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32 Const. Comment. 527 (2017)
Hate Speech Bans, Democracy, and Political Legitimacy

handle is hein.journals/ccum32 and id is 535 raw text is: HATE SPEECH BANS, DEMOCRACY, AND POLITICAL LEGITIMACY James Weinstein* Laws prohibiting discrimination on the basis of characteristics such as race, ethnicity, religion, sex, or sexual orientation are an essential means by which modern liberal democracies promote equality and protect human dignity. Consistent with these laudable goals, most liberal democracies, with the notable exception of the United States, also prohibit hate speech, including expression that demeans people based on characteristics protected by antidiscrimination laws. Ironically, however, hate speech restrictions can undermine the legitimacy of antidiscrimination laws, both in terms of their popular acceptance but even more crucially with respect to the morality of their enforcement. For instance, laws forbidding people from expressing the view, as is the case in several European jurisdictions, that homosexuality is immoral or disordered, can destroy the moral justification of enforcing laws against sexual- orientation discrimination against religious dissenters. Conversely, the ability of Americans to freely oppose antidiscrimination laws by publicly expressing bigoted ideas about groups protected by these laws strengthens the legitimacy of enforcing these provisions even when doing so infringes upon deeply held religious convictions. In explicating this untoward effect of hate speech laws on the legitimacy of antidiscrimination measures, this Article explores more generally the relationship between free speech and political legitimacy, thereby explaining * Dan Cracchiolo Chair in Constitutional Law, Sandra Day O'Connor College of Law, Arizona State University. I am grateful to Larry Alexander, Trevor Allan, Dick Arenson, Terry Ball, Eric Barendt, Dan Bodansky, Paul Coleman, Peter de Marneffe, John Finnis, Ivan Hare, Jill Hasday, Eric Heinze, Jeff Murphy, Robert Post, Jake Rowbottom, Fred Schauer, Mary Sigler, Wayne Sumner and Jeremy Waldron for their helpful comments and to James Hall, Julie Hedberg, and Austin Yost for their valuable research assistance. 527

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