The “Who?” Question in the Hate Speech Debate: Part 2: Functional and Democratic Approaches

This two-part article addresses the “Who?” question in the hate speech debate: namely, which characteristics, social identities or statuses should or should not be treated as protected characteristics within a body hate speech laws? Using United Kingdom incitement to hatred laws as a focal point, the article outlines and critically appraises five broad approaches to specification. Part 1 deals with consistency specification, which highlights norms of consistency both within incitement to hatred law itself and in relation to other laws, practical specification, which focuses on the ostensible goals or apparent aims of incitement to hatred laws, and formal specification, which looks at the formal qualities of the characteristics themselves and to the different forms of people’s relationships with those characteristics. And Part 2 considers functional specification, which concentrates on the underlying or real functions, purposes or objectives of incitement to hatred laws, and democratic specification, which appeals to democratic procedures as well as to democratic values, norms and principles that speak to the proper scope of incitement to hatred laws. Along the way I shall also critically assess a range of substantive arguments about which particular characteristics should or should not be covered by incitement to hatred laws given the aforementioned approaches. My main conclusion shall be that each of the approaches has its strengths and weakness and that, partly because of this, no single approach is adequate by itself as a tool for specifying the proper scope of incitement to hatred laws, but also, by the same token, no approach should be ruled out entirely. Instead, the best strategy is one that combines together all five approaches in reasonable ways given the law, the characteristic and the context

The Right Kind of Anarchy

At Brown University\u27s Graduate School Convocation, Professor Kalven remembers what he calls the one good convocation speech of the twentieth century, that of Robert Maynard Hutchins in 1935, when Mr. Hutchinson was president of the University of Chicago. Professor Kalven then touches on student unrest, acknowledging the student right to protest but advocating for the university not as a place of social conscience but as a place for academic learning. The university should be perceived as a friend to the protestors, rather than as the rather bewildered enemy, protested against for the sake only of protest

Paul & Schwartz: Federal Censorship: Obscenity in the Mail

A Review of Federal Censorship: Obscenity in the Mail. By James C. N. Paul and Murray L. Schwartz

Comments on Maki v. Frelk

My first reaction to the performance of the Illinois Appellate Court in Maki v. Frelk was to recall the old joke about the man who, when asked if he believed in baptism, replied: Believe in it, hell, I\u27ve seen it done! In any event the decision provides a twin stimulus to the commentator: first, to say something about the limits of common law change, and second, to say something about comparative negligence itself. Despite the spectacular novelty of the court\u27s action, these re-main well-worn topics on which it will not be easy to say anything fresh. I am, however, moved by the occasion and the congenial format of the short comment to talk informally on three or four points. I should perhaps add as a final prefatory observation that, although on various counts I have been uneasy about the daring of the Illinois Appellate Court, I must admit to some feeling of let-down, of some loss of excitement and potentiality now that the decision of the Illinois Supreme Court has brought a return to sanity. At the very least it must be agreed that the Illinois Appellate Court really made news