The First Amendment continues under assault from conservatives, who find its ringing endorsement of free speech at odds with their agenda for control of the United States.
Law Professor Richard Delgado of the University of Colorado, joined by research associate Jean Stefancic, presents a strident argument for weakening one of our most important rights in the new book, Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment (New York University Press, $26.95).
Not surprisingly, they offer reasoning that is based on rickety assumptions, and even they seem unwilling to admit that tearing down the amendment is on their minds. They suggest that so-called "hate speech," which they define as language "intended to demean through reference to race" would be actionable. They claim that an independent tort "would protect the interests of personality and equal citizenship. . . thereby affirming the right of all citizens to lead their lives free from attacks on their dignity and psychological integrity."
The writer attack pornography as products created for a market that "wants women passive, active, or abused and repressed." They see porn as a transition, in that it allegedly teaches woman what may be done to them and shows men what could be done. As a first step in their prohibition of pornography, they suggest laws prohibiting snuff films, while "saving treatment of the more general problem for another time." In other words, porn is bad, but we don't need to do much about it yet. Sounds wishy-washy to me.
Delgado and Stefancic believe that the formalist view of the First Amendment is passing into history, making way for a "much more nuanced, skeptical, and realistic view" of what speech can do. They're looking in places I've not found.
Declaring that language and expression can sometimes serve as "instruments of positive harm," they see scoundrels and bigots hiding under the First Amendment mantle. They therefore call for restricting "no-value speech, or negative-value speech." Whatever that might be.
Defying the old saw that the cure is more speech, they contend the question should be, "The cure is more equality." In seeking to gag free speech on college campuses, they want to protect the dignity and self-regard of vulnerable young minority undergraduates and other targets of hate speech. This is repulsive reasoning, which would be laughable save for the fact that the authors appear to be completely serious. That makes the book a dangerous instrument, but definitely not one that I would call for banning.
After nearly 150 pages of laying out their case, they admit that prospects for change, through the courts, "are not particularly good."
Hooray and thank goodness.
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