HATE SPEECH AND THE MIND-BODY PROBLEM: A Critique of Postmodern Censorship Theory

Abstract

—S. Johnson and S. Fish S TANLEY F ISH , T HERE ’ S N O S UCH T HING AS F REE S PEECH —A ND It’ S A G OOD T HING , T OO 102 (1994). It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. —F. Frankfurter United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting). There is a new reason for censorship. It has to do with the “mind-body problem” and, although philosophers are still working on this problem, preliminary results indicate that some of our most cherished First Amendment principles are at best “surprisingly naive” and at worst “a metaphysical mistake.” Susan J. Brison, Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence , 4 L EGAL T HEORY 39, 40, 61 (1998). Briefly put, the mind and the body are intimately, if somewhat mysteriously, connected. Hate speech, which causes mental distress, also causes physical distress. Hate speech thus deserves no special place in our pantheon of expressive liberties and should receive no greater constitutional protection than ordinary physical crimes such as assault.