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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