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32 Const. Comment. 687 (2017)
Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech

handle is hein.journals/ccum32 and id is 695 raw text is: VIEWPOINT DISCRIMINATION, HATE SPEECH LAWS, AND THE DOUBLE-SIDED NATURE OF FREEDOM OF SPEECH Adrienne Stone* The essays to which we are responding take the long and rather well-worn debate about hate speech in new directions. Weinstein's central claim, which Waldron rejects, is that hate speech laws can undermine the legitimacy of the legal system as a whole and of particular downstream laws, such as laws prohibiting racial discrimination. I found three features of this debate especially eye-catching. The first is Weinstein's reliance on the concept of viewpoint discrimination. As a comparativist of freedom of speech, it is always striking to see an aspect of First Amendment law invoked as a core principle of freedom of speech, given that in its aversion to viewpoint discrimination (like much else) First Amendment law is highly unusual.' In other countries - like Canada and Australia - viewpoint discrimination is relevant to the determining the law's validity but does not carry anything like the weight it does in First Amendment law.2 * Redmond Barry Distinguished Professor, Kathleen Fitzpatrick Australian Laureate Fellow, Director of the Centre for Comparative Constitutional Studies, Melbourne Law School. 1. For a discussion of the First Amendment in the comparative context, see Frederick Schauer, The Exceptional First Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 29 (Michael Ignatieff ed., 2005); Adrienne Stone, The Comparative Constitutional Law of Freedom of Expression, in RESEARCH HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAw 406 (Rosalind Dixon & Tom Ginsburg eds., 2011). 2. In Canadian law, if a law has the purpose of limiting expression it is, by virtue of that purpose alone, taken to infringe section 2(b) of the Canadian Charter of Rights and Freedoms. The need for a factual inquiry into the effects of the law is thus obviated. However, this finding does not invalidate the law, rather the Court proceeds to apply section 1 of the Charter to determine whether the law is reasonably necessary in a free and democratic society. See Irwin Toy v. Quebec, 11989 1 S.C.R. 972. In Australian law, the High Court of Australia has adopted a distinction between a direct and incidental burden on freedom of expression that appears at least partially to track the distinction between content-based and content-neutral laws. Hogan v Hinch, 120111 243 CLR 506, 687

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