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Hastings Constitutional Law Quarterly

Authors

John T. Bennett

Abstract

Calls for hate speech censorship are largely premised upon the existence of certain social harms, including racial and gender inequalities, which are supposedly reinforced by hate speech. These inequalities, however, could be caused by a host of cultural and behavioral factors completely unrelated to hate speech, racial animus, discrimination, or any structural cause. The causal argument presented here has significant implications for the constitutionality of hate speech regulation. This article directly confronts the constitutional flaws, normative concerns, and empirical weaknesses inherent in a substantial body of hate speech scholarship. This article critically analyzes the legal and sociological premises of hate speech censorship from a perspective that is rarely included within the intensifying debate over hate speech. Specifically, this article explores social harm within the framework of four salient First Amendment barriers to censorship: the Supreme Court's recent decision in Snyder v. Phelps; the constitutional standard of strict scrutiny; the strong institutional rationale for judicial skepticism of governmental speech regulation; and the First Amendment requirement that lawless action be imminent in order to justify speech restrictions. Each of these barriers should prove insurmountable to any hate speech regulation proposal, as those proposals are formulated in the extant work. The key empirical premises of hate speech censorship, that speech causes certain social harms and that these harms justify speech restriction, are treated as doctrine within existing scholarship. Liberal hegemony within the academy renders silent criticism of the fundamental ideological premises of hate speech regulation. This article rigorously challenges the reigning doctrine.

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