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Fighting Words

Fighting Words: Individuals, Communities, and Liberties of Speech

Kent Greenawalt
Copyright Date: 1995
Pages: 206
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  • Book Info
    Fighting Words
    Book Description:

    Should "hate speech" be made a criminal offense, or does the First Amendment oblige Americans to permit the use of epithets directed against a person's race, religion, ethnic origin, gender, or sexual preference? Does a campus speech code enhance or degrade democratic values? When the American flag is burned in protest, what rights of free speech are involved? In a lucid and balanced analysis of contemporary court cases dealing with these problems, as well as those of obscenity and workplace harassment, acclaimed First Amendment scholar Kent Greenawalt now addresses a broad general audience of readers interested in the most current free speech issues.

    eISBN: 978-1-4008-2167-9
    Subjects: Philosophy

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-2)
    (pp. 3-10)

    The central subject of this book is freedom of speech, including freedom of the press. I address this subject in light of related themes: (1) the underlying reasons for having free speech; (2) the kinds of communication to which these reasons apply; (3) the significance of constitutional texts for the determination of free speech cases and the development of judicial doctrines; (4) the importance of a country’s legal traditions and broader culture; (5) the degree of deference courts do (and should) give legislatures and executives when they face free speech problems; and (6) the extent to which legislatures and courts...

    (pp. 11-27)

    Canada and the United States are neighbors with much in common, including liberal democratic governments with a commitment to freedom of speech. Yet their constitutional and judicial histories, the language of their free speech clauses in context, their free speech doctrines, and, for some issues, the results of cases differ significantly. These differences reflect yet deeper aspects of culture.

    This chapter compares judicial approaches to free speech in the two countries. I concentrate primarily on the kinds of speech mainly engaged in by extreme dissenters and outsiders. This speech is itself a major concern of constitutional protection, and it has...

  6. Chapter Three FLAG BURNING
    (pp. 28-46)

    This chapter considers highly controversial behavior that lies on the edges of speech: flag burning. Here I closely examine one U.S. Supreme Court case and treat more briefly its immediate successor. The opinions in these cases reflect major free speech doctrines in the United States, and illustrate complexities in their application, complexities obscured by the sort of summary of the law that chapter 2 provides. I address the soundness of the Supreme Court’s decisions in 1989 and 1990 that state and federal laws against flag destruction are unconstitutional under general First Amendment principles, and I inquire whether some exception from...

    (pp. 47-70)

    This chapter, which deals with strong insults and epithets, including “hate speech,” has a number of purposes. After surveying various uses of insulting language, I claim that an important distinction exists between “targeted vilification” and other insults and epithets. I consider reasons that have been thought to justify punishment, or civil recovery, for such speech, and I also address constitutional principles, looking at a number of American cases and important recent constitutional decisions by the Supreme Courts of the United States and Canada. This examination reveals striking differences between the two countries in doctrinal standards and the protection of controversial...

    (pp. 71-98)

    This chapter addresses two particular problems concerning abusive speech: campus speech codes and harassment at work. Thus far, American courts have treated these subjects differently. Is this variation in constitutional assessment appropriate? I discuss campus speech codes and then the law of workplace harassment, offering a few final observations about speech codes.

    Many members of university and college communities believe there has been a dispiriting increase in hostile speech against minorities, women, and gays over the last decade. Some institutions have responded to incidents on their own campuses by adopting speech codes that set limits of acceptable discourse for academic...

  9. Chapter Six OBSCENITY
    (pp. 99-123)

    Perhaps no subject so quickly reveals similarities and differences between the Canadian and U.S. Supreme Courts as the subject of obscenity. In looking at their treatments of this topic, we need to keep in mind three different perspectives. The first perspective concerns the sorts of material that each court holds not to be protected constitutionally. The second concerns the justifications each accepts as a basis for suppression. The third concerns the extent to which doctrinal approaches about obscenity reflect broader constitutional standards.

    In both countries, the nineteenth-century English case ofRegina v. Hicklin¹ represented the law with respect to obscenity...

    (pp. 124-149)

    This chapter shifts ground. It relates actual and possible constitutional decisions to the theme of individuals and communities, asking what difference it makes if courts pay attention to the place of community in human life. The relevance of community has composed part of the background for previous chapters; here I attend to it explicitly. This chapter reexamines in varying detail the topics of the last four chapters—flag burning, hate speech, campus speech codes, workplace harassment, and obscenity. I will also introduce two new topics about free speech in American law that illustrate the central theme—campaign financing and medical...

    (pp. 150-154)

    What general lessons can be distilled from our examination of these various areas of free speech law in the United States and Canada?

    Some have to do with more or less technical aspects of constitutional decision. The U.S. Supreme Court has relied heavily on categorical rules that do not involve deference to legislatures whose statutes trigger the application of those a perfect example. According to the majority’s assumption, the city of St. Paul has restricted only fighting words; and the majority does not deny that the city has chosen to restrict the kinds of fighting words most...

  12. NOTES
    (pp. 155-182)
  13. INDEX
    (pp. 183-189)