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When Words Collide:

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by Stephen Watson on 5 May 2014

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Transcript of When Words Collide:

R.A.V. v. St. Paul
Affirms liberalism, sidesteps more meaningful alterations of constitutional principles. Reflects conservatism, neutrality in the face of inequality
R. v. Keegstra
Directly confronts issues of disparaging rhetoric, affirms value of multiculturalism but at a loss of a distinct plurality. Demands intersubjectivity.
Case Highlighting Therapeutic Jurisprudence
Research Question:

When Words Collide:
Impacting A Constellation of Hate Speech Theory

What can varied legal approaches to censorship suggest about the simultaneous promotion of individual liberty and the protection of vulnerable pluralities;

or, what is good censorship?
Are they
just
words?
Censorship: the practice of suppressing expression deemed harmful to the welfare of your community
Origins
Censor: In ancient Rome, a magistrate charged with regulating political conduct and supervising public morality
Cato the Elder (234 - 149 B.C.E) - "From lightest words sometimes the direst quarrel springs"
Unsurprisingly, the office was subsumed by the emperor during the fall of the republic, after it's 400+ year lifespan
LIBERTY!
First Amendment
"Congress shall make
no law
... abridging the freedom of speech" - Ratified 1791
"A democracy cannot be both ignorant and free"
- Thomas Jefferson
The March of Liberty...
"to oppose any measure or measures of the government."
Alien and Sedition Acts - Signed into law 1798
Liberty?
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" - 14th Amendment
Rights of the Historically Disempowered
Schneck v. United States (1919)
Chaplinsky v. New Hampshire (1942)
"Clear and Present Danger"
Fighting Words
U.S. Focus on Immediate Threat
vs.
Less visible Harms
U.S.Freedom of Speech ≠ Inviolable
Explanations...
How to Gag: A Style Guide
First Amendment Absolutism
Few major proponents
Justices Hugo Black and William Douglas
"if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community"
Pro: Theoretically protects against intellectually immobilizing law
Con: Fails to enhance communal cohesion
Liberalism
Schneck v. United States
American Tradition
Position established through review of SCOTUS cases
Chaplinsky v. New Hampshire
R.A.V. v. St. Paul
Clear and Present Danger
Fighting Words
Viewpoint Neutrality
the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids.
Communitarianism
A majority of developed western governments have adopted such a model (e.g. Canada, France, Denmark, the Netherlands, United Kingdom, etc.)
Speech regulation promotes multiculturalism and suppresses discriminatory discourse
Canadian Supreme Court Case
R. v. Keegstra
Case defends freedom of expression under these qualifications;
(i)seeking and attaining truth;
(ii) encouraging participation in social and political decision-making; and
(iii) cultivating diversity in forms of individual self-fulfillment and human flourishing.
Therapeutic Jurisprudence
Role of the law as a therapeutic agent; the law itself as being a therapist.
A Forum, for 'em all!
Things left out:
Case highlighting challenges with free speech absolutism (e.g. Goebbels 1928)
Mental health diciple helps shape the development of the law
Statistical correlation - Hate language increase prevalence of mental health issues
Affirmed by liberal/communitarian weighing mechanisms
Best cases for preserving multicultural, or minority respect and equality are more directed, targeted.
The U.S. needs to catch up
Speech monopolization in the absence of regulation degrades individual liberty
Goebbels case
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