Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment

In Must We Defend Nazis?, Richard Delgado and Jean Stefancic set out to liberate speech from its current straight-jacket.
Over the past hundred years, almost all of American law has matured from the mechanical jurisprudence approach–which held that cases could be solved on the basis of legal rules and logic alone–to that of legal realism–which maintains that legal reasoning must also take into account social policy, common sense, and experience. But in the area of free speech, the authors argue, such archaic formulas as the prohibition against content regulation, the maxim that the cure for bad speech is more speech, and the speech/act distinction continue to reign, creating a system which fails to take account of the harms speech can cause to disempowered, marginalized people.

Focusing on the issues of hate-speech and pornography, this volume examines the efforts of reformers to oblige society and law to take account of such harms. It contends that the values of free expression and equal dignity stand in reciprocal relation. Speech in any sort of meaningful sense requires equal dignity, equal access, and equal respect on the parts of all of the speakers in a dialogue; free speech, in other words, presupposes equality. The authors argue for a system of free speech which takes into account nuance, context-sensitivity, and competing values such as human dignity and equal protection of the law.