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A Critique of Postmodern Censorship Theory
Published online by Cambridge University Press: 03 April 2002
—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.