Offensive is not Enough: Hate Speech, Free Speech, and the Free Circulation of Ideas

Abstract

This article interrogates the boundaries of the legal debate around hate speech in the U.S..  It departs from the argument that too often conversations about and against hate speech safely put the speakers on the right side of a divide: scholars and intellectuals critique and condemn discourses of hatred against minorities and disenfranchised communities, denouncing the violent speech and the anger of the powerful against the powerless. But both hatred and anger are central emotional qualities of the human mind, and in fact, we sometimes celebrate the rightful anger of the oppressed and of activists in the process of achieving justice and equality.

Free speech is a fundamental right sanctioned by the First Amendment of the US Constitution, stemming from the argument that the protected circulation of “more speech”, regardless of how disturbing or uncomfortable it may be, is in any case a healthy antidote to totalitarianism and censorship and that it is instrumental in the development of a civil society. Nonetheless, in some rare cases, the Courts have defended their authority to regulate it. Focusing on some landmark cases from the cultural history of the U.S. Supreme Court’s decisions, this article explores the intellectual premise that a democratic state should never limit speech on the basis of its content, but rather on the careful evaluation of its mode of production and its concrete consequences. This article offers an exploration into the significance of free speech regulation, and into the blurred space between speech and action, for our contemporary understanding of hate speech in an increasingly polarized and compartmentalized public sphere.