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This chapter examines the prevailing assumption that the value of freedom of speech itself is necessarily only or best served by permitting racist hate speech. It is argued that anything worthy of the label ‘freedom of speech’ must satisfy three relatively minimal conditions, namely, minimal distribution, minimal comprehension, and minimal consideration. If racist hate speech silences other speech by interfering with its production/distribution, comprehension, or consideration, then racist hate speech may function to undermine, rather than exemplify or enhance, freedom of speech. If so, there might be a free speech argument against permitting racist hate speech. The chapter provides a novel framework within which such claims can be evaluated.

In this chapter, it is argued that some instances of racist hate speech are speech acts that constitute illegal acts of racial discrimination. By identifying a previously overlooked mechanism by which utterances enact norms (the covert exercitive), one comes to see that some racist hate speech enacts discriminatory norms in public places. Such speech thus acts very similarly to ‘Whites Only’ signs. This result has two important consequences. First, it affords at least a prima facie case for the regulation of this subset of racist hate speech. Second, it disproves a certain naive conception of so-called political speech. Although both racist hate speech and ‘Whites Only’ signs express political messages, they do not and should not count as political speech for the purposes of a free speech principle. Thus, expressing a political opinion is insufficient for being political speech (in the relevant sense).

This chapter considers whether ordinary instances of racist hate speech can be authoritative, thereby constituting the subordination of people of color. It is often said that ordinary speakers cannot subordinate because they lack authority. Here it is argued that there are more ways in which speakers can come to have authority than have been generally recognized. In part, this is because authority has been taken to be too closely tied to social position. This chapter presents a series of examples which show that speaker authority needn’t derive from social position at all. Moreover, these examples also show that a speaker can come to have authority even when they lack it prior to speaking. After distinguishing these different ways in which speakers can come to have authority, it is argued that there is ample reason to think that even producers of ordinary instances of racist hate speech can sometimes have authority in these ways.

One important question is whether it is right to treat political speech as more worthy of protection than other types of speech. To some extent this entails arguments similar to the arguments related to according freedom of expression special protection against government interference. Some of those arguments do suggest that political speech should occupy what is referred to in American constitutional jurisprudence as a ‘preferred position’; courts should be less prepared to countenance abridgements of political and social discussion than they should restrictions on literature, pornography, or commercial advertising. The implications of this differential treatment can be explored in four areas of political speech that are discussed in this chapter: sedition and related offences, racist hate speech, blasphemy and incitement to religious hatred, and disclosure of official secrets.

The chapter outlines how ICERD has traditionally had an outlier status among international human rights treaties in respect of racist hate speech due to its heavy reliance on the criminalisation of certain types of expression in order to combat racism. The recent General Recommendation 35 recognises that ICERD as a living instrument must be better synchronised and informed by contemporary understandings of racist hate speech, its causes, manifestations and impact.

This chapter applies the phenomenon of covert exercitives to free speech issues. The main goal is to show that because racist speech in public places enacts discriminatory norms, there is a harm prevention justification for its legal actionability. In the process, the philosophical foundations of a free speech principle are presented. Various justifications for extending special protections to speech are discussed; issues about the scope of a free speech principle are identified, and the conditions for legitimate regulation are presented. Several argumentative strategies for speech regulation are discussed and one is shown to be preferable. The actionability of some racist speech in some public spaces is supported using that strategy.

This book has explored racist speech as well as sexist and homophobic speech by tracing the history of the nature of obscenity back to ancient Greece and Rome. It has shown that pornography was accepted in some cultures and eras but was considered obscene in others. It has discussed sexual depiction as the hallmark of pornography, and shame and degradation as the hallmark of obscenity. The book's thesis is that pornography becomes obscene when it can be the source of a degraded view of humanity. It has also highlighted the difference between the degradation of hate speech and the degradation of obscenity.

This book has explored racist speech as well as sexist and homophobic speech by tracing the history of the nature of obscenity back to ancient Greece and Rome. It has shown that pornography was accepted in some cultures and eras but was considered obscene in others. It has discussed sexual depiction as the hallmark of pornography, and shame and degradation as the hallmark of obscenity. The book's thesis is that pornography becomes obscene when it can be the source of a degraded view of humanity. It has also highlighted the difference between the degradation of hate speech and the degradation of obscenity.

This book explores hate speech and what is wrong with it using the concepts of obscenity. It traces the history of how societies have accepted pornographic depictions or have rejected those depictions through lists of banned books or antiobscenity laws. It examines what bans on obscenity, or other reactions to pornography, have been all about, along with the factors that make a word or phrase acceptable or unacceptable. The first part of the book discusses the history of how societies have treated sexual images while the second part focuses on the legal test for obscenity and how it is applied to incidents of potential hate speech. It also analyzes the obscenity doctrine that finds objectionable material presented to children that might be acceptable for adults in the context of racist, sexist, and homophobic speech. In this introduction, a clarification is made regarding the nature of obscenity and how it differs from pornography.

This book explores hate speech and what is wrong with it using the concepts of obscenity. It traces the history of how societies have accepted pornographic depictions or have rejected those depictions through lists of banned books or antiobscenity laws. It examines what bans on obscenity, or other reactions to pornography, have been all about, along with the factors that make a word or phrase acceptable or unacceptable. The first part of the book discusses the history of how societies have treated sexual images while the second part focuses on the legal test for obscenity and how it is applied to incidents of potential hate speech. It also analyzes the obscenity doctrine that finds objectionable material presented to children that might be acceptable for adults in the context of racist, sexist, and homophobic speech. In this introduction, a clarification is made regarding the nature of obscenity and how it differs from pornography.

This chapter places Frederick Douglass in the pantheon of America’s Founding Fathers because the orator, statesman, and former slave exercised his natural right to free speech without waiting for the courts or legislator to grant this right to him. Douglass argues that disputing the humanity of an interlocutor does not qualify as speech as intended by the First Amendment. The chapter shifts the focus from free speech as American democracy’s bedrock principle to the equally critical and inalienable principle of equality. The discussion includes the concept that free speech must be rooted in equality, poses the question of whether free speech depends on one’s legal status, and reaffirms that inherent humanity is not up for debate.