One way to try to justify hate speech restrictions is to argue from categories of expression that most people already accept as legitimate subjects of constraint. I argued in Chapter 6 that such arguments are unsuccessful. The kinds of cases in which most people agree that it’s morally unobjectionable to restrict people’s freedom of expression can’t be used to show that hate speech restrictions are morally unobjectionable. The lesson I’m inclined to draw from this analysis is: so much the worse for hate speech restrictions. But a defender of hate speech restrictions might instead draw a very different lesson: so much the worse for the traditional limits on legitimately restricting freedom of expression. Rather than trying to justify hate speech restrictions by appealing to an already existing category of unprotected speech, that is, supporters of such restrictions might instead try to justify them by carving out a new category of speech that may unobjectionably be restricted and by showing that hate speech belongs in this new category. And, in fact, three of the most prominent and potentially powerful arguments for restricting hate speech in the contemporary literature have precisely this structure. I want to conclude my discussion of hate speech restrictions in this chapter, then, by considering these three arguments in turn and by explaining why they, too, strike me as unsuccessful.

Words that Wound

One argument of this sort appeals to the simple claim that hate speech hurts. In one sense, this isn’t really a new argument. As I noted in the previous chapter in the section on the “fighting words” doctrine, the opinion that Justice Murphy wrote for the United States Supreme Court in the 1942 Chaplinsky case included as a class of unprotected speech words that “by their very utterance inflict injury.” But as time went by, the Supreme Court came to ignore this element of the Chaplinsky ruling, and even though it was never officially overturned, it eventually became obsolete. A 1991 Supreme Court decision striking down a University of Wisconsin hate speech code as unconstitutional, for example, referred to this part of Chaplinsky as “defunct.” In this sense, endorsing hate speech restrictions now on the grounds that hate speech hurts is a case of something old being new all over again.