Hate speech employs discriminatory epithets to insult and stigmatize others on the basis of their race, gender, sexual orientation, or other forms of group membership. The regulation of hate speech is deservedly controversial, in part because debates over hate speech seem to have teased apart libertarian and egalitarian strands within the liberal tradition. In the civil rights movements of the 1960s, libertarian concerns with freedom of movement and association and equal opportunity pointed in the same direction as egalitarian concerns with eradicating racial discrimination and the social and economic inequalities that this discrimination maintained. But debates over hate speech regulation seem to force one to give priority to equality or to liberty. On the one hand, egalitarian concerns may seem to require restricting freedom of expression. Hate speech is an expression of discriminatory attitudes that have a long, ugly, and sometimes violent history. As such, hate speech is deeply offensive to its victims and socially divisive. Though one might well be reluctant to restrict speech, it might seem that the correct response to hate speech, as with other forms of discrimination, is regulation. On the other hand, libertarian concerns may seem to constrain the pursuit of equality. Though one may abhor hate speech and its effects, the cure might seem at least as bad as the disease. Freedoms of expression are among our most fundamental liberties. Offensive ideas are part of the price one must pay to protect these constitutional rights.

While legal scholars increasingly recognize that norms as well as law influence social behavior, the nature of these effects is not well understood. A key question concerns the content of norms. Specifically, do they reflect individual interest or do they enhance group welfare? In this paper I describe two general kinds of arguments that support these different views. I then develop predictions about the content of a particular type of norm—controller selection rules. These hypotheses are tested in an experimental setting in which individuals interact with each other over networked computers. The findings are consistent with group welfare explanations. That is, they suggest that norms constrain actions that create negative externalities, and that these norms are stronger in more cohesive groups. They also suggest, however, that such norms may not necessarily produce pro-social behavior.

The fundamental tenet of the liberal conception of free speech is the principle of content neutrality, which Mill espoused in claiming that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”1. J.S. MILL, ON LIBERTY 36, n. 1 (John Gray and G.W. Smith eds., Routledge 1991) (1859). Note that content-neutrality as a principle of free speech is a different and less ambitious principle from neutrality among conceptions of the good. On this view, the immorality, the falsity, and even the harmfulness of an opinion are not good reasons to censor it. “However positive any one’s persuasion may be, not only of the falsity but of the pernicious consequences” of an opinion, Mill writes, its expression cannot legitimately be prohibited.2. Id. at 43. I am claiming that Mill does not consider harm prevention per se to be even a good (much less a sufficient) reason to censor an opinion or sentiment. This claim is admittedly in tension with some glosses of the so-called harm principle; but, as I have argued elsewhere, the role and content of Mill’s principle of liberty is often fundamentally misconstrued. See Daniel Jacobson, Mill on Liberty, Speech, and the Free Society, 29 PHIL. & PUB. AFF. 276 (2000). Nevertheless, in certain limited circumstances, particular acts of assertion or expression must “lose their immunity” from interference, as Mill puts it, so that we may proscribe incitement to riot, harassment, and the like. Just how to specify those circumstances consistently with content neutrality is a challenge for the liberal program. Of course, this principle and the liberal conception of free speech it embodies are controversial. It can be questioned whether the principle succeeds in protecting the class of speech and other expression that liberals aspire to protect. And even if it does cover the right class, the principle’s justification can be doubted. But I will not discuss these issues, on which there is already an immense literature, any further here.

—S. Johnson and S. FishSTANLEY FISH, THERE’S NO SUCH THINGAS FREE SPEECH—AND It’SA GOOD THING, TOO 102 (1994).

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.

—F. FrankfurterUnited States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

There is a new reason for censorship. It has to do with the “mind-body problem” and, although philosophers are still working on this problem, preliminary results indicate that some of our most cherished First Amendment principles are at best “surprisingly naïve” and at worst “a metaphysical mistake.” Susan J. Brison, Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence, 4 LEGAL THEORY 39, 40, 61 (1998). Briefly put, the mind and the body are intimately, if somewhat mysteriously, connected. Hate speech, which causes mental distress, also causes physical distress. Hate speech thus deserves no special place in our pantheon of expressive liberties and should receive no greater constitutional protection than ordinary physical crimes such as assault.