Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine

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Westview Press, 1999 - Law - 282 pages
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Does American free speech doctrine discriminate against women and minorities? In Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine, James Weinstein carefully examines the charge that in interpreting the First Amendment as protecting hate speech and pornography while allowing myriad other exceptions to free speech, American courts have privileged the interests of the rich and powerful over the interests of women and people of color. The author concludes that while free speech doctrine is not in any deep sense as neutral as some of its apologists believe, the claim that free speech decisions and principles systematically discriminate against women and minorities does not withstand scrutiny. He shows that this claim of discrimination is based upon a profound but widely shared misunderstanding of the actual workings of free speech doctrine.In order to expose this misunderstanding, the first section of the book thoroughly explores the basic cases and principles upon which free speech doctrine is built. The second section demonstrates that the relationship between free speech and equality is far more complex than either radical critics or many liberal defenders of doctrine suppose. The third section considers the cost and benefits of modifying free speech doctrine to allow for the suppression of hate speech and pornography. After reviewing the experience of hate speech and pornography in other democracies, Weinstein concludes that while such a modification would not lead straight to totalitarianism as alarmist defenders of current doctrine contend, it would nonetheless likely inhibit legitimate debate and artistic expression. Also contrary to dogmatic defenders of current doctrine, the author concludes that although the scientific evidence that pornography causes violence to women is not nearly as conclusive as radical feminists assert, this evidence is nonetheless cause for concern.While offering a scholarly analysis of the radical critique of free speech doctrine, this book has even larger ambition: to provide nonlawyers with the background to participate knowledgeably in the continuing debate about the role of free speech in a democratic society.
 

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Contents

Part i
3
Modern Free Speech Doctrine
9
An Overview of Modern Free Speech Doctrine
31
Its Application
51
Part 2
67
The Complex Relationship Between
93
Free Speech as an Antagonist of the Status Quo
104
The Futility of FrontLoaded Approaches
118
Should Doctrine Be Modified
125
The Costs of Regulation
141
In Search of a Confutable Principle
159
Weighing the Costs and Benefits
183
Conclusion
189
Notes
219
Index
269
Copyright

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Page 19 - But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
Page 26 - It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Page 26 - There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
Page 253 - As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy.
Page 173 - If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
Page 22 - In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.
Page 2 - Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
Page 24 - These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.* As we said in Noto v.
Page 18 - States, and whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United Slates, or the Constitution of the United States...

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About the author (1999)

James Weinstein is Amelia Lewis Professor of Constitutional Law at Arizona State University, and has litigated several significant free speech cases.

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