Volume 33, 1998
Philosophy of Law
The Moral Core of U.S. Constitutional Bans on Hate Speech Codes
The striking down of the Stanford University Hate Speech Code on February 27, 1995 demonstrated the strong animus in U.S. First Amendment decisions against such codes. Judge Peter Stone, applying the U.S. Supreme Court decision in R.A.V. ruled, first, that the Stanford Code was too broad, and second, that the state cannot censor content by picking out some "fighting words" to prohibit. I argue that the moral basis for banning overbroad codes combines a nonconsequential emphasis on the value of liberty with a consequentialist analysis of what happens when liberty that should be protected is entangled in codes reflecting liberty that should not be protected. In contrast, the moral basis for content neutrality does not depend on consequentialist thinking, but shows that the very search for a moral basis for banning the purest acts of hateful speech logically makes the speech protected by elevating it to a viewpoint.