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1994 Wis. L. Rev. 1425 (1994)
Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech

handle is hein.journals/wlr1994 and id is 1441 raw text is: TALKING ABOUT HATE SPEECH: A RHETORICAL ANALYSIS OF AMERICAN AND CANADIAN APPROACHES TO THE REGULATION OF HATE SPEECH MAYO MORAN* The current debate over hate speech, although vigorous, is ultimately unsatisfactory. Both opponents and supporters of hate speech regulation fail to truly engage with the contending point of view. The debate appears to have reached a stalemate, resulting in commentators on both sides simply repeating formulaic versions of their preferred arguments. Despite all the talk, there is little conversation about the problem of hate speech. This Article analyzes the unsatisfactory nature of the current debate about hate speech and suggests that comparative jurisprudence may provide a way out of the impasse. A rhetorical analysis of the American jurisprudence on hate speech provides a starting point for understanding the current impasse. By analyzing how the problem of hate speech is contextualized, how the participants in the hate speech conflict are characterized, and how the judge constructs the judicial role, it is possible to uncover the deepest unarticulated commitments of the hate speech discourse. When these discursive practices and their underlying commitments are contrasted with the body of academic literature designed to challenge this official narrative of hate speech, the reason for the stalemate becomes apparent. The unofficial narrative, which focuses on the impact of hate speech on the targets, relies on commitments that are profoundly at odds with those of the official narrative, although they are similarly unarticulated. The result is that the two sides in the hate speech debate appear to talk past each other. The arguments arising from the unofficial narrative also appear to be simply beside the point, interesting perhaps, but ultimately outside the bounds of legal debate. However, whatever one thinks of the result, the official narrative's failure to seriously engage with the alternative point of view is unsatisfactory as a means of doing justice. Refusing to listen to the voices of the excluded may be effective for preserving the status quo, but it renders the hate speech opinions vulnerable, not only because it raises equality concerns but also because of the way that it constructs the role of judging. If the unofficial narrative is unlikely to make itself heard, comparative jurisprudence may prove a more fruitful means of revivifying the hate speech debate. By comparing the American jurisprudence on hate speech with the rhetoric of the recent Canadian Supreme Court jurisprudence on hate speech, the working assumptions of each discourse become apparent. Comparison reveals the deeply contested and yet unstated choices that shape each body of law-the facts that are relevant, the privileged perspective on those facts, the framing of the legal question, and the appropriate context * Faculty of Law, University of Toronto. LL.B. (McGill), LL.M. (Michigan), S.J.D. candidate (University of Toronto). The research for this Article was supported by McGill University and the University of Michigan Law School. I also wish to thank J.B. White and L.C. Bollinger for their invaluable support and assistance and Douglas Cunningham for many helpful suggestions and references.

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