9 Const. Comment. 17 (1992)
America's First Hate Speech Regulation

handle is hein.journals/ccum9 and id is 23 raw text is: AMERICA'S FIRST HATE SPEECH
Michael W. McConnell *
Americans have the endearing but frustrating tendency to view
every development in public life as if it were happening for the first
time. Each issue is a new thing under the sun. Now the issue of
hate speech-speech that is designed to degrade or injure other
people on the basis of their race, ethnic origin, sex, sexual orienta-
tion or other sensitive characteristic-is the hot new free speech
question. The law reviews are filled with learned analyses. Task
forces have been appointed. Colleges and universities are debating
the question. Legislation has been introduced in Congress.
Yet to my knowledge, none of the scholarly analyses of the
issue has attempted to draw on the American historical experience
with this problem. Hate speech is one of the oldest public issues
in America; the first law was enacted almost 350 years ago. The
question traditionally has been framed in these terms: to what ex-
tent does a liberal society require social conditions of mutual re-
spect and toleration, and to what extent may the force of law be
employed to attain or preserve those conditions? Attention to his-
torical experience may help us to appreciate both the roots of hate
speech regulation and some of its pitfalls.
The first hate speech regulation in America was Maryland's
Toleration Act of 1649.1 Maryland had been founded a few years
earlier by a Roman Catholic nobleman and friend of Charles I,
Lord Baltimore. Lord Baltimore intended to make Maryland a ha-
ven for his fellow Catholics (who at that time were severely perse-
cuted in the mother country) and to extend protection to other
dissenters from the Church of England as well. The Toleration Act,
which precedes by forty years the famous act of Parliament by that
name, was enacted by the colonial legislature, superseding a similar
* Professor of Law, University of Chicago. Thanks are due to Al Alschuler, Anne-
Marie Burley, David Currie, Richard Epstein, Abner Greene, Geoffrey Stone, David Strauss,
and Cass Sunstein for helpful comments on an earlier draft, to Ruth Bader Ginsburg for
encouragement to commit these ideas to paper, and to the Russell Baker Fund and the Class
of '49 Dean's Discretionary Fund for financial support.
1. Maryland Acts of Assembly, I, 244, quoted in Sanford H. Cobb, The Rise of Reli-
gious Liberty in America 376 (1902, reprinted Cooper Square, 1968) (Religious Liberty).

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