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Genders 28 1998
Freedom of
Expression
By STEVEN J. HEYMAN
[1] In January 1995, a University of Michigan
sophomore known as Jake Baker posted a short story
to an Internet site devoted to explicit
fiction.1
The story, "Pamela's Ordeal," graphically recounted
the narrator's rape, torture, and murder of a woman
who was given the same name as one of Baker's
classmates. A university investigation found that,
in addition to writing several similar stories,
Baker had also engaged in a long email exchange
with a Canadian man, in which the two had shared
their desires to commit sexual violence against
young women, discussed how they would go about it,
and made vague plans to meet. [2] Based on this information, the university
suspended Baker and banned him from campus. A week
later, he was arrested and charged with the federal
offense of transmitting threats in interstate or
foreign commerce. The charges were later dismissed
by the United States Court of Appeals for the Sixth
Circuit, which ruled 2 to 1 that Baker's conduct
did not amount to a threat under federal
law.2
[3] The Baker case sparked intense controversy
not only within the university, but across the
country and on the Internet. On one side, Catharine
MacKinnon and others asserted that Baker's story
constituted a form of assaultive speech, which was
deeply degrading to the woman that it named and
threatening to her sense of safety. Others,
including officials of the American Civil Liberties
Union, responded that while the story was
abhorrent, it was merely fiction or fantasy, fully
entitled to constitutional
protection.3
[4] In many ways, the Baker case is typical of
contemporary disputes over freedom of expression.
Whether they focus on hate speech, pornography,
flagburning, cigarette advertising, abortion-clinic
demonstrations, protecting the identities of sexual
assault victims, tobacco advertising, violent
entertainment, the National Endowment for the Arts,
Internet regulation, or other issues, these
controversies tend to have the same basic
structure.4
Those who advocate the regulation of a particular
kind of expression contend that it causes serious
harm to individuals, groups, or the community at
large. Opponents are often skeptical about the
seriousness of this injury. In any event, they
argue, the First Amendment denies government the
power to prevent such harm through the suppression
of
speech.5
[5] Of course, it is difficult to deny that
speech can sometimes be regulated consistent with
the First Amendment. Few, for example, would
question the government's authority to punish
incitement of violence or false
advertising.6
Yet we have no well-developed and generally
accepted view of when regulation is legitimate. In
the absence of any common ground to appeal to,
First Amendment disputes seem increasingly bitter
and irresolvable. [6] It is hard to see how this stalemate can be
broken without a more general theory of the scope
of free expression--a view that integrates both the
justifications and the limits of this freedom into
a coherent whole. This essay makes a start toward
developing such a theory. Its central thesis is
that freedom of speech is limited by the
fundamental rights of other individuals and of the
community. Natural Rights, Social
Welfare, and the First Amendment [7] As I have shown elsewhere, this idea was
regarded as axiomatic when the First Amendment was
adopted.7
Eighteenth-century Americans drew on a variety of
sources for their understanding of free speech,
including the common law and the civic republican
tradition.8
But the most comprehensive framework that they
looked to was provided by natural rights theory.
According to this theory, freedom of speech is a
right inherent in human nature as well as
republican citizenship. Like all such rights,
however, it is bounded by the rights of
others.9
The classic example is defamation. While I have a
right to free speech, others have a right to
reputation. Government is instituted to protect
rights against wrongful injury. On this view, the
state has not only the authority but the duty to
restrict speech when it unjustifiably defames
others. [8] Natural rights theory thus suggests a rather
straightforward principle: that freedom of speech
is limited by the rights of others, and that the
law may protect these rights against expression
that violates them. Although this principle was
widely held when the First Amendment was adopted,
it no longer holds a central place in American
constitutional theory or doctrine. Instead, we now
generally view First Amendment problems in terms of
an opposition between freedom of speech and "state
interests." [9] To understand this shift, we need to briefly
explore the transformation of American
jurisprudence after the Civil
War.10
During the late nineteenth and early twentieth
centuries, the theory of natural rights gave way to
a more positivist and utilitarian conception of
law. On this view, rights are not inherent in
individuals, but derive their force from the
positive law of the state. The purpose of law is to
promote social welfare, not to protect individual
rights as such. [10] The advent of this view undermined the
traditional rationale for protecting free
expression. Rather than a right of nature or of
democratic citizenship, free speech was represented
as merely one interest to be weighed in the
utilitarian calculus. There was nothing distinctive
about speech that entitled it to special
protection, or that placed it beyond the authority
of the state to regulate like any other form of
activity. [11] The central task of modern First Amendment
thought has been to reconstruct a justification for
freedom of speech within the framework of
post-natural-rights jurisprudence. During the early
twentieth century, leading defenders of the First
Amendment such as Harvard law professor Zechariah
Chafee, Jr., and Justices Oliver Wendell Holmes and
Louis D. Brandeis emphasized the importance of free
speech for democratic self-government and the
search for truth. For these reasons, they argued,
the social interest in free speech was so great
that it should give way only where speech presented
a "clear and present danger" to other important
social
interests.11
[12] By the middle of the century, the "clear
and present danger" test had evolved into a general
balancing of speech against other social interests.
As Justice Hugo Black forcefully argued, this
approach failed to provide reliable protection for
speech.12
In more recent years, free speech has once more
come to be regarded as a right. But this revival of
the idea of rights in First Amendment jurisprudence
has not extended to the other values that may be
harmed by speech. These values continue to be
characterized as social interests or (since the
state is regarded as the spokesman for such
interests) as state interests. [13] In this way we have come to conceive of
First Amendment issues as clashes between free
speech rights and state interests--a term within
which the rights of others have been absorbed. When
the issue is posed in this way, we seem to face a
tragic dilemma in which the more we protect speech,
the more we must sacrifice other rights, and vice
versa. It is for this reason above all that
contemporary free speech controversies appear so
intractable, and that the disputants so often seem
to talk past each other. These problems, which go
to the heart of modern First Amendment theory,
should lead us to consider returning to a
rights-based approach. Free Speech in a Framework of
Rights [14] In constructing a rights-based theory of
the First Amendment, I shall draw on the liberal
natural rights tradition identified with Locke and
Kant--a tradition which, as we have seen, did much
to shape the ideological background of the First
Amendment, and which continues to represent a deep
current in American
thought.13
On this view, rights are rooted in the concept of
human liberty. The core meaning of liberty is
self-determination: a free person is one who
determines her own thoughts and actions, rather
than being determined by something other than
herself.14
Natural rights theory then develops the content of
rights by exploring what it means to be a free
person in various spheres of life. These include
(1) the individual's existence in the external
world; (2) her inner life and its expression to
others; (3) her social and political life; and (4)
her intellectual and spiritual
activity.15
In the following sections, I shall show that these four aspects
of liberty not only provide the major
justifications for free speech, but also give rise
to other fundamental rights. When speech violates
these rights, I argue, it may properly be regulated
unless its value is so great as to outweigh the
injuries that it causes. Free Speech and External Rights [15] The first, and simplest, way to understand
freedom of speech is as an aspect of liberty in
general--the exercise of an individual's natural
capacities for thought and expression. On this
view, free speech falls within the traditional
natural rights to life, liberty, and
property.16
But of course other individuals also have a right
to be secure in their persons and property. Speech
violates this right when it amounts to an imminent
assault; when it conveys a serious threat of future
violence; or when it incites third parties to
attack others. Since individual rights exist under
the protection of the community, such speech may
also constitute a breach of the public peace, and
may thus result in criminal as well as civil
liability. Free Speech and Rights of Personality
[16] To be fully free, a person must be free not
only externally but also in her inner life. This
brings us to a second category of rights, which I
shall call rights of personality. Like the
traditional triad of life, liberty, and property,
these rights are rooted in our nature as autonomous
beings. The focus of self-determination has
shifted, however: rather than acting in the
external world, the self now turns inward to shape
its own intellectual and emotional life. Rights of
personality reflect what it means to be a free
person in this internal realm. [17] First Amendment rights may be understood in
this way as well. In determining his own thoughts,
beliefs, values, and emotions, an individual shapes
his inner self or personality. He further realizes
himself through the expression of his thoughts and
feelings to others. It follows that unjustified
restrictions on speech and thought are wrongful not
merely because of the limits they impose on outward
liberty, but also in a deeper way, because they
obstruct the individual's right to autonomously
determine, express, and realize his own
personality. [18] At the same time, individuals also have
other rights of personality, some of which may be
violated by speech. First, speech can cause
substantive injury through the intentional
infliction of emotional distress. Second, I would
argue that severely abusive speech infringes the
inviolability of personality, in much the same way
that offensive battery (an unauthorized touching
that "offends a reasonable sense of personal
dignity"17)
violates bodily integrity. Third, speech and
related forms of conduct can constitute an invasion
of privacy, or the right to maintain the integrity
of one's personal life by preserving the boundary
that separates it from other persons. Finally,
defamation violates the right to reputation, which
can be understood as the social dimension of
personality. Free Speech and Community [19] Self-determination takes place not only on
an individual but also on a communal level. This
leads to the third justification for free speech:
that it is central to democratic self-government.
In a classic statement of this view, Alexander
Meiklejohn invokes the image of a traditional town
meeting. Citizens must hear all sides of an issue,
he argues, if they are to reach the wisest and most
fully informed
decisions.18
[20] For Meiklejohn, this image also suggests
the appropriate limits of free speech. The town
meeting cannot function unless its members observe
some rules of order, such as the rule that forbids
personal abuse in debate. Speech of this kind, he
says, obstructs the deliberative process, and thus
"threatens to defeat the purpose of the meeting."
For this reason, it is not protected by the First
Amendment.19
[21] This highlights a crucial point about the
nature of free speech rights. When viewed in terms
of general liberty or self-realization, free speech
was an essentially individual right--a right that
in principle could be exercised by a single
individual, without any interaction with others. In
contrast, political free speech can be understood
as a relational right--a right to interact
with others in a particular way. It is a right to
engage in discourse with other individuals who have
the same rights of citizenship and participation,
and who share certain interests as a community. The
right to political participation therefore carries
with it a duty to respect the corresponding rights
of other citizens and of the community itself. This
limitation is not imposed from the outside, by the
existence of other kinds of rights, but is an
internal limit that arises from the very nature of
the right to political speech. Free Speech and the Search for Truth [22] The last major justification for free
speech is that it is necessary for the pursuit of
truth. In addition to the instrumental value that
knowledge has in furthering other ends, classical
theorists such as Milton and Mill hold that the
search for truth has intrinsic value in developing
people's intellectual capacities, and thereby
realizing their nature as rational
beings.20
[23] Once again, this rationale not only
provides a basis for free speech, but also points
to some constraints on that freedom. First, in
asserting a right to intellectual freedom, an
individual appeals to her status as a rational
being. But this status is one that she shares with
human beings in general. It follows that an
individual cannot consistently assert this right
and at the same time refuse to recognize others as
rational beings. Second, as Professor Susan
Williams demonstrates, in many ways truth is
intersubjective, and can be attained only through
communication with
others.21
To this extent, the search for truth also may be
understood as a relational right which requires
respect for other participants. [24] It is important to stress the limited role
of these two constraints. I do not mean to imply
that they provide an affirmative justification for
regulating speech. For the liberal tradition, the
coercive powers of government do not extend to
matters of thought or belief as such; government
may never restrict speech simply because of
disagreement with it or fear that it will undermine
the truth. Instead, my contention is simply that
speech that violates these constraints has less
value for the search for truth. This means that
there is a weaker argument for protecting such
speech in cases where it can be shown to violate
other rights. Conflicts of Rights [25] On the view outlined here, free speech must
be exercised with due regard for the rights of
others. It does not follow, however, that speech
must always give way to other rights. In some
cases, an apparent conflict can be resolved by
adjusting the boundaries of the competing rights.
Even when this is not possible, speech that
infringes other rights is only presumptively
wrongful, for it may have such value that it should
be regarded as justified despite the injury that it
causes. [26] There are three related ways of approaching
conflicts of rights. The first is to balance
the rights in order to determine which has more
value. Of course, to do this we need a common
standard by which to measure them. For the
rights-based theory, that standard may be found in
the four elements of liberty that justify these
rights in the first place. Thus, rights have value
as aspects of (1) external freedom, (2) internal
freedom to develop and express one's personality,
(3) freedom to participate in social and political
life, and (4) intellectual and spiritual freedom to
pursue meaning and truth. The ultimate question is
which right, at the margin, is more important as an
aspect of human liberty. [27] In contrast to balancing, which involves an
external comparison of rights, the second approach
explores whether there is any internal
relationship between
them.22
For example, individuals cannot speak freely unless
they feel secure against violence. In this sense
personal security is the most basic of rights.
Thus, speech should not be protected when it is
used to seriously threaten the safety of others.
[28] At the same time, it is important to
recognize that the relationship between rights does
not necessarily run in only one direction. Thus,
while personal security is a necessary condition
for freedom of speech, the converse is also true.
Free speech is essential to political liberty,
which the liberal democratic tradition regards as
the ultimate safeguard of all other
rights.23
It follows that political speech should not be
restricted on the basis of merely speculative fears
of injury, but only when it poses a direct and
substantial threat to other rights. [29] This discussion of the interrelatedness of
rights suggests a further point: that rights are
integral to a larger whole. This leads to a third
way of resolving conflicts, which is to ask which
right, under the circumstances, is most important
to the system of constitutional liberty as a
whole. For example, while individuals have a right
to reputation, in the case of public officials that
right must give way to the community's right to
assess their character and performance, a right
that is vital to democratic government. For this
reason, the Supreme Court held in New York Times
v. Sullivan that defamatory statements
regarding the official conduct of public officials
are constitutionally protected unless knowingly or
recklessly
false.24
[30] In some cases, then, speech should be
protected despite the injury it causes to other
rights. This principle is subject to an important
constraint, however: an act of speech cannot be
privileged merely because the speaker values the
wrongful consequences of the act, but only for some
other reason. For example, while an individual may
have a right to threaten another in self-defense,
there can be no right to threaten merely because
one desires to invade another's right to personal
security. The Rights-based Theory and
Contemporary First Amendment
Jurisprudence [31] As a way of contrasting the rights-based
theory with current free speech jurisprudence, I
would like to consider the Supreme Court's 1989
decision in Florida Star v.
B.J.F.25
After B.J.F. was raped at knifepoint by an
unknown assailant, she reported the crime to the
county sheriff's department. A few days later, the
Florida Star published a full account of the
rape which identified her by name. A jury later
ordered the newspaper to pay B.J.F. $100,000 in
damages for violating a Florida statute that made
it unlawful to publish the names of sexual assault
victims. [32] By a 6 to 3 vote, the Supreme Court
overturned the award under the First Amendment.
Justice Marshall's opinion for the majority frames
the issue as a conflict between the press's right
to publish truthful, lawfully obtained information,
on one hand, and what he calls the "state interest"
in protecting the privacy and safety of rape
victims, on the other. Marshall recognizes that
this is an "interest of the highest order," but
asserts that, under the circumstances, the statute
was not necessary to protect them, because the
government itself had inadvertently given the
Star's reporter access to B.J.F.'s
name.26
For this reason, the Court held the application of
the law invalid under the "strict scrutiny" test,
which holds that restrictions on the content of
expression are presumptively unconstitutional and
will be upheld only when they can be shown to be
necessary to promote a compelling governmental
interest. [33] Florida Star would look very
different from a rights-based perspective. On this
view, the statute's purpose was not to promote the
interests of the state, but to protect the rights
of the victim. The government's own failure to
comply with the law should not have the effect of
waiving B.J.F.'s rights, or relieving the newspaper
of its own duty to respect them. Instead of
applying a standard heavily weighted toward one
side of the balance, the rights-based view would
compare the two rights in terms of their value for
human liberty. On one hand, the Star's
action seriously invaded B.J.F.'s fundamental
rights to privacy and personal security. On the
other hand, it is difficult to see any important
value served by disclosing her name, at least
before anyone has been charged with the crime.
Under the rights-based theory, then, the Supreme
Court clearly came out the wrong way in Florida
Star.27
Hate Speech [34] Let us now explore how this theory would
apply to the problem of hate speech--whether the
First Amendment should protect expression that
abuses or degrades others on the basis of such
traits as race, ethnicity, gender, sexual
orientation, and
religion.28
In approaching this issue, the theory begins with
the concept of recognition. [35] For the natural rights tradition, rights
are ultimately rooted in personhood. It follows
that an individual cannot enjoy rights in relation
to others unless they recognize him as a free
person. Recognition is the most fundamental right
that individuals have in relation to others--a
right that lies at the basis of all their other
rights.29
[36] From a rights-oriented perspective, the
core problem with hate speech is that it denies
recognition to its targets. In fact, I believe that
hate speech can best be defined as expression that
intentionally denies recognition to others, and
thereby expresses hostility towards them. In
addition to conflicting with the very basis of
right, hate speech in many cases violates the
concrete rights of individuals and the community.
In such cases, I would hold that hate speech may be
regulated, except where its value is sufficient to
justify the injuries that it inflicts. In
developing this view, it will be useful to begin
with private hate speech, or that directed toward
particular individuals, and then turn to the
problem of public hate speech, such as that
involved in the Skokie affair. Private Hate Speech [37] In some cases, hate speech that relates to
particular individuals will amount to an assault,
threat, or incitement to violence. And of course
group-based insults are also one of the most common
forms of "fighting
words."30
In all these cases, the speech infringes the
targets' right to personal security, and/or the
community's right to the
peace.31
Private hate speech may also violate rights of
personality, through intentional infliction of
emotional distress, attacks on personal dignity, or
invasion of privacy. Finally, hate speech
contravenes the right to equality by denying all of
these rights on the basis of race or other
invidious
grounds.32
[38] Insofar as they violate these rights, acts
of private hate speech are presumptively wrongful
under the rights-based theory. For this reason,
they should be held unprotected unless they have
sufficient value to justify the injuries that they
cause. [39] As an illustration, consider the classic
form of hate speech in the United States--the
burning of a cross to express hostility toward
African-Americans or other racial, ethnic, or
religious minorities. Suppose that the Ku Klux Klan
burns a cross at night in front of the home of an
African-American family that has recently moved
into a white neighborhood, for the purpose of
terrorizing the family and causing them to move. It
is difficult to imagine a more serious invasion of
personal security. If cross-burning occurs inside
the family's yard, it will also violate their
property rights, as well as criminal laws against
trespass and arson. [40] The Klansmen's conduct also infringes the
family members' rights of personality. The act is a
flagrant and deeply offensive intrusion into their
private lives, and thus constitutes an invasion of
privacy. In addition, it is difficult to conceive
of a clearer case of intentional infliction of
emotional distress. [41] Does cross-burning, when it is directed
against particular individuals, have sufficient
value to justify the injuries that it causes?
Undoubtedly it constitutes a form of
self-expression. As we have seen, however, an act
of expression cannot be privileged on account of
the very aspect that makes it wrongful in the first
place. A person has no right to pursue her own
self-realization when it is defined in terms of
denying the self-realization of others, and is
directed toward them. [42] It might also be argued that the Klansmen's
conduct should be protected because it is intended,
at least in part, to express a political view. Even
if cross-burning is entitled to protection as
political speech, however--an issue that we shall
come to shortly--it does not follow that this
protection should apply to acts directed against
particular persons. The Klan could communicate its
political message just as effectively by burning a
cross elsewhere, without inflicting serious
injuries to specific individuals. Or, if this is
not the case, then the increased effectiveness
arises solely from the wrongful aspect of the
conduct, the terror and degradation that it
inflicts on the family. For these reasons,
cross-burning directed toward particular persons
should not be protected as free expression. [43] So far, my claim has been that hate speech
may be restricted when it falls within an
unprotected category of speech, such as fighting
words. Suppose, however, that a jurisdiction
chooses to ban not fighting words in general, but
only those based on race or other group-based
traits. In R.A.V. v. City of St. Paul,
the Supreme Court ruled 5 to 4 that such laws
are unconstitutional. Such a selective ban, said
Justice Scalia, would violate the basic principle
that government may not discriminate based on the
content of
speech.33
[44] Justice Scalia's analysis in R.A.V.
is extremely complex, and I have criticized it in
some depth
elsewhere.34
But the short response is this. While ordinary
assaults or fighting words violate the target's
rights, hate speech strikes at the very existence
of those rights, by denying the target's status as
a person and a member of the community. In this
way, hate speech inflicts a deeper injury, and thus
calls for a stronger response, than more ordinary
kinds of assaultive speech. Public Hate Speech [45] Finally, let us turn to the most difficult
and controversial problem--that of public or
political hate speech. Suppose that (as in the
Skokie case) a group of neo-Nazis or Klansmen plan
to hold a march in full regalia through a
predominantly Jewish or African-American
neighborhood, in order to express their belief that
those groups should be subjected to segregation,
deportation, or
genocide.35
The question is whether such expression should be
protected because of its political character. [46] The protection of political speech is
correctly regarded as a central concern of the
First Amendment. But while this right is
fundamental, it is not absolute. Instead, as I have
suggested, it is best understood as a relational
right--a right to engage in discourse with one's
fellow citizens, in a way that respects their own
rights of membership and participation. [47] I would argue that political hate speech
violates these rights in two main ways. First, it
infringes the rights of target-group members to be
treated as free and equal citizens who are capable
of participating in self-government. In this way it
contravenes their rights as members of the
political community. Such speech also violates the
integrity of the deliberative process by
undermining the possibility of reasoned discourse.
As Meiklejohn observes, such discourse depends on
the existence of mutual respect among
citizens.36
[48] Second, in a democratic society, the people
not only govern but also are governed. Political
hate speech violates the rights of its targets in
this capacity as well. Individuals have a
fundamental right to recognition by the community
that governs them. This may be regarded as the core
meaning of the Thirteenth and Fourteenth Amendments
to the Constitution, which abolished slavery and
extended the rights of citizenship to all
Americans. But this duty of recognition, I would
argue, is one that binds not only the community
itself but also its members. As citizens,
individuals have a right to share in the political
power of the community. With this right comes a
corresponding duty to use that power in accord with
the same obligations that the community itself has.
Thus, citizens have a duty to recognize those over
whom they exercise political power. They breach
this duty when they engage in hate speech. [49] For these reasons, political hate speech
should be considered presumptively wrongful under
the rights-based model. The question then becomes
whether it should nevertheless be privileged
because of its value as political speech. [50] Following Meiklejohn, we might regard the
paradigm case of political speech as expression
that is addressed to the political community
regarding an issue that it must decide. Judged by
this standard, political hate speech lacks full
value for two reasons. First, it is directed not to
the community as a whole, but only to part of
it--those who are not minorities. Insofar as it
addresses the latter at all, it treats them not as
citizens, but as objects of hatred and contempt.
Second, when hate speech proposes extreme measures
like segregation, deportation, or genocide, it does
not relate to a matter of public policy for the
people to decide, for no group of people can have
the right to impose such measures on others. [51] Of course, to say that hate speech lacks
full value is not to say that it has no value at
all. For example, it is sometimes argued that hate
speech provides useful information about the
prevalence of racism, or that it helps us develop
the social virtue of
tolerance.37
Arguments of this sort do not, however, assert that
hate speech has any value in itself, or that it
makes a legitimate contribution to public debate.
Instead, the speech is to be valued for something
else that we may be able to find in it. This
indirect value does not seem sufficient to outweigh
the serious injuries that hate speech causes both
to its targets and to the polity as a whole. [52] Nor should public hate speech be protected
because of its contribution to the pursuit of
truth. As I have suggested, the search for truth
requires that human beings recognize one another as
reasonable beings who are capable of participating
in a common enterprise of inquiring after truth.
Because hate speech denies recognition to others,
it can make no direct contribution to this process.
And, once more, while hate speech may have some
indirect value in this respect, that value does not
seem sufficient to outweigh the injuries that it
causes to the rights of
others.38
[53] However one resolves the difficult issues
surrounding public hate speech, it is clear that,
under the rights-based theory, there is a realm of
thought and expression that is beyond the
legitimate reach of the law. Thus freedom of
thought can never properly be restricted, since a
person's inner thoughts can never violate the
rights of others. The same is true of expression
that is not communicated to others. This right of
private thought and expression probably should also
apply to private conversations, and to internal
expression within small
groups.39
Scientific and intellectual inquiry should also be
protected;40
expression comes within the sphere of law only when
it is directed toward affecting the rights of
others. [54] In conclusion, let us briefly return to the
case with which we began, that of Jake Baker.
Assuming that, when Baker posted his story to the
Internet, he did not intend for it to be read by
anyone who would reasonably regard it as expressing a serious
intent to assault the woman that it named, he
should not be held to have made a criminal threat.
Baker clearly violated the woman's rights of
personality, however. In addition to recklessly
inflicting severe emotional distress, his conduct
constituted a profound invasion of her right to
personal dignity and inviolability. Finally,
whatever value the story may have had as
self-expression or a contribution to culture, it
was not necessary for him to use the name of an
actual person. Because he could have achieved the
same ends without violating the rights of others,
his conduct should not be protected under the First
Amendment. * This essay is a shorter version of Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 BOSTON UNIVERSITY LAW REVIEW-- (forthcoming Dec. 1998) [hereinafter Righting the Balance]. It was presented at the Chicago-Kent Legal Theory Workshop, and at the inaugural meeting of the Working Group on Law, Culture and Humanities held at Georgetown University Law Center, Washington, D.C., in March 1998. I am grateful to the participants in that session, especially Vincent Blasi, Charles Lawrence, Milton Regan, and Susan Williams, for their thoughtful comments on the issues raised by this essay, and to Alison Baldwin, Anita Bernstein, Jacob Corré, Michael Curtis, David Gerber, Carol Miller, Vincent Samar, and Steven Wilf for their reading of earlier drafts. I also learned much from conversations with Thomas Grey and Robert Post. Kerry Bartell, Jennifer O'Neill, and Lisa Weier provided valuable research assistance. Finally, I should like to express my deep gratitude for the research support provided by the Norman and Edna Freehling Scholars Fund, which made this project possible. If you are outside the US and would like to obtain a copy of the long version of this essay (approximately 165 pages), contact the Editor at kibbey@colorado.edu.back
1. The facts of the Baker
incident are recounted in United States v.
Baker, 890 F. Supp. 1375 (E.D. Mich. 1995), and
United States v. Alkhabaz, 104 F.3d 1492
(6th Cir. 1997), as well as in news accounts such
as Megan Garvey, Crossing the Line on the Info
Highway, WASHINGTON POST, March 11, 1995,
at H1. The short story is reproduced in
Alkhabaz, 104 F.3d at 1497-98 n.1
(Krupansky, J., dissenting).
2. United States v.
Alkhabaz, 104 F.3d 1492 (6th Cir. 1997).
3. See, e.g., All Things
Considered (National Public Radio broadcast,
March 15, 1995) (transcript available on NEXIS, News library, Arcnws file)
(remarks of Catharine MacKinnon); Agence France
Presse, Court Upholds E-mail as Free Speech,
Jan. 30, 1997 (transcript available on NEXIS, News library, Curnws file)
(quoting Howard Simon, executive director of
American Civil Liberties Union of Michigan,
asserting that "[e]ven sick fantasies are free
speech" protected by the First Amendment).
4. For the leading American
cases on hate speech, see Collin v. Smith,
578 F.2d 1197, 1200 (7th Cir.), cert.
denied, 439 U.S. 916 (1978) (ruling that
members of a neo-Nazi organization have a First
Amendment right to march in the predominantly
Jewish suburb of Skokie, Illinois), and R.A.V.
v. City of St. Paul, 505 U.S. 377 (1992)
(holding that a city ordinance banning the display
of swastikas, burning crosses, and like symbols
violates the First Amendment). On pornography, see
American Booksellers Assn. v. Hudnut, 771
F.2d 323 (7th Cir. 1985), aff'd mem., 475
U.S. 1001 (1986) (striking down the feminist
anti-pornography ordinance drafted by Catharine
MacKinnon and Andrea Dworkin). The Supreme Court
held laws against flagburning unconstitutional in
Texas v. Johnson, 491 U.S. 397 (1989). For a
decision upholding limited restrictions on
abortion-clinic demonstrations, see Madsen v.
Women's Health Ctr., 114 S. Ct. 2516 (1994). In
several cases, the Supreme Court has held that
states may not prohibit the media from publishing
the names of sexual assault victims. See, e.g., Florida Star v. B.J.F., 491 U.S. 524
(1989), discussed below. For a decision on tobacco
advertising, see Penn Advertising v. Mayor,
63 F.3d 1318 (4th Cir. 1995) (upholding Baltimore
ordinance banning most outdoor advertising of
cigarettes), vacated and remanded, 116 S.
Ct. 2575 (1996), aff'd on reconsideration,
101 F.3d 332 (4th Cir. 1996), cert.
denied, 117 S. Ct. 1569 (1997). Some recent
developments on entertainment violence are
described in Lawrie Mifflin, Deal on Making
Ratings for TV Specify Content, NEW YORK
TIMES, July 10, 1997,
at A1, col. 1. This summer, in National Endowment for the Arts v. Finley, 118 S. Ct.
2168 (1998), the Supreme Court rejected a First
Amendment challenge to a law requiring the NEA to
take account of "general standards of decency" in
awarding grants to artists. In Reno v. American
Civil Liberties Union, 117 S. Ct. 2329 (1997),
the Supreme Court struck down a federal law
regulating indecency on the Internet.
5. It is important to note
that those who support or oppose regulation often
vary from one issue to another. Thus conservatives
often support prohibitions on flagburning, while
liberals oppose them; to a large extent, these
positions are reversed on the regulation of
cigarette advertising and anti-abortion
demonstrations. 6. See Konigsberg
v. State Bar, 366 U.S. 36, 49 n.10 (1961)
(Harlan, J.) (observing that an absolutist reading
of the First Amendment "cannot be reconciled with
the law relating to libel, slander,
misrepresentation, obscenity, perjury, false
advertising, solicitation of crime, complicity by
encouragement, conspiracy, and the like").
7. I trace the history of
the American conception of freedom of speech in
Righting the Balance, supra note *, Part I.
8. For the common-law
understanding of liberty of the press, see 4 WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND *151-53 (St. George Tucker
ed., 1803 & photo. reprint 1969). The civic
republican approach is best represented by JOHN TRENCHARD
& THOMAS GORDON, CATO'S
LETTERS (Ronald
Hamowy ed., 1995) (London 6th ed. 1755)
[hereinafter CATO'S LETTERS]. 9. A classic statement of the natural rights view appears in this passage by the Jeffersonian Republican jurist St. George Tucker:
St. George Tucker, Of the Right of
Conscience; and of the Freedom of Speech and of the
Press, in 1 BLACKSTONE, supra note 8,
app. G, at 11. 10. For a valuable account
of this transformation, see MORTON
J. HORWITZ, THE TRANSFORMATION
OF AMERICAN LAW, 1870-1960 (1992).
11.
See ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH
(1920); Abrams v.
United States, 250
U.S. 616, 630 (1919) (Holmes, J., dissenting);
Whitney v.
California, 274 U.S.
357, 375 (1927) (Brandeis, J., concurring). For
excellent accounts of the development of modern
First Amendment jurisprudence, see MARK A.
GRABER, TRANSFORMING FREE SPEECH: THE
AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM (1991); David M. Rabban,
The Emergence of Modern First Amendment Doctrine, 50 UNIVERSITY OF
CHICAGO LAW REVIEW 1205
(1983); David M. Rabban, Free Speech in Progressive Social
Thought, 74
TEXAS LAW REVIEW 951 (1996).
12. See, e.g.,
Konigsberg v. State Bar, 366 U.S. 36, 60-62,
74-75 (1961) (Black, J., dissenting).
13. For some contemporary
works in this tradition, see ROBERT
NOZICK, ANARCHY, STATE, AND
UTOPIA (1974); JOHN RAWLS, ATHEORY OF
JUSTICE (1971).
14. On liberty as
self-determination, see JOHN
LOCKE, AN ESSAY
CONCERNING HUMAN UNDERSTANDING bk. II, ch. 21 (Peter
H. Nidditch ed., 1975) (4th ed. 1700); IMMANUEL KANT,
FOUNDATIONS OF THE
METAPHYSICS OF MORALS *446-47 (Lewis W. Beck
trans, 2d ed., 1990); IMMANUEL
KANT, THE METAPHYSICS OF
MORALS *213-14 (Mary
Gregor trans., 1991); HEGEL,
ELEMENTS OF THE PHILOSOPHY OF RIGHT §§ 5-7 (Allen W.
Wood ed., H.B. Nisbet trans., 1991) [hereinafter
HEGEL, PHILOSOPHY OF RIGHT]. 15. In order to avoid the
awkwardness of "his or her," I shall alternate between masculine and feminine generic pronouns. 16. See, e.g.,
CATO'S LETTERS, supra note 8, No.
62 (treating freedom of thought and speech as
aspects of natural liberty).
17. RESTATEMENT (SECOND) OF TORTS §§ 18-19 (1965).
18. ALEXANDER MEIKLEJOHN, POLITICAL
FREEDOM 24-27 (1960).
19.
Id. at 24-25.
20. See JOHN MILTON,
AREOPAGITICA, in AREOPAGITICA AND OF EDUCATION
(George H. Sabine ed., 1951) (1644); JOHN STUART
MILL, ON LIBERTY
ch. 2 (David Spitz ed., 1975) (1859).
21.
Susan H. Williams, A
Feminist Theory of Truth (forthcoming).
22. On this approach, see
JEREMY WALDRON, Rights in Conflict,
in LIBERAL RIGHTS 203 (1993).
23. See Palko v.
Connecticut, 302 U.S. 319, 327 (1937)
(observing that freedom of speech and thought "is
the matrix, the indispensable condition, of nearly
every other form of freedom").
24.
New York Times v. Sullivan, 376 U.S.
254 (1964). 25. Florida Star v.
B.J.F., 491 U.S. 524 (1989).
26. Id. at 533-34,
537-39. 27. A more difficult
problem would be presented in contexts where a
substantial public interest would be served by
publication, such as reporting public proceedings
in a criminal trial. See, e.g., Cox Broad. Corp. v. Cohn, 420 U.S. 469
(1975). 28. The literature on hate
speech is vast. For some collections of major
writings, see HENRY LOUIS GATES ET AL.,
SPEAKING OF RACE, SPEAKING OF
SEX: HATE SPEECH,
CIVIL RIGHTS, AND CIVIL LIBERTIES (1994);
MARI J. MATSUDA ET AL.,
WORDS THAT WOUND: CRITICAL
RACE THEORY, ASSAULTIVE
SPEECH, AND THE
FIRST AMENDMENT (1993); HATE SPEECH AND THE
CONSTITUTION (Steven
J. Heyman ed., 1996). On the history of the issue,
see SAMUEL WALKER, HATE
SPEECH: THE HISTORY OF AN
AMERICAN CONTROVERSY (1994).
29. For a discussion of
recognition in Hobbes, Locke, and other early
modern natural rights theorists, see Steven J.
Heyman, Hate Speech and the Theory of Free
Expression, in HATE
SPEECH AND THE CONSTITUTION, supra note 28,
at xli-xlii, xlvii-xlix [hereinafter Heyman,
Hate Speech]. The concept of recognition and
its relationship with right are more fully
developed in later works, especially those of
Fichte and Hegel. See, e.g., J.G. FICHTE, SCIENCE OF
RIGHTS (A.E. Kroeger trans., 1889) (1796); HEGEL,
PHILOSOPHY OF RIGHT, supra note 14,
§§ 36, 57, 71, 84-85, 95, 331; G.W.F. HEGEL,
PHENOMENOLOGY OF
SPIRIT §§
178-96 (A.V. Miller trans., 1977) (5th ed., J.
Hoffmeister ed., 1952). See generally
AXEL HONNETH, THE
STRUGGLE FOR RECOGNITION (1995); ROBERT R.
WILLIAMS, RECOGNITION (1992). For an
excellent discussion of recognition and its
relationship to contemporary controversies on
campus, see Charles Taylor, The Politics of
Recognition, in MULTICULTURALISM AND "THE POLITICS OF
RECOGNITION" 25-73
(Amy Guttmann ed., Princeton University Press,
1992). 30. In Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942), the
Supreme Court ruled that the First Amendment did
not protect "insulting or 'fighting' words," which
it defined as "those which by their very utterance
inflict injury or tend to incite an immediate
breach of the peace." I defend a limited version of
the Chaplinsky doctrine in Righting the
Balance, supra note *, Part IV.A
31. A 1989 incident at
Arizona State University provides a dramatic
example of all of these offenses. A fight started
between a black student, Toby Wright, and a white
fraternity member, Sean Hedgecock, after Hedgecock
allegedly said, "Fuck you, nigger." Two dozen
fraternity members then emerged from their house
and surrounded Wright and two other blacks,
chanting racial slurs. The fight was broken up by
police, who alleged that Hedgecock continued to
shout epithets and threatened to "get those niggers
and kill them." Later that night, Hedgecock saw two
other black students and shouted, "Those are the
niggers! They're back!" Several hundred people then
flooded out of nearby fraternity houses and
surrounded the blacks, watching while a group of
white fraternity members beat them up. The incident
is recounted in Jon Wiener, Words That Wound:
Free Speech for Campus Bigots?, 250 THE NATION
272 (Feb. 26, 1990). 32. Of
course, this is a central theme of the
critical-race-theory literature on hate speech.
See,
e.g., MATSUDA ET AL., supra
note 28; see also CATHARINE A. MACKINNON, ONLY WORDS (1993) (arguing that hate speech, pornography, and racial and sexual harassment constitute denials of equality. On the right to equality within the
rights-based theory, see Heyman, Hate Speech, supra
note 29, at lviii-lix.
33. R.A.V. v. City of
St. Paul, 505 U.S. 377 (1992).
34. See Heyman,
Hate Speech, supra note 29, at
xliii-xlvi. 35. For
the Skokie litigation, see Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.),
cert.
denied, 439 U.S. 916
(1978); Village of
Skokie v. National Socialist Party of
America, 373 N.E.2d
21 (Ill. 1978). The controversy generated a rich
and extensive literature. See, e.g., LEE C.
BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND
EXTREMIST SPEECH IN AMERICA
(1986); DONALD
DOWNS, NAZIS IN SKOKIE: FREEDOM, COMMUNITY, AND THE FIRST
AMENDMENT
(1985); ARYEH
NEIER: AMERICAN NAZIS, THE SKOKIE CASE, AND THE RISKS OF
FREEDOM (1979); Raphael Cohen-Almagor, Harm Principle, Offense Principle, and
the Skokie Affair, 41 POLITICAL
STUDIES 453
(1993), reprinted
in HATE SPEECH AND THE CONSTITUTION,
supra note 28, at 277-94; Daniel A. Farber,
Civilizing Public
Discourse: An Essay on Professor Bickel, Justice
Harlan, and the Enduring Significance of
Cohen v. California, 1980 DUKE LAW JOURNAL 283.
36. MEIKLEJOHN,
supra note 18, at 69-70.
37. For
the latter argument, see BOLLINGER,
supra note 35.
38. One useful way to
explore this question is to ask whether we believe
that it is actually desirable that such
views be publicly expressed, in the sense that the
values underlying free speech and other rights are
best served if those who hold such views openly
express them, rather than keeping those views to
themselves. Meiklejohn, for example, argues that if
political views are "responsibly entertained by
anyone, we, the voters, need to hear them"; such
views "must be expressed, not because they are
valid, but because they are relevant." MEIKLEJOHN, supra note 18,
at 28. Mill discusses the search for truth in
similar terms. MILL,
supra note 20, at 43-44. It seems highly
doubtful, however, that we would apply this
position to public hate speech. Instead, we would
be more likely to say that such speech is so
inconsistent with the respect owed to others and
with the requirements of reasonable discussion that
it is improper to introduce it into public
discourse, regardless of whether there is a right
to do so. We would regard the disappearance of hate
speech as a gain rather than a loss for public
discussion. If this is true, then it is clear that
the value of public hate speech does not outweigh
the injuries it causes. 39. An example is provided
by the facts of Brandenburg v. Ohio, 395
U.S. 444 (1969), in which a dozen Klansmen gathered
on private party to burn crosses and make racist
and anti-Semitic speeches.
40. For a similar position,
see Mari J. Matsuda, Public Response to Racist
Speech: Considering the Victim's Story, in
MATSUDA ET AL.,
supra note 28, at 40-41.
* This essay is a shorter version of Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 BOSTON UNIVERSITY LAW REVIEW-- (forthcoming Dec. 1998) [hereinafter Righting the Balance]. It was presented at the Chicago-Kent Legal Theory Workshop, and at the inaugural meeting of the Working Group on Law, Culture and Humanities held at Georgetown University Law Center, Washington, D.C., in March 1998. I am grateful to the participants in that session, especially Vincent Blasi, Charles Lawrence, Milton Regan, and Susan Williams, for their thoughtful comments on the issues raised by this essay, and to Alison Baldwin, Anita Bernstein, Jacob Corré, Michael Curtis, David Gerber, Carol Miller, Vincent Samar, and Steven Wilf for their reading of earlier drafts. I also learned much from conversations with Thomas Grey and Robert Post. Kerry Bartell, Jennifer O'Neill, and Lisa Weier provided valuable research assistance. Finally, I should like to express my deep gratitude for the research support provided by the Norman and Edna Freehling Scholars Fund, which made this project possible. If you are outside the US and would like to obtain a copy of the long version of this essay (approximately 165 pages), contact the Editor at kibbey@colorado.edu. back to top STEVEN J. HEYMAN is an associate professor of law at Chicago-Kent College of Law, Illinois Institute of Technology. He is the editor of Hate Speech and the Constitution (Garland Publishing 1996), and the author of numerous articles on constitutional and legal theory, including "Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression", 78 Boston University Law Review (forthcoming Dec. 1998), on which this essay is based. Copyright ©1998
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