Cover

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Title Page, Copyright

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Contents

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pp. v-vi

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Preface

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pp. vii-x

Americans, by and large, are a practical, down-to-earth people, with no great love of grand theory. Lawyers, as a group, tend to be, if anything, more so. We love balancing tests, in which courts expressly and openly weigh the competing values in a case and tell us, in a written...

Acknowledgments

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pp. xi-xiv

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Part I: The Opening Salvo: Naming the Harm

A prime obstacle to reforming hate-speech and pornography law is the insistence by some that these forms of speech are harmless or that tolerating them is "the price we pay" for living in a free society. The...

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1. Words That Wound: How Racist Hate Speech Harms the Victim. Law's Earliest Responses

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pp. 3-26

Not long ago, in Contreras v. Crown Zellerbach, Inc.,1 the Washington Supreme Court held that a Mexican American's allegations that fellow employees had subjected him to a campaign of racial abuse stated a valid claim against his employer for the tort of outrage. The...

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2. Pornography and Harm to Women: How Even Social Scientists Have Sometimes Failed to See the Need for Relief

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pp. 27-38

As has happened with racist speech and insult, reformers have been advocating curbs on hard-core pornography. The impetus comes primarily from two camps: religious fundamentalists who argue against pornography on moral grounds, and many radical feminists who are concerned...

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Part II: The Assault on the Citadel: Legal Realism Shakes Up Orthodoxy

Building on the notions of harm developed in part I, in this part we put forward three key critiques of the First Amendment orthodoxy that, until now, have tolerated these harms—legal realism (mentioned in the Preface), indeterminacy (the discovery that every speech-related...

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3. First Amendment Formalism Is Giving Way to First Amendment Legal Realism

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pp. 41-45

In the last few years observers have noticed a sharp upsurge in intellectual activity surrounding the role of speech and expression. Reformers have been demonstrating how hate speech and pornography injure minorities and women. Postmodernists have been pointing out...

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4. Campus Anti-Racism Rules: Constitutional Narratives in Collusion: Or, Why There Are Always Two Ways of Looking at a Speech Controversy

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pp. 46-69

Over the past few years, more than two hundred university and college campuses have experienced racial unrest serious or graphic enough to be reported in the press. Most observers believe the increase in racial tension on the nation's campuses is real, and not just the product of...

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5. Images of the Outsider: Why the First Amendment Marketplace Cannot Remedy Systemic Social Ills. Social Science and Narrative Theory Are Questioning Faith in the Freemarket of Ideas

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pp. 70-92

Conventional First Amendment doctrine is beginning to show signs of strain. Outsider groups and women charge that free-speech law protects them inadequately against certain types of harm. On a more theoretical level, some scholars are questioning whether free expression...

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Part III: Retreat to Policy Analysis: "Even if What the Crits Say Is So…"

In the wake of three recent decisions, one by the United States Supreme Court dealing with punishment for hate crimes, two by the Canadian Supreme Court upholding limitations on pornography and hate speech, interest in campus anti-racism measures has revived. In the...

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6. Paternalistic Arguments against Hate-Speech Rules: Pressure Valves and Bloodied Chickens: The Liberals' Response to Crumbling of Certainty

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pp. 95-108

The dominant legal paradigm's resistance to change is not the only obstacle that hate-speech rule advocates confront: what we call paternalistic objections are deployed as well.1 These arguments all urge that hate-speech rules would harm their intended beneficiaries, and thus...

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7. The Toughlove School: Neoconservative Arguments against Hate-Speech Regulation: ("I Just Let It Roll Off My Back")

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pp. 109-121

In Babettes Feast,1 the French housekeeper for two dour Protestant sisters living in a remote Danish village where life is hard decides to mark her fourteenth year of working in this repressed environment by preparing a huge feast. Using money she has just won from...

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8. "But America Wouldn't Be America Anymore": The Experience of Other Countries Shows That Adopting Hate-Speech Rules Would Not Cause the Sky to Fall; America Would Be Even More American

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pp. 122-132

To this point, we have argued that hate speech of all kinds (including hard core pornography) is socially pernicious, with few redeeming qualities. We have also shown that the emerging conception of the First Amendment allows regulation, and that no policy argument stands in the...

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Part IV: "From Where I Sit"—The Special Problems of Judges and Progressive Lawyers

Up to this point, we have argued that hate speech harms its victims; that nothing in the emerging realist view of the First Amendment prevents society from taking steps to control that harm; and that good social policy does not stand in the way, either. Yet some judges and many...

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9. Hateful Speech, Loving Communities: Why Judges Are Sometimes Slower than Others at Seeing the Need for Reform

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pp. 135-148

As we mentioned earlier, the debate about hate speech features two camps, each of which views the controversy in quite different terms.1 One group, on learning about a proposed hate-speech code, immediately declares the proposal a free speech question. If one places...

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10. "The Speech We Hate": The Romantic Appeal of First Amendment Absolutism. Does Defending Nazis Really Strengthen the System of Free Speech?

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pp. 149-162

In The Brothers Karamazov, Alyosha, an impressionable young man, visits his mother's grave, where he has an intense religious experience.1 Transformed, he declares "I want to live for immortality, and I will accept no compromise."2 Having discovered God—the most...

Notes

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pp. 163-216

Index

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pp. 217-224

Back Cover

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