American constitutional law is exceptionally protective of racist speech. Racist speech is criminally punishable in many western democracies, even though these countries’ laws also protect the freedom of expression. Furthermore, many European countries punish Holocaust denial, based on the understanding that it is a form of racist, anti-Semitic propaganda. In the United States, however, racist speech is protected by the First Amendment's free-speech guarantee. To the American legal mind, the punishment of Holocaust denial would not even constitute a hard case: such a prohibition would be a paradigmatic violation of the First Amendment's free-speech guarantee.

A close engagement with the foreign practice of prohibiting Holocaust denial can shed light on the normative and descriptive propositions underlying our protection of racist speech. In contrasting American racist-speech doctrine with the French experience of prohibiting and punishing Holocaust denial, this chapter compares the two legal cultures’ different understandings of the processes by which a democratic state legitimates its authority to govern a society in which racial minorities are now equal citizens. These divergent accounts of democratic legitimacy have implications for the manner in which the legal system pursues racial equality.