Vol. 5 No. 5 (May, 1995) pp. 156-158
SPEAKING OF RACE SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND
CIVIL LIBERTIES by Henry Louis Gates, Anthony P. Griffin, Donald
D. Lively, Robert Post, William B. Rubenstein, Nadine Strossen
with an introduction by Ira Glasser. New York: New York
University Press, 1994. 299 pp. Cloth $26.95.
Reviewed by Paul Rosen (Carleton University, Ottawa)
Hell knows no fury, it seems, like the heat generated by a
fraternal quarrel -- in this instance, a cohort tactically
divided against itself, while traveling towards a common
anti-racist and civil libertarian millennium. This volume
explains assiduously the gospel of the First Amendment according
to the American Civil Liberties Union. The six essays and
introduction, with three parts by ACLU officers, takes the form
of a riposte and rejoinder to the recent work of a small group of
scholars that includes Catharine Mackinnon, Mari Matsuda, Charles
Lawrence, Richard Delgado and others. They advocate, mainly
through the medium of law reviews, the revision of First
Amendment jurisprudence in order that hate propaganda might lose
its coloration and status as protected speech.
Such is the case, of course, verily in all western democratic
jurisdictions as is noted in passing in tones of regret. The
Amendment is credited by the authors for much that is salubrious
in the United States, and the unlikely prospect of its
reinterpretation along lines drawn by other democracies, is
portrayed as an ominous step leading to the negation of the
genius of the American polity. Thus, Gates fears that the current
debate with the anti-hate dissidents over the acceptable contours
of freedom of speech, means that for this group civil liberties
have become an impediment to civil rights. The thrust of the
argument is that the apostates have been diverted from the common
battle, and now waste both time and resources in trivial
non-sensible efforts to constrict speech rights.
Lively chastens the supporters of speech restrictions and invites
them to submit to a "reality" check insofar as they
mistake the verbal symptoms of racism for the deeper underlying
structural causes. At worse, hate speech is a "marginal
source of stigmatization," and other degradations that law
in any event is ill equipped to deal with. Even the epochal Brown
decision is dismissed as so much legal fluff that has done little
to address historic political wrongs. Why it may be asked given
the over-all constitutional scheme of things, would one be
excessively exercised by a less stringent interpretation of the
First Amendment, if Brown is construed to represent so little
progress over Plessey?
The answer is that the First Amendment is regarded by all as the
most constant and reliable weapon of minorities in their ongoing
struggle for equality and dignity. Restrictions on hate
propaganda merely empowers elites at the expense of the down
trodden. Elites, Lively stresses, cannot be trusted in the first
instance with power, and in the last, minorities face the
greatest risk of being prosecuted for breeching hate speech
ordinances.
Speech, the general panacea and genuine public discourse, Post
argues, is not possible without firm all embracing constitutional
guarantees. His ideal type
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discourse even if rough hewn and obloquial, nonetheless raises
beneficially the level of political consciousness. Unfettered
discourse is the only authentic way to assess ideas including
those that wreak harm. While Post makes a valiant esoteric case
for the critical democratic importance of public discourse, he
concedes only in closing that conditions fostering it in America
are far from ideal.
Perhaps the most insightful essay is that of Rubenstein, who from
the perspective of gay rights, evaluates and compares the
instrumental utility of the speech clause with >