《Brettschneider Paper on Free Speech》.doc

Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines The doctrine of viewpoint neutrality is central to First Amendment jurisprudence. It requires the state to not treat speech differently based on a speaker’s political or philosophical opinions. The doctrine has recently come under attack, however, for protecting hate speech and other views inimical to liberal democracy. Critics point out that most democracies outside of the United States have rejected the doctrine of viewpoint neutrality, while still endorsing a right to free speech. These democracies admit the importance of respecting diverse political and philosophical opinions, but they do not give wholesale protection to viewpoints that attack the freedom and equality of citizens. For example, Germany bans fascist speech, Holocaust denial, and the advocacy of racism under its principle of “militant democracy.” Similarly, France prohibits speech that disparages racial, ethnic, or religious groups. Canada, in the R. v. Keegstra case, prosecuted a teacher for imparting racist views during a classroom lesson. In contrast, under the American doctrine of viewpoint neutrality, such government opposition to “hate speech” would not pass Constitutional muster. Following the example of other democracies, several legal scholars in the U.S. have urged the Court to reconsider viewpoint neutrality. Jeremy Waldron’s recent book, The Harm in Hate Speech, rejects the doctrine for allowing minority groups to be exposed to discrimination and humiliation, undermining their equal inclusion in society. Other thinkers, like Catharine MacKinnon and Charles Lawrence, believe that viewpoint neutrality is inconsistent with the Constitution’s commitment to the equal protection of the law. In stark contrast to these critics, Martin Redish has offered a clear and robust defense of the doctrine of viewpoint neutrality. As he