Banning Hate Speech and the Sticks and Stones Defense

Black college students are the targets of racial epithets from fellow students. Members of the American Nazi Party march through the heavily Jewish Chicago suburb of Skokie, wearing brownshirts and swastikas. Female employees encounter various expressions of misogynistic or otherwise female-degrading views from fellow employees or supervisors in the workplace. What these events have in common is that in all of them, the targets of the speech claim that the speech is harmful to them. Moreover, in all of them, the targets have sought to have the hateful speech legally suppressed through injunction (in Skokie),I campus hate speech codes,2 or Title VII's ban on various types of job discrimination.3 Finally, in all of them, the speakers have raised a first amendment defense against the attempts at legal suppression. A lot of recent scholarly attention has been focused on these and similar events, most of it concerned with whether and when the first amendment should bar suppression of this "hate speech."4 In addressing this issue, I, like most of the scholars, shall take "hate speech" to mean epithets conventionally understood to be insulting references to characteristics such as race, gender, nationality, ethnicity, religion, and sexual preference. Such epithets are the central targets of most campus speech codes; and speech codes are unlikely to be drafted or interpreted to apply to more measured expressions of views about race and