewpoint discrimination) (p. 49). In Chapter 5 he shows that these principles permit only narrowly defined restrictions on hate speech and obscenity/pornography, not the broad restrictions that radical theorists desire. For example, Title VII's prohibition of sexual and racial harassment
in workplaces is consistent with modern doctrine, as are certain restrictions of unwanted exposure to hostile speech in private or face-to-face contexts.

Such critics as Lawrence and MacKinnon charge that modern doctrine's protection of hate speech and pornography unduly compromises the equal protection values of the Fourteenth Amendment. Weinstein responds that this is often a false dichotomy, except in limited circumstances. First, the Fourteenth Amendment is a restriction on the state, not private action, so most forms of hate speech and pornography do not involve the equal protection clause. More importantly, there is no evidence that the general presence of hate speech and pornography in public discourse (as opposed to their being targeted directly at individuals) contributes to inequality and discrimination. And even if equality has been enshrined as the preeminent constitutional value (as Fiss has argued), this hardly means that we should
grant it a special privilege against being attacked in public debate. "In failing to suspend the normal free speech rules for hate speech and pornography, free speech doctrine does not discriminate against Equal Protection Clause values. Rather, free speech doctrine merely fails to give equality special immunity from the rough-and-tumble of public discourse" (p. 90).

The last chapters of the book deal with the pros and cons of modifying speech doctrine along the lines advocated by the radical critics. Weinstein informs his reasoning by the assumption that "free speech doctrine is more a product of experience than theory"-an understanding no doubt related to Weinstein's appreciation of history and his own experience as a civil liberties lawyer (he is also a professor of law at Arizona State University). He argues that critics overstate the benefits of excluding hate speech and pornography from public discourse, and that the costs would be substantial. Racist rhetoric is "already extremely marginalized" (p. 138). Experience has shown that such restrictions often lead to unintended consequences. For example, government has too often used new powers of censorship against groups that the supporters of these powers want to protect. Pornography seems to be a different matter, for, unlike racist speech, it less obviously involves
public discourse. But the history of censorship of pornography is intimately linked to the censorship of art and literature, where "it is much more likely" that government is acting "for some reason that the First Amendment forbids" (p. 179).

The fact that Weinstein shows due respect for his foes makes his argument all the more powerful, as does the way he

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patiently dissects the positions with which he disagrees. (A lengthy appendix deals evenly with the extensive empirical literature on the effects of pornography.) The book will enhance any reader's understanding of free speech. And Weinstein even offers something for radical critics of free speech: an opportunity to develop stronger arguments by dealing with the weaknesses he so tellingly exposes.

REFERENCE:

Rabban, David. 1997. FREE SPEECH IN ITS FORGOTTEN YEARS. Cambridge: Cambridge
University Press.