ON FREE, HARMFUL, AND HATEFUL SPEECH

Judicially recognized and relatively unobjectionable and uncontroversial exceptions to the coverage and protection of the First Amendment to the United States Constitution are grounded, in part, on affirmative answers to the question whether certain speech creates or could create actual or potential harms to, and result in negative consequences for, individuals and societal interests. This article, focusing on speech-related harm and, more specifically, the speech-related harms of hate speech, makes a descriptive claim and poses a normative question. The descriptive claim: Assessment of harm has long been a feature of the United States Supreme Court's free speech jurisprudence and decisions in which the Court has determined that some speech is constitutionally prohibited and other speech has been unconstitutionally abridged. The normative question: Should the Court adopt and employ an explicit harm-assessment analysis in hate speech cases?

Discussing this query and concluding that such an approach should be an element of First Amendment analysis in this area of the law, the article suggests the need for judicial and scholarly consideration of and engagement with this important issue.