Untimely Observations

Elena Kagan: Professor "Hate Crime"

Elena Kagan became Dean of Harvard Law School without issuing much of a paper trail. She has, however, written extensively on the subject of "hate speech." Take these passages, for instance, from her 1993 article in the Chicago Law Review, "The Regulation of Hate Speech and Pornography after R.A.V." (Vol. 60, number 3/4, summer - autumn 1993).

Here's her argument boiled down to its essence: Kagan supports the idea of banning speech she doesn't like (particularly if it "perpetuates and promotes [racial and gender] inequality"); however, she realizes that if you do this, it makes you look like you some 1st Amendment-disrespecting tyrannt ("viewpoint discrimination"). She thus suggests labeling speech she doesn't like as "harmful," "fighting words," or as not a "contribution to social deliberation" in order to help usher in a more equitable society through government censorship.

How long before the Feds go after AltRight?

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation. [...]
The question I pose is whether there are ways to achieve at least some of the goals of the anti-pornography and anti-hate speech movements without encroaching on valuable and ever more firmly settled First Amendment principles. [...]
In R.A.V., the Court struck down a local ordinance construed to prohibit those fighting words, but only those fighting words, based on race, color, creed, religion, or gender.2 Fighting words long have been considered unprotected expression-so valueless and so harmful that government may prohibit them entirely with- out abridging the First Amendment.3 Why, then, was the ordi- nance before the Court constitutionally invalid? The majority rea- soned that the ordinance's fatal flaw lay in its incorporation of a kind of content-based distinction. The ordinance, on its very face, distinguished among fighting words on the basis of their subject matter: only fighting words concerning "race, color, creed, religion or gender" were forbidden.4 More, and much more nefariously in the Court's view, the ordinance in practice discriminated between different viewpoints: it effectively prohibited racist and sexist fighting words, while allowing all others.5 Antipathy to such view- point distinctions, the Court stated, lies at the heart of the guaran- tee of freedom of expression. "The government may not regulate [speech] based on hostility-or favoritism-towards the underlying message expressed"; it may not suppress or handicap "particular ideas. [...]
Those who have criticized the courts for using the viewpoint neutrality principle against efforts to regulate pornography or hate speech usually have offered one of two arguments. First, some have claimed that such efforts comport with the norm of viewpoint neu- trality because they are based on the harm the speech causes, rather than the viewpoint it espouses.17 Second, and more dramati- cally, some have challenged the norm itself as incoherent, worth- less, or dangerous.l8 Both lines of argument have enriched discus- sion of the viewpoint neutrality principle, by challenging the tendency of such discussion to do nothing more than apotheosize. Yet both approaches, in somewhat different ways, slight the rea- sons and values underlying current First Amendment doc- trine-including the decisions in R.A.V. and Hudnut. The claim that pornography and hate-speech regulation is harm-based, rather than viewpoint-based, has an initial appeal, but turns out to raise many hard questions. The claim appeals pre- cisely because it reflects an understanding of the value of a viewpoint neutrality norm and a desire to maintain it: if pornography and hate-speech regulation is harm-based, then we can have both it and a rule against viewpoint discrimination. [...]
The four approaches are, in order: (1) the enactment of new, or the stricter use of existing, bans on conduct; (2) the enactment of certain kinds of viewpoint-neutral speech restrictions; (3) the enhanced use of the constitutionally unprotected category of obscenity; and (4) the creation of carefully supported and limited exceptions to the general rule against viewpoint discrimination. [...]
In accord with this reasoning, communities should be able not only to impose enhanced criminal sanctions on the perpetrators of hate crimes, but also to provide special tort-based or other civil remedies for their victims. [...] Civil actions involve fewer procedural safeguards for the defendant, including a much reduced standard of proof; as important, they may give greater control to the victim of the unlawful conduct than a criminal prosecution ever can do. Communities therefore should consider not merely the enactment of hate crimes laws, but also the provision of some kind of "hate torts" remedies. [...]
But even if this distinction holds, the hard question remains: should the Court accept pornography or hate speech as a low-value category of expression? The currently recognized categories of low value speech seem to share the trait, as Cass Sunstein writes, that they are neither "intended [nor] received as a contribution to social deliberation about some issue." That definition offers several lessons for any regulation, concededly based on viewpoint, either of hate speech or of pornography. In the case of hate speech, such an ordinance should be limited to racist epithets and other harassment: speech that may not count as "speech" because it does not contribute to deliberation and discussion. [...]
I have suggested in this Essay that the regulatory efforts that will achieve the most, given settled law, will be the efforts that may appear, at first glance, to promise the least. They will be directed at conduct, rather than speech. They will be efforts using viewpoint-neutral classifications. They will be efforts taking advantage of the long-established unprotected category of obscenity. Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving. They, and other new solutions, ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment.