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.


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