2. Two Types of Regulation
• Hate speech as such – Beauhearnais
• Hate speech in the form of fighting words
– R.A.V.
• United States as outlier
– Article 20, International Covenant on Civil and
Political Rights: “Any advocacy of national,
racial or religious hatred that constitutes
incitement to discrimination, hostility or
violence shall be prohibited by law.”
• U.S. reservation
3. Hate Speech as Such
• Group libel, on analogy to individual libel
– “False” statements that harm group’s reputation/standing in the
community
• “Falsity” or “opinion”?
• Group libel “insidiously undermines social attitudes”
– Non-cognitive effects?
– Cohen’s implications?
• Clash of constitutional values – speech and equality
– Revisit in connection with pornography
• Risk of use to punish politically disfavored points of view
– Why shouldn’t legislature be allowed to disfavor them (within
broad limits)?
4. Hate Speech as Fighting Words
• Fighting words of low value because:
– Slight social value outweighed by harm
– AND no essential part of exposition of ideas
• Specifically, by very utterance tend to
incite immediate breach of peace
– Non-cognitive aspect
– Social dimension and “male” framing
6. R.A.V. and Viewpoint
Discrimination
• Government taking sides
– If fighting words contribute nothing to an exposition of ideas, how
are there sides to take?
• “Papists” but not “anti-Catholic bigots” aren’t fighting words
– Obscenity example as a good counter-example
• Anti-Republican but not anti-Democratic obscenity prohibited
(character in George W. Bush mask engaged in sexual conduct)
• But, obscene elements aren’t anti-Republican or anti-Democratic
• Point of view lies in the non-obscene portions
• So: Government using the viewpoint in non-fighting
words component as basis for punishment one side
– Again, non-cognitive component: Is it segregable?
– Is there a cognitive component in R.A.V.?
7. Additional Problems
• Hostile environment discrimination
accomplished by words and other actions
– The words are content and even viewpoint-
based
– A “content-based subcategory [that] can be
swept up incidentally”
– Scope? – Cohen as words swept up in
category “disorderly conduct”?
• Perhaps offensive words aren’t a low-value
ctegory, while words of harassment are
8. A Speculative “Solution”
• Flip the argument
• R.A.V. suggests that the problem lies in allowing
government to target disfavored political
expression
– Again, the problem is that if they are fighting words
they don’t express anything propositional
• Alternative: Define low-value speech as that as
to which there’s no realistic possibility that the
government’s going to go after it because it’s
expressing a disfavored point of view
