Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment

Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment

by Richard Delgado, Jean Stefancic

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In Must We Defend Nazis?, Richard Delgado and Jean Stefancic set out to liberate speech from its current straight-jacket.
Over the past hundred years, almost all of American law has matured from the mechanical jurisprudence approach--which held that cases could be solved on the basis of legal rules and logic alone--to that of legal realism--which


In Must We Defend Nazis?, Richard Delgado and Jean Stefancic set out to liberate speech from its current straight-jacket.
Over the past hundred years, almost all of American law has matured from the mechanical jurisprudence approach--which held that cases could be solved on the basis of legal rules and logic alone--to that of legal realism--which maintains that legal reasoning must also take into account social policy, common sense, and experience. But in the area of free speech, the authors argue, such archaic formulas as the prohibition against content regulation, the maxim that the cure for bad speech is more speech, and the speech/act distinction continue to reign, creating a system which fails to take account of the harms speech can cause to disempowered, marginalized people.

Focusing on the issues of hate-speech and pornography, this volume examines the efforts of reformers to oblige society and law to take account of such harms. It contends that the values of free expression and equal dignity stand in reciprocal relation. Speech in any sort of meaningful sense requires equal dignity, equal access, and equal respect on the parts of all of the speakers in a dialogue; free speech, in other words, presupposes equality. The authors argue for a system of free speech which takes into account nuance, context-sensitivity, and competing values such as human dignity and equal protection of the law.

Editorial Reviews

A redefinition of the First Amendment in the light of hate-speech and pornography drawing on logic and reason in an area mired with emotion. Delgado and Stefancic (law, U. of Colorado) consider the difference between "mechanical jurisprudence" and "legal realism," arguing that the values of free expression and equal dignity stand in reciprocal relation<-->a concept which is not now represented by free speech legal proceedings. The authors also recommend a new system that takes into account context-sensitivity, human dignity, and equal protection of the law. Annotation c. by Book News, Inc., Portland, Or.
James L. Gibson
The central objective of this book is to answer the question that comprises its title: must we defend Nazis? The authors answer this query with an emphatic and unequivocal "no!" The ten chapters of this slim volume are devoting to reviewing and rebutting the arguments liberal critics (and especially the ACLU) have made against the various contemporary efforts to ban certain sorts of words and sentences. The closing sentence of the book sums up the authors' argument: "Sometimes, defending Nazis is simply defending Nazis" (p. 162). This concluding sentence also provides an indication of the quality and depth of the logic that goes into this book. The authors claim without hesitation that theirs is a "post-modern" analysis of the politics of the first amendment to the U.S. Constitution. By this they claim to capitalize on the following "postmodern insight": racist speech is different because it is the means by which society constructs a stigma-picture of disfavored groups. It is tacitly coordinated by its speakers in a broad design, each act of which seems harmless but which, in combination with others, crushes the spirits of its victims while creating culture at odds with our national values. Only by taking account of this group dimension can we capture the full power of racially scathing speech--and make good on our promises of equal citizenship to those who have so long been denied its reality (p. 69). Though I will leave it to others to "de-construct" phrases such as "tacitly coordinated," I do get the message that the authors somehow believe that postmodern analysis helps them understand how majorities maintain power over minorities. The stakes are high, for regulating speech provides the key to ending racism. Indeed, "hate speech" is the contemporary means by which the majority subjugates minorities. "Today, however, the formal mechanisms that maintained status and caste are gone or repealed. All this is left is speech and the social construction of reality. Hate speech has replaced formal slavery, Jim Crow laws, female subjugation, and Japanese internment as means to keep subordinate groups in line" (p. 160). And "hate speech" is more than just a single arrow in a larger quiver: "Hate speech today is a central weapon in the struggle by the empowered to maintain their position in the face of formerly subjugated groups clamoring for change" (p. 161). Further: "We have changed our social construct of the black from unfortunate victim and brave warrior to welfare leeches, unwed mothers, criminals, and untalented low-IQ affirmative action beneficiaries who take away jobs from more talented and deserving whites. The slur, sneer, ethnic joke, and most especially face-to-face hate speech are the main vehicles that have made this change possible" (p. 159, emphasis added). It follows then that were we only to regulate and prohibit speech such as ethnic jokes the problems of racism would subsist. One cannot but help by being impressed by the power "postmodernists" attribute to words. The authors' claims and proposals to cleanse speech are entirely conventional, and anyone who has paid attention to the debates about hate speech will find absolutely nothing novel or innovative in this analysis. The authors contend that words wound, that free speech has never been an absolute and unrestrained right, that clear precedent exists for limiting what people can say to and about each other, and that the crisis of racism in American society demands that new regulations be adopted. Specifically, their proposal is to prohibit "face-to-face invective calculated seriously to disrupt the victim's ability to function in a campus setting" (p. 105). Their alternative plan is to prohibit "hate speech" in the same fashion as existing torts "such as intentional infliction of emotional distress or group libel, with the race of the victim a 'special factor' calling for increased protection, as current rules and the Restatement of Torts already provide" (p. 105). There is certainly not much novel in these proposals, and many of the troublesome and difficult words (e.g., "calculated seriously") are given the typical superficial attention in their analysis. The author's are as sloppy about the definition of "hate speech" as their opponents fear. At times, they speak of face-to-face invective -- calling someone a dirty name. But at other times, they refer to "bad" speech without direct, one-on-one confrontation (e.g., Nazis marching in Skokie), and even want to include written speech (such as documents claiming that the Holocaust did not take place). This turns out to be a broad array of types of speech that the authors would ban. Further, though they are especially concerned about the impact of bad words on African Americans, they sometimes casually extend their arguments to women (e.g., in their 12 page chapter on pornography) and to miscellaneous other minorities. This is not a disciplined book: neither the organization, nor the logic, nor even the subject matter shows much evidence of careful thought. Indeed, one might wonder how pornography gets implicated in racism in America and that is a fair question. Unfortunately, the book is so poorly organized, the structure so disjointed, that one never knows what the next page will bring. Only one prediction is safe: the arguments made early in the book will be made over and over again. About the only obvious connection I can see between hate speech and pornography is that they are both things that the authors dislike. Because they are disliked, they should be banned. One suspects that that there are many more things the authors would ban, but there are, after all, only so many thoughts that can be crammed in 162 pages of text. The underlying premise of the book is obviously some form of communitarianism. The authors clearly prefer consensus to conflict, and consequently have little hesitance in referring to "we" throughout the book. It is entirely unclear that the authors accept the legitimacy of conflict, indeed even deep and intense conflict, within a democratic political system. They seem oblivious to the point that rule by consensus is the rule of tyranny, and that "we" does not and cannot exist in a multicultural, modern, industrialized society. In the end, the authors reveal a deep streak of anti-pluralism, and they are completely unwilling to accept the view that democracy requires that ideas be battled, not banned. I confess that there are many things about "post-modernist" analysis that I just don't get. Nor has reading this book made this style of analysis any clearer for me. From this book, I conclude that "postmodernist" analysis clearly does not seem to repudiate research based on logical positivist epistemological assumptions and methods. Indeed, the book is not entirely or even mainly about ideology and metaphysics; the authors refer repeatedly in this book to positivistic empirical questions and cite "hard-core" scientific literature. For instance, they make countless empirical arguments (e.g., serious racial incidents on campuses are widespread and on the rise), and refer repeatedly (if quite selectively) to empirical social science literature (e.g., research on racism and scapegoating), and cast hypotheses that are in principal testable (e.g., "low-grade racism benefits the status quo" -- p. 68). But I guess some distinguishing attribute of "postmodernist" analysis is that it only examines literature that is consistent with the author's ideological predispositions; that it caricatures literature to fit into neat ideological categories; that it give greater weight to ancient literature than to modern literature; that fuzzy logic predominates; and that it misunderstands basic concepts such as causality. In short, "postmodernist" analysis seems to me to be a license for doing bad science. If that is so, then these authors are "postmodernist" analysts par excellence. In sum, one should really not waste a moment of time reading this book. However one feels about the first amendment, there is nothing novel here. The literature references are so dated and so misused that is not even possible to steal the bibliography. The book might be useful as an exemplar for how not to do research, but my students learn more from positive examples than for negative examples of research. There is simply not much of value in this book.
An excellent book for general and academic readers.
Law and Social Inquiry
Delgado and Stefancic criticize what they see as the use of archaic formulas such as the prohibition against 'content' regulation, the maxim that the cure for bad speech is more speech, and the speech/act distinction.
.. Jurist
A valiant attempt to debunk traditional First Amendment attitudes on the issue of racist speech.

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New York University Press
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Meet the Author

Richard Delgado is Professor of Law at Seattle University and has collaborated on four previous books, including The Latino Condition, 2d edition (NYU Press, 2010), The Derrick Bell Reader (NYU Press, 2005), How Lawyers Lose Their Way: A Profession Fails Its Creative Minds, and Understanding Words That Wound.

Jean Stefancic is Research Professor of Law at Seattle University and is the author of many articles and books on civil rights, law reform, social change, including No Mercy: How Conservative Think Tanks and Foundations Changed America’s Social Agenda.

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