[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]


Marcuse, wer haette das gedacht:

    Weinstein              (fwd)


Category: First Amendment; Hate Speech


ISSN 1062-7421
Vol. 10 No. 4 (April 2000) pp. 277-280.

An Electronic Periodical Published by The Law and Courts Section,
The American Political Science Association
Herbert Jacob, Founding Editor

Richard A. Brisbin, Jr., Editor
Department of Political Science
Box 6317
West Virginia University
Morgantown, WV 26506-6317
E-mail: rbrisbin@wvu.edu

Assistant to the Editor, Heather Starsick
Technical Advisor: Robert D. Duval

The Law and Politics Book Review is published on the LPBR list
from West Virginia University.  This is a moderated list and does
not accept any messages except via the editor. Please send all
comments and questions to Richard Brisbin via E-mail:
rbrisbin@wvu.edu. To subscribe, please send the message: subscribe
LPBR <your name, we do not send posts to aliases> to LISTSERV@WVU.EDU

James Weinstein.  Boulder, Colorado: Westview Press, 1999.  282 pp.  Cloth
$75.00. ISBN 0-8133-2708-3.  Paper $25.00.  ISBN 0-8133-2709-1.

Reviewed by Donald A. Downs, Department of Political Science, University of
Wisconsin, Madison.

        It was not until the 1960s that the United States Supreme Court began to
truly liberalize the constitutional jurisprudence of free speech.  Today,
virtually no country enjoys the degree of expressive freedom afforded
individuals and groups in the United States, especially in such areas as
racist rhetoric, libel and slander, campaign and electoral speech, advocacy
lawless action and violence, and, to a lesser extent, sexually explicit

        Conservatives have often objected to the liberal model of neutrality.
But recent decades have witnessed a new attack, stemming from the Left.  This
attack was foreshadowed by Herbert Marcuse's famous 1965 essay, "Repressive
Tolerance."  Flouting the conventional wisdom (inspired by John Stuart Mill
and Justice Holmes) that linked free speech and historical progress, Marcuse
declared that a neutral speech policy cannot contribute to social progress
justice because the marketplace of ideas is rigged in favor of the repressive
status quo.  To achieve true progress, speech policy must balance the scales
by disfavoring socially and politically regressive speech.  Thus was the
notion of "progressive censorship" born.

Marcuse's plea went largely unheeded at first, perhaps because the Left
needed all the support it could get from the First Amendment during the
tumultuous 1960s and early `1970s.  However, beginning with the famous Skokie
case in 1977-8 (in which a Nazi party won its right to march in a town
inhabited by many Holocaust survivors), progressive reformers began to
seriously question the wisdom of protecting the speech that ethical people
hate.  By the 1980s, what James Weinstein calls the "radical attack on free
speech doctrine" had emerged.  While this attack has yet to influence First
Amendment doctrine per se, it has rattled the world of scholarship and public
discourse, and left its mark upon such policies as sexual and racial
harassment in the workplace, domains which the Supreme Court has thus far
largely outside of the First Amendment's purview.

        Weinstein focuses on the two most prominent radical attacks: critical
race theory, and the anti-pornography feminist movement.  Critical race
theorists (Charles Lawrence, Mari Matsuda, Richard Delgado, and others)
advocate reorienting First Amendment doctrine in order to permit greater
restrictions on various forms of hate speech.  They claim that hate speech
causes psychological harm to individuals, and that its presence in society
reinforces the racist status quo.  Such anti-pornography feminists as
Catherine MacKinnon make similar

Page 278 begins here

arguments about pornography, the very existence of which they allege
constitutes subordination, discrimination, and defamation of women as a
class.  Though Weinstein's portrayal of these schools of thought is not
particularly pathbreaking or original, it is accurate and fair.

        Radical critics also challenge First Amendment doctrine on a broader
plane.  In their eyes, the cardinal free speech principle of government
neutrality toward speech is a myth.  "The claim that free speech doctrine is
so pristinely neutral is, according to these critics, a lie.  To the
free speech doctrine is, in their view, biased against minorities" (p. 3).
Neutrality is a myth, critics assert, for three basic reasons: (1) hate
and pornography serve the underlying racism and sexism of American society;
(2) when powerful groups (government, business) require exceptions to speech
to support their interests (e.g., laws concerning plagiarism, copyright,
intellectual property, disrespectful utterances to judges or teachers,
conspiracy, official secrets, trade secrets, etc.), free speech doctrine
obliges; (3) resources are unequally allocated in society, so only the
powerful are really heard.

        Weinstein answers these claims, though he pays most attention to the
first two.  He points out that the exceptions mentioned above are widely
acceptable on grounds that have little or nothing to do with the content of
the expression; they are limited to "contexts not dedicated to public
discourse" (p. 72).  More importantly, he demonstrates that the claim that
free speech doctrine is on balance harmful to minorities is considerably
overstated.  His critique deserves close consideration because of its
fairness, thoroughness, and the sharpness with which it dissects the claims
radical critics and their supporters, including Cass Sunstein and Owen Fiss.

        In the first part of the book, Weinstein presents an overview of modern
free speech doctrine.  His analysis in Chapter 2 of the basic justifications
and theories of free speech is pretty standard fare, but his ensuing
discussion in this chapter of how the forging of modern doctrine in the `60s
and thereafter was a response to the widespread censorship of the preceding
era is noteworthy.  Weinstein's historical perspective is an updating of
Rabban's (1997) pathbreaking analysis of a similar process in the aftermath
World War I, in which such liberals as Holmes, Louis Brandeis, Roger Baldwin,
and John Dewey reacted to the suppression of dissenting speech during World
War I by championing civil liberties.  In Weinstein's story, however, the
liberals prevail.

        Radical critics "ignore or trivialize the fact that current doctrine is
largely a product of the failure of early cases to protect against
governmental suppression of radical ideology at turbulent times in our
nation's history" (p. 16).  This conclusion is buttressed by Weinstein's deft
analysis of the complex relationship between free speech and equality in
Chapter 6, in which he repudiates the claim that free speech doctrine has
essentially ignored minorities.  "The claim that the courts 'invariably
construed the First Amendment' against the civil rights movement is ... a
gross misstatement of knowable and verifiable fact" (p. 117).  In fact, the
civil rights movement and other advocates of social change took advantage of
the liberalization of free speech to further their causes.

Page 279 begins here

        Chapter 3 is a useful analysis of the nature and mechanics of modern
doctrine. After canvassing the basic rules, Weinstein distills this
labyrinthine realm into three fundamental criteria.  Speech is most protected
by courts when: (1) it is on a matter of public concern; (2) it occurs in a
setting or medium dedicated to public discourse (public forum, newspaper,
Internet, etc.); (3) when the law or government action "raises or dispels
suspicion that it has been enacted for some purpose contrary to core speech
values" (e.g., viewpoint discrimination) (p. 49).  In Chapter 5 he shows that
these principles permit only narrowly defined restrictions on hate speech and
obscenity/pornography, not the broad restrictions that radical theorists
desire.  For example, Title VII's prohibition of sexual and racial harassment
in workplaces is consistent with modern doctrine, as are certain restrictions
of unwanted exposure to hostile speech in private or face-to-face contexts.

        Such critics as Lawrence and MacKinnon charge that modern doctrine's
protection of hate speech and pornography unduly compromises the equal
protection values of the Fourteenth Amendment.  Weinstein responds that this
is often a false dichotomy, except in limited circumstances.  First, the
Fourteenth Amendment is a restriction on the state, not private action, so
most forms of hate speech and pornography do not involve the equal protection
clause.  More importantly, there is no evidence that the general presence of
hate speech and pornography in public discourse (as opposed to their being
targeted directly at individuals) contributes to inequality and
discrimination.  And even if equality has been enshrined as the preeminent
constitutional value (as Fiss has argued), this hardly means that we should
grant it a special privilege against being attacked in public debate.  "In
failing to suspend the normal free speech rules for hate speech and
pornography, free speech doctrine does not discriminate against Equal
Protection Clause values.  Rather, free speech doctrine merely fails to give
equality special immunity from the rough-and-tumble of public discourse" (p.

        The last chapters of the book deal with the pros and cons of modifying
speech doctrine along the lines advocated by the radical critics.  Weinstein
informs his reasoning by the assumption that "free speech doctrine is more a
product of experience than theory"-an understanding no doubt related to
Weinstein's appreciation of history and his own experience as a civil
liberties lawyer (he is also a professor of law at Arizona State
He argues that critics overstate the benefits of excluding hate speech and
pornography from public discourse, and that the costs would be substantial.
Racist rhetoric is "already extremely marginalized" (p. 138).  Experience has
shown that such restrictions often lead to unintended consequences.  For
example, government has too often used new powers of censorship against
that the supporters of these powers want to protect.  Pornography seems to be
a different matter, for, unlike racist speech, it less obviously involves
public discourse.  But the history of censorship of pornography is intimately
linked to the censorship of art and literature, where "it is much more
that government is acting "for some reason that the First Amendment forbids"
(p. 179).

        The fact that Weinstein shows due respect for his foes makes his
argument all the more powerful, as does the way he

Page 280 begins here

patiently dissects the positions with which he disagrees.  (A lengthy
appendix deals evenly with the extensive empirical literature on the
effects of pornography.)  The book will enhance any reader's understanding
of free speech.  And Weinstein even offers something for radical critics of
free speech: an opportunity to develop stronger arguments by dealing with
the weaknesses he so tellingly exposes.


Rabban, David. 1997. FREE SPEECH IN ITS FORGOTTEN YEARS. Cambridge: Cambridge
University Press.


Copyright 2000 by the author, Donald A. Downs.

Readers may redistribute this article to other individuals for
noncommerical use, provided that the text and this notice remain
intact and unaltered in any way. This article may not be resold,
reprinted, or redistributed for compensation of any kind without
prior permission from the author. If you have any questions about
permissions, please contact Richard A. Brisbin, Jr.,
Editor, THE LAW AND POLITICS BOOK REVIEW (rbrisbin@wvu.edu),
Department of Political Science, Box 6317, West Virginia
University, Morgantown, WV 26506-6317 or by phone at (304) 293-
3811 ext. 5296 or by fax at (304) 293-8644.

Editorial Board: Charles R. Epp, University of Kansas.
Roy B. Flemming, Texas A&M University.  Nancy Maveety, Tulane University.
Wayne D. Moore, Virginia Polytechnic Institute and State University.
Jennifer A. Segal, University of Kentucky.

Previously published reviews may be obtained at the Law & Politics
Book Review web site: http://www.polsci.wvu.edu/lpbr/