The justification from democracy is premised on the conviction that freedom of speech serves an indispensable function in the process of democratic self-government 32 . Without the freedom to convey and receive ideas, citizens cannot successfully carry out the task of democratic self-government. Accordingly, political speech needs to be protected, but not necessary all political speech 33 . If the paramount objective is the preservation and promotion of democracy, then anti-democratic speech in general, and hate and political extremist speech in particular, would in all likelihood serve no useful purpose, and would therefore not warrant protection 34

The justification from social contract theory is in many ways similar to that from democracy, but the two do not necessarily call for protection of the same speech. Unlike the other three justifications, that from social contract theory is at bottom procedural in nature. Under this justification, fundamental political institutions must be justifiable in terms of an actual or hypothetical agreement among all members of the relevant society 35 , and significant changes in those institutions must be made only through such agreements. Just as in the case of justification from democracy, in that from social contract there is a need for free exchange and discussion of ideas. Unlike the justification from democracy, however, that from the social contract cannot exclude ex ante any views which, though incompatible with democracy, might be relevant to a social contractor\ufffds decision to embrace the polity\ufffds fundamental institutions or to agree to any particular form of political organization. Accordingly, the justification from social contract seems to require some tolerance of hate speech, if not in form then at least in substance.

The justification from the pursuit of the truth originates in the utilitarian philosophy of John Stuart Mill. According to Mill, the discovery of truth is an incremental empirical process that relies on trial and error and that requires uninhibited discussion 36 . Mill\ufffds justification for very broad freedom of expression was imported into American constitutional jurisprudence by Justice Oliver Wendell Holmes and became known as the justification based on the free marketplace of ideas 37 . This justification, which has become dominant in the United States ever since 38 , is premised on the firm belief that truth is more likely to prevail through open discussion (even if such discussion temporarily unwittingly promotes falsehoods) than through any other means bent on eradicating falsehoods outright.

Mill\ufffds strong endorsement of free speech was rooted in his optimistic belief in social progress. According to his view, truth would always ultimately best falsehood so long as discussion remained possible, and hence even potentially harmful speech should be tolerated as its potential evils could best be minimized through open debate. Accordingly, Mill advocated protection of all speech so long as it falls short of incitement to violence.

Although Holmes\ufffds justification of free expression is very similar to Mill\ufffds, his reasons for embracing the free marketplace of ideas are in sharp contrast to those of Mill. Unlike Mill, Holmes was driven by skepticism and pessimism and expressed grave doubts about the possibility of truth. Because of this, Holmes justified his free marketplace approach on pragmatic grounds. Since most strongly held views eventually prove false, any limitation on speech is most likely grounded on false ideas. Accordingly, Holmes was convinced that a free market place of ideas was likely to reduce harm in two distinct ways: it would lower the possibility that expression would be needlessly suppressed based on falsehoods; and it would encourage most people who tend stubbornly to hold on to harmful or worthless ideas to develop a healthy measure of self-doubt 39 .

Like Mill, Holmes did not endorse unlimited freedom of speech. For Holmes speech should be protected unless it poses a \ufffdclear and present danger\ufffd to people, such as falsely shouting \ufffdfire\ufffd in a crowded theater and thereby causing panic 40 . Both Mill\ufffds and Holmes\ufffds justification from the pursuit of truth justify protection of hate speech that does not amount to incitement to violence. Indeed speech amounting to an \ufffdincitement to violence\ufffd is but one instance of speech that poses a \ufffdclear and present danger\ufffd. In the end, whether speech incites to violence or creates another type of clear and present danger, it does not deserve protection -- under the justification from the pursuit of truth -- because it is much more likely to lead to harmful action than to more speech, and hence it undermines the functioning of the marketplace of ideas.

In the end, Mill and Holmes represent two sides of the same coin. Mill overestimates the potential of rational discussion while Holmes\ufffds underestimates the potential for serious harm of certain types of speech that fall short under the clear and present danger test. The justification from the pursuit of truth is at bottom pragmatic. As we shall see below, however, because both the Millian and Holmesian pragmatic reasons for the toleration of hate speech are based on dubious factual claims, they may in the end as much undermine as they may bolster any pragmatic justification of tolerance of hate speech that falls short of incitement to violence 41 .

Unlike the three preceding justifications which are collective in nature, the fourth justification for free speech, that from autonomy, is primarily individual-regarding. Indeed, democracy, social peace and harmony through the social contract, and pursuit of the truth, are collective goods designed to benefit society as a whole. In contrast, individual autonomy and well being through self-expression are presumably always of benefit to the individual concerned without in many cases necessarily producing any further societal good.

The justification from autonomy is based on the conviction that individual autonomy and respect require protection of unconstrained self-expression 42 . Accordingly, all kinds of utterances arguably linked to an individual\ufffds felt need for self-expression ought to be afforded constitutional protection. And consistent with this, the justification from autonomy clearly affords the broadest scope of protection for all types of speech.

As originally conceived, the justification from autonomy seemed exclusively concerned with the self-expression needs of speakers. Since hate speech could plausibly contribute to the fulfillment of the self-expression needs of its proponents, it would definitely seem to qualify for protection under the justification from autonomy.

Under a less individualistic -- or at least less atomistic -- conception of autonomy and self-respect, however, focusing exclusively on the standpoint of the speaker would seem insufficient. Indeed, if autonomy and self-respect are considered from the standpoint of listeners, then hate speech may well loom as prone to undermining the autonomy and self-respect of those whom it targets. This last observation becomes that much more urgent under a stage four conception of the nature and scope of legitimate regulation of speech. Indeed, if the main threat of unconstrained speech is the hegemony of dominant discourses at the expense of the discourses of oppressed minorities, then self-expression of the powerful threatens the autonomy of those whose voices are being drowned, and hate speech against the latter can only exacerbate their humiliation and the denial of their autonomy.

As these last observations indicate, the possible intersections between the four historical stages and the four philosophical justifications are multiple and complex. Current American constitutional jurisprudence concerning hate speech, however, relies by and large on the justification from the pursuit of truth and tends to espouse implicitly a stage three -- or a combination of stage two and stage three --- vision on the proper role of speech.

Turning briefly to some of the most salient cases, it must first be reiterated that current judicial treatment of hate speech in the United States is of relatively recent vintage. Indeed, less than fifty years ago, in Beauharnais v. Illinois 43 , the Supreme Court upheld a conviction for hate speech emphasizing that such speech amounted to group defamation, and reasoning that such defamation was in all relevant respects analogous to individual defamation, which had traditionally been excluded from free speech protection. Beauharnais, a white supremacist, had distributed a leaflet accusing blacks, among other things, of rape, robbery and other violent crimes. Although Beauharnais had urged whites to unite and protect themselves against the evils he attributed to blacks, he had not been found to have posed a \ufffdclear and present danger\ufffd of violence.

Beauharnais has never been explicitly repudiated, but it has been thoroughly undermined by subsequent decisions. Already, the dissenting opinions in Beauharnais attacked the Court\ufffds majority rationale, by stressing that both the libel and the \ufffdfighting words\ufffd44 exceptions to free speech involved utterances addressed to individuals, and were hence unlikely to have any significant impact on public debate. In contrast, group libel was a public, not private, matter, and its prohibition would inhibit public debate.

The current constitutional standard, which draws the line at incitement to violence, was established in the 1969 Brandenburg v. Ohio 45 decision. Brandenburg involved a leader and several members of the Ku Klux Klan who in a rally staged for television (in front of only a few reporters) made several derogatory remarks mainly against blacks, but also some against Jews. In addition, while not threatening any imminent or direct violence, the speakers suggested that blacks should return to Africa and Jews to Israel, and announced that they would petition the government to act, but that if it refused they would have no other recourse than to take matters in their own hands. Selected portions of this rally were later broadcast on local and national television.

The Supreme Court in a unanimous decision set aside Brandenburg\ufffds criminal conviction concluding that the Klan may have advocated violence, but that it had not incited it. Significantly, in drawing the line between incitement and advocacy, the Court applied to hate speech a standard it had recently established to deal with communist speech involving advocacy of forcible overthrow of the government 46 . In so doing, the Court\ufffds decision raises the question of whether hate speech ought to be equated with (politically) extremist speech. While the intricacies of this issue remain beyond the scope of this article, two brief observations seem in order. First, extremist speech based on a political ideology like communism is above all political speech and it does not necessarily involve personal hatred. Second, even if extremist speech
involved such hatred -- e.g., if communists seek to fuel passions against those whom they call \ufffdcapitalist pigs\ufffd -- such hatred cannot be simply equated with virulent anti-Semitism or racism.

If one case has come to symbolize the contemporary political and constitutional response to hate speech in the United States, it is the Skokie case in the late 1970's. This case arose out of a proposed march by Neo-Nazis in full SS uniform with swastikas through Skokie, a suburb of Chicago with a large Jewish population, including thousands of Holocaust survivors. The local municipal authorities took measures -- including enacting new legislation -- designed to prevent the march, but both state and federal courts eventually invalidated the measures in question as violative of the Neo-Nazis\ufffds free speech rights 47 .

The Neo-Nazis made it clear that their choice of Skokie for the march was intended to upset Jews, by confronting them with their message. The constitutional battle focused on whether the proposed march in Skokie would amount to an \ufffdincitement to violence\ufffd. Based on the testimony of Holocaust survivors residing in Skokie, who asserted that exposure to the swastika might provoke them to violence, a lower state court determined that such a march could be prohibited 48 .

That decision was reversed on appeal, on the ground that the lower court had wrongly concluded that the proposed march had met the \ufffdincitement to violence\ufffd requirement 49 . While acknowledging the intensity of the likely feelings of Holocaust survivors, the court held that they were not sufficient to prohibit the proposed march 50 . The court did not specify what standard would have to be met to justify banning display of the swastika. What, if a Jew who is not a Holocaust survivor had testified that a Neo-Nazi march with a Swastika would move him to violence? Or else, what if a gentile had thus testified?

These uncertainties illustrate some of the difficulties associated with the \ufffdincitement to violence\ufffd standard, even if one assumes that it is the right standard. Be that as it may, the Skokie controversy ultimately fizzled, for after their legal victories, the Neo-Nazis decided not to march in Skokie. Instead, they marched in Chicago 51 far from any Jewish neighborhood. Because of their very marginality, and because they had no sway over the larger non-target audience in the United States, the actual march by the Neo-Nazis did much more to showcase their isolation and impotence than to advance their cause.

Under those circumstances, allowing them to express their hate message probably contributed more to discrediting them than would have been the case had the prohibition against their march been upheld by the courts.

[...]

Conclusion

Hate speech raises difficult questions that test the limits of free speech. Although none of the constitutional regimes examined in these pages leaves hate speech unregulated, there are vast differences between the minimal regulation practiced in the United States and the much more extensive regulation typical of other countries and of international covenants. Both approaches are imperfect, but in a world that has witnessed the Holocaust, various other genocides and ethnic cleansing, all of which surrounded by abundant hate speech, the American way seems definitely less appealing than its alternatives. As hate speech can now almost instantaneously spread throughout the world, and as nations become increasingly socially, ethnically, religiously and culturally diverse, the need for regulation becomes ever more urgent. In view of these important changes the state can no longer justify commitment to neutrality, but must embrace pluralism, guarantee autonomy and dignity, and strive for maintenance of a minimum of mutual respect.

Commitment to these values requires states to conduct an active struggle against hate speech, while at the same time paving the way to avoiding most of the pitfalls likely to be encountered in the course of that struggle. It would of course be preferable if hate could be defeated by reason. But since unfortunately that has failed all too often, there seems no alternative but to combat hate speech through regulation in order to secure a minimum of civility.