PORNOGRAPHY AND HATE SPEECH JUSTIFY RESTRICTING SPEECH

PORNOGRAPHY AND HATE SPEECH JUSTIFY RESTRICTING SPEECH

1. PORNOGRAPHY IS NOT PROTECTED SPEECH BECAUSE IT DESTROYS EQUALITY

Kent Greenfield , Law Clerk on the United States Court of Appeals for the First Circuit, AMERICAN UNIVERSITY LAW REVIEW, Spring 1994, p. 1214-1215.

MacKinnon analogizes pornography to speech made actionable as sexual harassment or racial discrimination, speech which, she says, has only recently been considered to have First Amendment implications. Discrimination law, she points out, considers racist or sexist expression to be evidence of the mental intent necessary to make discrimination a civil rights violation. "[B]ecause of their mental location and content, these words are not only potentially discriminatory in themselves; they are part of the proof that other acts are discriminatory." Indeed, "[u]nder discrimination law, such expression is not political opinion; it is a smoking gun." MacKinnon argues that the oft-asserted reasons why pornography is protected speech -- the autonomy of the speaker, the mental intermediation, the nonneutrality of its regulation -- do not explain why pornography is protected and words that constitute sexual and racial discrimination are not. Her best explanation for the apparent inconsistency is that equality is "crucially guaranteed" in the workplace and not elsewhere. MacKinnon would extend the influence of the equality norm to speech issues in society at large because the harm of sexist and racist speech does not stop at the office door or factory gate. "Racial and sexual harassment," she says, "promote inequality, violate oppressed groups, work to destroy their social standing and repute, and target them for discrimination from contempt to genocide."

Christopher M. Schultz, JD Candidate, ARIZONA LAW REVIEW, Summer 1999, p. 578.

Given the Supreme Court's current high-low speech distinction framework, anyone arguing that a given speech act should be limited based on its content must be prepared to argue that the speech in question falls within one of the historically accepted categories of low value speech or constitutes a new category of low value speech, neither of which is an easy thing to do. Nonetheless, so-called "traditional" antipornography arguments attempt to do just that by claiming that far from being high value speech, pornography is qualitatively of low value and hence regulable. Feminist approaches to pornography regulation, on the other hand, often avoid the traditional approach in favor of other, more "novel" arguments. Such is the case with Catharine MacKinnon's work in Only Words. According to MacKinnon, pornography can be restricted if, traditional arguments notwithstanding, it really is not primarily an act of expression at all, and hence neither falls into the category of high or low value speech.
3. PORNOGRAPHY OUGHT BE RESTRICTED IN FAVOR OF COMPETING SOCIAL VALUES

EveLyn Oldenkamp, J.D. 1997, University of Oregon School of Law, DUKE JOURNAL OF GENDER LAW AND POLICY, Spring 1997, p. 178-179

The promotion of the free exchange of ideas and opinions is seen as essential to the pursuit of truth. Unfortunately, certain forms of expression serve to lock out some groups from the free market of ideas. The consequence of a university's blind devotion to free speech as being essential to academic freedom is that it deprives groups often already excluded from academic discourse of a meaningful response to "speech" that makes their educational environment hostile or offensive. These groups are silenced and consequently, the richness and diversity of the academic dialogue is decreased rather than increased. What is created is only one version of the truth. If we continue to hold as inviolable the free expression of all and any ideas in any setting in an academic context, then "we see melancholy effects resulting from establishments which in theory promise none but happy results." Pornography has been recognized to have an adverse impact on women. It silences them, runs them out of jobs, and removes important opportunities. As previously discussed, the First Amendment protects pornography as a form of freedom of expression, however, the First Amendment status of pornography will not create a barrier to the university grievance mechanisms proposed here. Free speech would be only slightly limited in comparison to the harm that would be prevented. The possibility that a student may be punished for viewing pornography in the university computer center creates a minor limitation upon students' freedom of expression. This cost is insignificant and the benefit is large: it removes barriers to many students' freedom to learn.

HATE SPEECH DOES NOT DESERVE PROTECTION

1. RACIST HATE SPEECH SILENCES, THEREFORE HURTING FREE SPEECH

Alice K. Ma, J.D. candidate at Boalt Hall School of Law, University of California, Berkeley, CALIFORNIA LAW REVIEW, March 1995, p. 704-705.

They [college students] are especially vulnerable since they may be far from home and in an environment much different from the inner cities, Asiatowns, and barrios where they may have grown up. Many students are forging an identity, developing new ties, and redefining their relationship with the world around them. When minority students are faced with the shock and stress of hate speech - whether directed at them or at others of their race, perhaps friends or relatives - passivity, reticence, and self-imposed anonymity are too often the result. Hate speech silences both physically, through intimidation and threats of further harassment or actual violence, and spiritually, by demoralizing its victims. Charles Lawrence has perhaps best described the silencing effects of hate speech. In arguing that face-to-face racial insults - "fighting words" - can be constitutionally penalized, Lawrence notes that being called a "nigger" is like being slapped in the face. The injury is instantaneous, allowing no time for either reflection on the idea conveyed or responsive speech. He writes, "Assaultive racist speech functions as a preemptive strike. The racial invective is experienced as a blow, not a proffered idea, and once the blow is struck, it is unlikely that dialogue will follow."

Alice K. Ma, J.D. candidate at Boalt Hall School of Law, University of California, Berkeley, CALIFORNIA LAW REVIEW, March 1995, p. 705.

Lawrence argues that women and minorities often find themselves speechless in the face of discriminatory insults for a number of reasons. First, the "visceral emotional response to personal attack precludes speech.... Fear, rage, shock, and flight all interfere with any reasoned response.... Many victims do not find words of response until well after the assault when the cowardly assaulter has departed." Second, speech is often an inadequate response given the preemptive nature of racial insults. "When one is personally attacked with words that denote one's subhuman status and untouchability, there is little (if anything) that can be said to redress either the emotional or reputational injury." Third, "the fighting words doctrine presupposes an encounter between two persons of relatively equal power who have been acculturated to respond to face-to-face insults with violence." In many cases, however, a minority student will be confronted by more than one attacker, and, by dint of sheer numbers, silence is the safer option.
3. HATE SPEECH HAS NO SOCIALLY REDEEMING VALUE

Nicholas Wolfson, Professor of Law at the University of Connecticut, UNIVERSITY OF CINCINNATI LAW REVIEW, 1991, p. 1-2.

A considerable body of persuasive legal literature is supporting the thesis that racist or sexist hate speech should receive reduced or even no protection under the First Amendment. The arguments are coherent and powerful. The empirical premises for the new First Amendment theory are first, the scientific falsity of explicit or implicit racial or sexual stereotyping, and second, the harm such speech does to the victim. The person who is called "kike," "nigger," or "fag," suffers emotional humiliation and personal loss of dignity. The victim feels threatened, humiliated, and diminished. He or she may suffer temporary or permanent psychological harm. Further, such expression tears the weave of the community in which the speech is made, breaks down civil discourse and incites weak-minded onlookers to similar thoughts and words. Finally, the ideational content of the utterance is minimal. The traditional civil-libertarian response is predictable. The First Amendment is designed to protect disgusting speech from the censorship of government. The offensiveness of the speech in question is never a reason for removing it from protection of the First Amendment. There are the usual exceptions -- e.g., fighting words, obscenity, defamation, speech too closely "brigaded" with forbidden conduct -- but otherwise the government must be viewpoint neutral. At this point, critics of the traditional discourse ask the cogent question, why should racist speech, which all enlightened men and women will admit is based upon false premises, be permitted? The factual assumptions underlying hate speech are to the effect that blacks or Jews or women are inferior, stupid, greedy, or inherently violent. Both critics and traditionalists in the civil liberties community agree that the assumptions are false.