Jack Balkin has an extremely interesting post at Balkinization in which he emphasizes the role of the market in combating the kind of hate speech deployed by Pastor Jones. He contrasts Europe's tendency to regulate hate speech by law with the U.S. tendency to use social pressures to limit such speech.
In reflecting on this, I am led to the view that neither the market nor a legal regime are terribly effective in dealing with hate speech. I am persuaded by Paul Krugman's claim in The Conscience of a Liberal that the Republicans use of race in many campaigns over decades has been a crucial factor in their rise to power (although he argues in the book that racism is on the decline and argues that the demographics are moving against the future success of such appeals).
At the same time any hate speech legislation with a prayer of passing would strike at speech far narrower than that employed by Republicans over the years. I think it is an interesting question whether narrowly crafted hate speech legislation would be effective and contribute to a decline of racism or whether it would tend to legitimize speech that did not follow within its scope and discourage public criticism. I once argued that hate speech legislation would be counterproductive because of the racist character of our society. I continue to believe the latter is true, but I am less confident in my judgment about the consequences that would follow from such legislation. I am inclined to think that hate speech codes on college campuses might be valuable in supporting dignity and equality and that the free speech values implicated are marginal.
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