Difference through a New Lens: First Amendment Legal Realism and the Regulation of Hate Speech

Richard Abel, Speaking Respect, Respecting Speech. Chicago: Univ. of Chicago Press, 1998. x + 380 pages. $30 cloth, $21 paper. Richard Delgado and Jean Stefancic, Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment. New York: Basic Books, 1997. xii + 224 pages. $45 cloth, $29 paper. Move over critical legal studies and critical race studies, the First Amendment legal realists are here. In two recent books, Richard Abel's Speaking Respect and Richard Delgado and Jean Stefancic's Must We Defend Nazis? the authors take the mantle from such colleagues as Stanley Fish and Mari Matsuda in critiquing a First Amendment jurisprudence that they believe is intellectually dishonest in its foundations and aims. Arguing that the First Amendment is not only subjective but also supports racial and gender inequality, these authors seek to explain the basis of conflicts over hate speech and other controversial expression while offering at times differing measures to deal with racist and sexist verbal attacks. The heart of their work seeks to decipher the basis for con flicts over hate speech, describing a status competition that moves social or political disputes to the legal sphere. In offering up proposals to handle such conflagrations, however, they describe a system of free speech regulation that has been poorly-if not wrongly-understood. Although these books are admittedly light on theory, they seem to accept the hegemonic view of law offered earlier by critical legal studies but go farther in offering proposals to mediate disputes over hateful expression. Both books deserve consideration. Abel's work is detailed and carefully argued, but in the end, Delgado and Stefancic's proposal is the more politically deft. The books start from a similar basis, seeing conflicts over hate speech as reflecting social competition for status or respect. Abel connects hate speech to the "centrality and pervasiveness of conflict over respect" (Abel 1998:5) using fights about pornography, Nazi marches, and religious blasphemy to claim that debates over hate speech are often grounded in identity politics and the desire of the subordinated to seek respect, honor, and dignity from society at large. For example, in describing the fight for antipornography measures, Abel portrays feminist activists as attacking the kind of sexual hate speech that devalues their social standing. Similarly, he says the banning of Salman Rushdie's The Satanic Verses reflected the book's threat to "authentic" Muslim society. Under Abel's approach, the charge of "hate speech" becomes a defensive shield for those threatened by social customs or events. Louis Farrakhan represents hate speech to American Jews, pornographic pinups are hate speech to female workers, and Robert Mapplethorpe reflects hate speech to social conserva tives worried about a permissive culture. What turns an otherwise unpleasant comment into hate speech is the notion that its expression threatens the social standing or respect of another. As such, Abel says, hate speech is most often associated with issues of moral reform, where cultural groups act to preserve, defend, or enhance the dominance and prestige of their own style of living within the total society. These fights are emotionally intense, as the "dominated must extirpate internalized feelings of subordination" (ibid., p. 70); they are zero sum; and they often involve public fights over symbols. Indeed, because "state imprimatur constitutes a public, official affirmation of norms and values, seemingly ceremonial or ritual acts take on greater meaning. . . . [T] he wider the audience and the more official the imprimatur the higher the stakes. The principal fault lines for hate speech involve religion, nation, and language; race; gender, sexual orientation and physical difference-the kind of characteristics around which societies assign standing" (ibid., p. 70). Delgado and Stefancic agree with Abel that the "indisputable element of harm" in hate speech is the "affront to dignity" (Delgado & Stefancic 1997:20). …