Martha Minow, Regulating Hatred: Whose Speech, Whose Crimes, Whose Power?--An Essay for Kenneth Karst 47 UCLA L. Rev. 1253 (2000).
Abstract: Inspired by Kenneth Karst's scholarly contributions to a vision of an inclusive “we,” this Article examines arguments for and against regulations of hate speech and hate crime. Proponents rightly identify how both kinds of restrictions recognize real harms from venomous speech and actions directed at people because of their group membership and also contribute to communal understanding about the permissibility of group-based hatred. Opponents rightly emphasize the value of unfettered expression in diverting energy behind destructive ideologies, the risks of greater enforcement against members of vulnerable groups, and the vital role of freedom in struggles for equality and tolerance. Opponents of hate crime regulation are unconvincing in their claim that such laws abridge freedom of expression, but proponents are also wrong to imagine that these would be effective measures in curbing group hatred. The Article concludes by urging that struggles against group-based hatred should shift to combat the sources and the processes of dehumanization. This means addressing the conditions that make such hatred and its expression seem acceptable as well as devising strategies such as civil damages litigation, which empower those who are the likely targets of other people's aggression.