The Harm in Hate Speech: A Critique of the Empirical and Legal Bases of Hate Speech Regulation
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The Harm in Hate Speech:
A Critique of the Empirical and Legal Bases
of Hate Speech Regulation
by JOHN T. BENNETT*
Introduction
Proposals to regulate hate speech are often premised on the societal
consequences of racist or sexist speech: mainly, the psychological toll of
bigotry on minorities and widespread gender or racial inequalities in
American life.' Specifically, proposals for hate speech regulation rest on
two largely unexamined premises: that hate speech causes social harm and
that the degree of speech-based harm is so severe that speech regulations
are warranted. The first premise is empirical. The second premise densely
interweaves empirical and constitutional analysis. This article explores
each premise in order to critique proposals for hate speech regulation.2
Unsupported claims about the cause and effect relationship between
speech and social harm are common in the literature on hate speech
regulation. For instance, then-professor Elena Kagan once asserted, I take
* John T. Bennett, M.A., Social Science Research, University of Chicago ('07); J.D.,
Emory University School of Law ('12). Mr. Bennett is a Captain in the U.S. Army JAG Corps,
and has served in Iraq, Afghanistan, and Djibouti. The analysis and opinions contained herein are
solely those of the author, and do not reflect the views of the United States government, the
Department of Defense, the United States Army, or any other official body in connection with the
author.
1. See, e.g., Richard Delgado, Words That Wound: A Tort Action For Racial Insults,
Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 136-49 (1982) [hereinafter
Delgado, Words That Wound] (indicating that victims of hate speech often suffer behavioral and
psychological problems); N. Douglas Wells, Whose Community? Whose Rights?-Response to
Professor Fiss, 24 CAP. U. L. REV. 319, 320 (1995) (The harm caused by hate speech is greater
than the psychological harm to the victims of hate speech; it also includes harm to society at
large.).
2. This article will generally use the description speech regulation instead of
censorship. Censorship can be a descriptive or pejorative term, or both. Speech regulation
is more value neutral and less conclusory. While this article does not eschew normative
considerations, the term censorship will be reserved for historical policies that are widely
agreed to have constituted censorship.
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The Harm in Hate Speech: A Critique of the Empirical and Legal Bases of Hate Speech Regulation
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