Must We Defend Nazis?

Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment

Richard Delgado
Jean Stefancic
Copyright Date: 1997
Published by: NYU Press
Pages: 238
https://www.jstor.org/stable/j.ctt9qfg4k
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  • Book Info
    Must We Defend Nazis?
    Book Description:

    In Must We Defend Nazis?, Richard Delgado and Jean Stefancic set out to liberate speech from its current straight-jacket. Over the past hundred years, almost all of American law has matured from the mechanical jurisprudence approach--which held that cases could be solved on the basis of legal rules and logic alone--to that of legal realism--which maintains that legal reasoning must also take into account social policy, common sense, and experience. But in the area of free speech, the authors argue, such archaic formulas as the prohibition against content regulation, the maxim that the cure for bad speech is more speech, and the speech/act distinction continue to reign, creating a system which fails to take account of the harms speech can cause to disempowered, marginalized people. Focusing on the issues of hate-speech and pornography, this volume examines the efforts of reformers to oblige society and law to take account of such harms. It contends that the values of free expression and equal dignity stand in reciprocal relation. Speech in any sort of meaningful sense requires equal dignity, equal access, and equal respect on the parts of all of the speakers in a dialogue; free speech, in other words, presupposes equality. The authors argue for a system of free speech which takes into account nuance, context-sensitivity, and competing values such as human dignity and equal protection of the law.

    eISBN: 978-0-8147-4420-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-x)
  4. Acknowledgments
    (pp. xi-xiv)
  5. Part I The Opening Salvo:: Naming the Harm
    • 1 Words That Wound How Racist Hate Speech Harms the Victim. Law’s Earliest Responses
      (pp. 3-26)

      Not long ago, inContreras v. Crown Zellerbach, Inc.,¹ the Washington Supreme Court held that a Mexican American’s allegations that fellow employees had subjected him to a campaign of racial abuse stated a valid claim against his employer for the tort of outrage. The plaintiff alleged that he had suffered “humiliation and embarrassment by reason of racial jokes, slurs and comments”² and that the defendant’s agents and employees had wrongfully accused him of stealing the employer’s property, thereby preventing him from gaining employment and holding him up to public ridicule. Focusing on the alleged racial abuse, the court declared that...

    • 2 Pornography and Harm to Women How Even Social Scientists Have Sometimes Failed to See the Need for Relief
      (pp. 27-38)

      As has happened with racist speech and insult, reformers have been advocating curbs on hard-core pornography. The impetus comes primarily from two camps: religious fundamentalists who argue against pornography on moral grounds, and many radical feminists who are concerned over the way it injures and degrades women. In this chapter, we shall be concerned with responses to the feminist attack on pornography, although some of what we say may hold true as well with the fundamentalist one.

      As with media and face-to-face racism (see chapters 1, 4, 5, and 9), pornography has begun to be named and attacked by reformers,...

  6. Part II The Assault on the Citadel:: Legal Realism Shakes Up Orthodoxy
    • 3 First Amendment Formalism Is Giving Way to First Amendment Legal Realism
      (pp. 41-45)

      In the last few years observers have noticed a sharp upsurge in intellectual activity surrounding the role of speech and expression. Reformers have been demonstrating how hate speech and pornography injure minorities and women. Postmodernists have been pointing out how every speech controversy can be approached in at least two ways. (See chapter 4.) At the same time, defenders of tradition such as the ACLU and other free-speech absolutists have been writing books and articles defending an unfettered First Amendment,¹ to which yet other observers such as Jack Balkin reply: they are caught up in “ideological drift”—failure to notice...

    • 4 Campus Anti-Racism Rules: Constitutional Narratives in Collusion Or, Why There Are Always Two Ways of Looking at a Speech Controversy
      (pp. 46-69)

      Over the past few years, more than two hundred university and college campuses have experienced racial unrest serious or graphic enough to be reported in the press. Most observers believe the increase in racial tension on the nation’s campuses is real, and not just the product of better reporting or record keeping.¹

      In response, a number of campuses have enacted student conduct rules prohibiting slurs and disparaging remarks directed against persons on account of their ethnicity, religion, or sexual orientation. A University of Wisconsin rule, for example, prohibited remarks that are directed to an individual; demean due to one’s membership...

    • 5 Images of the Outsider Why the First Amendment Marketplace Cannot Remedy Systemic Social Ills. Social Science and Narrative Theory Are Questioning Faith in the Freemarket of Ideas
      (pp. 70-92)

      Conventional First Amendment doctrine is beginning to show signs of strain. Outsider groups and women charge that free-speech law protects them inadequately against certain types of harm. On a more theoretical level, some scholars are questioning whether free expression can perform the lofty functions of community building and consensus formation that society assigns to it.¹

      We believe that in both situations the source of the difficulty is the same: failure to take account of the ways language and expression work. The results of this failure are more glaring in some areas than others. Much as Newtonian physics enabled us to...

  7. Part III Retreat to Policy Analysis:: “Even if What the Crits Say Is So …”
    • [Part III Introduction]
      (pp. 93-94)

      In the wake of three recent decisions, one by the United States Supreme Court dealing with punishment for hate crimes, two by the Canadian Supreme Court upholding limitations on pornography and hate speech, interest in campus anti-racism measures has revived. In the late 1980s, a number of U.S. campuses had responded to a wave of racist incidents by enacting student conduct codes forbidding certain types of racist expression. Then, federal courts struck down codes that were in effect at two Midwestern universities. A short time later, the Supreme Court invalidated a St. Paul, Minnesota, hate-speech ordinance under which a white...

    • 6 Paternalistic Arguments against Hate-Speech Rules: Pressure Valves and Bloodied Chickens. The Liberals’ Response to the Crumbling of Certainty
      (pp. 95-108)

      The dominant legal paradigm’s resistance to change is not the only obstacle that hate-speech rule advocates confront: what we callpaternalisticobjections are deployed as well.¹ These arguments all urge that hate-speech rules would harm their intended beneficiaries, and thus, if blacks and other minorities knew their own self-interest, they would oppose them. Often the objections take the form of arguing that equality and liberty are not in conflict, since by protecting speech one is also protecting minorities² (even though they may not realize it). Our decision to focus on paternalistic objections is sparked by more than mere theoretical interest....

    • 7 The Toughlove School: Neoconservative Arguments against Hate-Speech Regulation. (“I Just Let It Roll Off My Back”)
      (pp. 109-121)

      InBabette’s Feast,¹ the French housekeeper for two dour Protestant sisters living in a remote Danish village where life is hard decides to mark her fourteenth year of working in this repressed environment by preparing a huge feast. Using money she has just won from the French lottery, she imports turtles, quail, and the finest wines and serves them at a long table to the sisters and their congregation. But she has not counted on the experience’s novelty: until now, the God-fearing folks gathered at her table have not touched a drop of liquor or eaten anything other than dried...

    • 8 “But America Wouldn’t Be America Anymore” The Experience of Other Countries Shows That Adopting Hate-Speech Rules Would Not Cause the Sky to Fall; America Would Be Even More American
      (pp. 122-132)

      To this point, we have argued that hate speech of all kinds (including hard core pornography) is socially pernicious, with few redeeming qualities. We have also shown that the emerging conception of the First Amendment allows regulation, and that no policy argument stands in the way of it. Sometimes, however, one hears vague references to other societies that have prohibited racist or sexist hate speech, with ill effects.

      Now, at last, it is possible to examine these claims. In April 1991, ARTICLE 19, a London-based international organization devoted to freedom of expression and the press, held a three-day conference at...

  8. Part IV “From Where I Sit”—The Special Problems of Judges and Progressive Lawyers
    • 9 Hateful Speech, Loving Communities Why Judges Are Sometimes Slower than Others at Seeing the Need for Reform
      (pp. 135-148)

      As we mentioned earlier, the debate about hate speech features two camps, each of which views the controversy in quite different terms.¹ One group, on learning about a proposed hate-speech code, immediately declares the proposal a free speech question. If one places speech at the center in this fashion, a number of things immediately follow. The civil rights advocates are immediately placed on the offensive, seen as aggressors attempting to curtail a precious liberty. The burden shifts to them to show that the speech restriction is not content-based, is supported by a compelling interest, is the least restrictive means of...

    • 10 “The Speech We Hate” The Romantic Appeal of First Amendment Absolutism. Does Defending Nazis Really Strengthen the System of Free Speech?
      (pp. 149-162)

      InThe Brothers Karamazov, Alyosha, an impressionable young man, visits his mother’s grave, where he has an intense religious experience.¹ Transformed, he declares “I want to live for immortality, and I will accept no compromise.”² Having discovered God—the most important thing in life—nothing else matters to Alyosha. He enters a monastery, devotes himself single-mindedly to his spiritual mentor Father Zossima, prays fervently, counsels the young, rescues animals, and effects a reconciliation between feuding schoolboys before the death of one of them.

      In many respects, certain free speech absolutists (such as the ACLU) remind us of Alyosha. Until recently,...

  9. Notes
    (pp. 163-216)
  10. Index
    (pp. 217-224)
  11. Back Matter
    (pp. 225-225)