Against the backdrop of ongoing controversies over hate speech and pornography, Nicholas Wolfson, the George and Helen
England Professor of Law at the University of Connecticut, has developed a stimulating and passionate argument for increasing
the scope of the free speech guarantee. Professor Wolfson's volume, developed in part from his earlier law review work, takes
the form of a defense against the threat posed to traditional free speech doctrines by critics such as Mari Matsuda, Catharine
Mackinnon and Charles Lawrence. Professor Wolfson proposes to fight the good fight on behalf of a more libertarian
approach to speech; in so doing he aims to provide a persuasive answer to the central question: "Why should we permit hateful
or sexually offensive speech?"
The first chapter is a general introduction to the free speech battlefield. Traditional liberal approaches to free speech are under
attack by feminists and minorities who seek to expand the power of the state to regulate offensive speech. Speech, however,
has a central role in the development of our world and our understanding of ourselves; when it is threatened we face a "leveling
of speech [which] might reduce and diminish the human spirit." (p. 5) Wolfson underlines the irony here: groups formerly denied
access to power currently seek to change the very rules that aided their cause(s). The changes they propose are, in Wolfson's
view, clearly detrimental to core free speech values.
In the second chapter Professor Wolfson explains the relationship between truth, free speech and pragmatism. He argues that
truth is simply the product of consensus, that consensus can never be final, and that a liberal approach to free speech protects
the societal "conversation" that epitomizes our search for truth. His sources are a diverse group: Jacques Derrida, John Dewey,
Charles Pierce and Richard Posner. As Posner puts it: "Truth is what free inquiry--unforced, undistorted, and
uninterrupted--would eventually discover about the objects of inquiry. Since the process of inquiry never ends, this implies that
truth always lies beyond our horizon: it is there but we aren't." (p. 18) Consequently those who assert the power to ban some
speech from the Holmesian marketplace are implicitly asserting a knowledge of indisputable truth. This is an absolutism that
Wolfson cannot abide: "Absolutism in every form is fundamentally contrary to First Amendment doctrine." (p. 26)
Wolfson identifies three primary reasons to support "strong free speech." Speech is critical to: a) the search for an elusive truth,
b) the advance of democracy, and c) the development of human autonomy. In all three instances, society can only lose if some
groups act as censors in the marketplace of ideas. Our lack of certainty about what is good for democracy, good for truth, or
good for our own development, should instruct us to leave our minds open to any speech that could be persuasive. That is the
core of the pragmatic approach.
As for the Supreme Court, it has disappointed Wolfson in its half-hearted embrace of pragmatism. Acting vigorously to protect
political speech (a good thing), it has not offered the same level of protection to commercial speech (a bad thing). The Court
has also made the mistake of denying obscenity free speech protection--although the concession to speech of serious literary,
artistic, political or scientific value goes part way to pleasing the pragmatists. Wolfson also criticizes current defamation law:
allowing individual courts to rule on truth/falsity is at odds with underlying pragmatic principles.
Throughout this argument Wolfson relies heavily on the slippery slope analogy. If we allow feminists and minorities to punish
"unpopular speech" today, there is no telling where that process will end. Thus while racist/sexist may cause problems, the cure
of censorship is worse than the disease.
Chapter three is devoted to hate speech alone. In fear of a free market of ideas "limited to bloodless cerebral cogitation" (p.
48), Wolfson is willing to defend the protection of hate speech. The First Amendment's purpose is to safeguard speech that the
government deems harmful. Various means of attacking hate speech are analyzed and found wanting. Defamation law "chills
free speech" and rests on a "frequently impossible distinction" between facts and opinions (p. 49). The suggestion that only
epithets be subject to penalty is also a problem: it protects highbrow forms of insults that are no better than the "kike" or
"nigger" used on the street. (Wolfson cites Shakespeare and the Bible among the highbrow hate speech genre). Some argue
that hate speech has no content and for that reason should lose legal protection. Wolfson counters that much mass
entertainment lacks content as well. Some argue that hate speech is punishable because it causes emotional distress--Wolfson
counters that much intellectual debate is distressing to the participants, but that is no reason to ban it. He might well have relied
on the wit of George Bernard Shaw: "All great truths begin as blasphemies."
The most striking argument presented in this section concerns the proposition that speech is punishable when it causes harm.
Wolfson disagrees; using harm as a criterion opens the door to "government thought control" (p. 57). Harm is too subjective;
we risk the return of the "disreputable fighting words doctrine" (p. 63). Pervasive as ever is the risk of the slippery slope. He
does allow one exception: "speech that is too closely brigaded with (simple) violent behavior is not protected." (p. 59) This, as
scholars of First Amendment law will recognize, is a restatement of the Supreme Court decision in BRANDENBURG V
OHIO.
In the fourth chapter Wolfson addresses the question of inequality. His objective is to reveal how the arguments of feminists and
minorities are based on a loss of faith in the marketplace of ideas. They rely on victim status to argue for retaliatory regulation in
the form of "equalizing" speech. Wolfson links such propositions to elitism, and to the "old argument of orthodox Marxists" (p
85.) He contemplates a world where "[s]peeches, books and articles emphasizing the role of women in the home may be
censored." (p. 91) Further, to equalize speech requires a process of selecting favored minority groups (women--yes,
skinheads--no?), followed by an allocation of speech resources. Wolfson offers no examples of this phenomenon, but maybe
government subsidy of public service advertisements would fit the bill. In any case, allocation will be a disaster; as Michael
Novak notes, allocative systems simply "give superior benefits to those groups with superior organizational powers" (p. 89).
The disenfranchised, the people at the heart of the inequality argument, will gain nothing.
In the fifth chapter Wolfson turns to obscenity, pornography and eroticism--terms which, he says, refer to a dispute, not to
anything concrete or harmful. He presents a brief but instructive history of pornography, emphasizing its political past
(anti-aristocracy, pro-equality). He outlines the importance of homosexuality in western societies; he argues that matters of
sexuality are more important than the banalities of political discourse given elevated status by the Supreme Court. On the
question of feminist attacks on pornography, he relies on the opinion of Judge Easterbrook in AMERICAN BOOKSELLERS
v HUDNUT. Easterbrook's analysis comes close to a pragmatic approach: it is best to allow insidious speech when the only
alternative is to open the door to endless censorship (a.k.a. the slippery slope).
While Professor Wolfson argues his case passionately, critical flaws are apparent throughout the text. From the beginning his
analysis veers toward diatribe. Something is off-key when the first two examples of hate speech used by the author are:
Huckleberry Finn and the Bible (both on page 1). We are a long way from burning-crosses on the lawn of a black family in the
middle of the night (see R.A.V. v CITY OF ST. PAUL). On occasion he allows his suspicion of the enemy to veer toward
paranoia: he links the analysis of Catharine Mackinnon to the Spanish Inquisition, he anticipates not just the marginalization of
Plato, Aristotle and Locke, but "censorship [designed] to eliminate [their] influence." (p.76). His critics want a "powerful state
organ to command speech equality" (p. 99). He demonizes the enemy by linking critics of current First Amendment doctrine to
support of "affirmative action quotas, [and] the right to abortion on demand" (p. 39).
At least five problems emerge in a close reading of the structure of his argument. First, if protecting the truth and avoiding harm
fail to work as legitimate criteria for punishing speech, then surely we have fallen into First Amendment absolutism. He
continually asserts that the First Amendment must protect offensive, harmful, false, injurious, distressing, worthless speech. With
one brief exception, he sees no limit to that principle. He underestimates the slippery slope argument; it destroys all in its path.
Any punishment of any form of speech opens the door for more censorship. Protection of all speech, no matter its content or
consequences, is the only solution. But then on what ground can laws against perjury be maintained? And what about laws
against child pornography?
Second, the exception made for speech brigaded to immediate physical harm contradicts his own assertions: The "First
Amendment is designed to protect speech that harms." (p. 58) If "harm ... is the measure by which we regulate speech there
will be nothing left of the First Amendment." (p. 57) "The purpose of free speech protection is to safeguard speech that the
government views as harmful." (p.49) Why is physical harm such a priority? (Why risk the danger of the omnivorous censor on
the basis of a broken limb?). Is speech, which is destructive in a non-physical way (e.g. perjury) inevitably a low priority? Why
does his Brandenburg position not create a slippery slope of its own?
Third, Professor Wolfson identifies the usual categories of unprotected speech (fighting words, obscenity, defamation, and the
"clear and present danger" zone) and finds fault with each. He ignores one other unprotected category of speech: child
pornography (see NEW YORK V FERBER). Are there any good reasons to ban that aspect of free trade in the market of
ideas? This is a particularly tricky subject, as his defense of sexual speech includes a description of the ancient Greeks approval
of "man-boy" relationships. Wolfson is circumspect on this, acknowledging only that "the man-boy erotic relationship is
especially problematical in modern Western society." (p. 116) His silence on the legitimacy of punishing producers of child
pornography is deeply frustrating. Is another slippery slope emerging from the shadows?
Fourth, the chapter on inequality raises many unanswered questions. It is the shortest of the four substantive chapters, partly
because so little space is devoted to the significance of the Fourteenth Amendment. If he had addressed what the equal
protection clause means, and more importantly, how it affects the First Amendment, he could have enhanced his argument
substantially. Instead the Fourteenth Amendment first appears halfway through the chapter, it then plays only a cameo role. The
inequality chapter does produce some good arguments, but, as he attacks a radical position, he identifies only one person who
has made the radical claim (Mari Matsuda in a 1987 law review article). The whole exercise takes on a
mountain-out-of-a-molehill quality.
Fifth and perhaps most important, Professor Wolfson fails to address the advantages of a Supreme Court that is not constant in
its free speech doctrine. Instead he naively assumes that once the Court allows some limit to free speech (say, defamation) then
it will fall sway to whatever the censorious mob demands. However the historical record is more complex than that. Yes, the
Court has fallen into wartime paranoia (he cites, correctly, the Communist speech cases of the 1950s).
On the other hand the Court stood firm on flag burning, despite an overwhelming majority in the polity, and in the elected
branches, against their decision. The Court also stood firm against a salute-the-flag mob in 1943, in war time no less. The fact
that the Court is a creature of politics, and not an oracle of pragmatist truth, gives it an advantage in a system of checks and
balances. Doctrinal inconsistency may be problematic to the First Amendment scholar, but it serves the Court well, and in the
long run has served the First Amendment well. Theory and evidence suggest that the Supreme Court is usually able to distance
itself from the trends and demands that plague the elected branches. Yes, First Amendment law has some slippery slopes, but
the Justices have held the terrain quite well.
Professor Wolfson's argument is certainly provocative and often instructive. Unfortunately it fails to provide a reliable principle
for the development of free speech law. The dilemmas posed by hate speech regulation remain in place.
Cases
AMERICAN BOOKSELLERS v HUDNUT 771 F2d 323 (1985)
BRANDENBURG v OHIO 395 U.S. 444 (1969)
NEW YORK v FERBER 458 U.S. 747 (1982)
R.A.V. v CITY OF ST. PAUL 505 U.S. 377 (1992)
