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Mark Tushnet, Hate Speech (Harv. Pub. L. Working Paper No. 24-30, 2024).


Abstract: Hate speech consists of words of abuse or disparagement about racial and other minorities. Advocates for its regulation contend that hate speech contributes to the silencing of its targets, makes them feel unwelcome in public spaces, and reinforces existing practices of discrimination. Legal regulation of hate speech can alleviate those harms, though its effectiveness might be limited. Enforcement of laws against hate speech can cause collateral damage by deterring some speakers from saying things about public policy affecting minorities that might be mistakenly characterized as hate speech, and by discriminatory enforcement. The United States is exceptional among the world's liberal democracies in its unwillingness to treat hate speech regulation as consistent with the constitutional protection of expression. The reasons for this exceptionalism include differences among constitutional texts, doctrines dealing with the direct effects of constitutional guarantees of equality on private actors, variation in institutional capacity to guard against abusive enforcement of hate speech laws, and variations the public trust 1 This is a draft chapter. The final version will be available in Elgar Companion to Free Expression edited by Alan Chen and Ashutosh Bhagwat, to be published in 2025, Edward Elgar Publishing Ltd.