Regulation of Hate Speech and Pornography after R.A.V.

Abstract

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation. I do not take it as a given that all governmental efforts to regulate such speech thus accord with the Constitution. What is more (and perhaps what is more important), the Supreme Court does not, and will not in the foreseeable future, take this latter proposition as a given either. If confirmation of this point were needed, it came last year in the shape of the Court's opinion in R.A.V. v City of St. Paul.' There, the Court struck down a so-called hate speech ordinance, in the process reiterating, in yet strengthened form, the tenet that the First Amendment presumptively prohibits the regulation of speech based upon its content, and especially upon its viewpoint. That decision demands a change in the nature of the debate on pornography and hate speech regulation. It does so for principled reasons-because it raises important and valid questions about which approaches to the regulation of hate speech and pornography properly should succeed in the courts. And it does so for purely pragmatic reasons-because it makes clear that certain approaches almost surely will not succeed. In making this claim, I do not mean to suggest that all efforts to regulate pornography and hate speech be suspended, on the