2001 02 01 book reviews

The first part of the book presents a very educational and critical analysis of the basics of the American free speech doctrine. He makes clear that the distinction between content-based regulations and contentneutral restrictions of the freedom of expression is more problematic than commonly recognised. At the same time, Weinstein also refers to the relative impact of this classification. He clearly demonstrates that there is no blanket rule against content discrimination, despite some rhetoric in the Supreme Court case law. Weinstein develops and discusses the thesis that in denying an exception for hate speech and pornography but allowing numerous other content-based exceptions from First Amendment protection, modern free speech doctrine discriminates against the interests of minorities and women.

In the very interesting second part of the book the author demonstrates that the relationship between free speech and equality is far more complex and ambivalent than either the radical critics or many liberal defenders of the free speech doctrine acknowledge. Weinstein investigates very critically the radical critique that free speech doctrine is in the service of the rich and the powerful and selectively discriminates the interests of women and minorities.

In the third part of the book, he goes beyond what the law and the jurisprudence is, to what it should be.

He develops his normative approach in a very well structured way, trying to find an answer to the question why, ultimately, it should be possible to regulate hate speech and pornography. After a broad assessment of the costs and benefits, Weinstein comes to the conclusion that it is unlikely that broad hate speech and pornography bans, or the modification of free speech doctrine that these bans would entail, would have disastrous consequences for free speech. But at the same time he recognises and emphasises that the most important benefits that banning hate speech and pornography might produce are extremely speculative. Because proof of the relationship between these forms of speech and violence and illegal discrimination against women or minorities is sparse, it is very unclear whether a ban would alleviate these harms.

Weinstein’s interesting final conclusion is that ‘on the present state of the evidence’, it is better to combat the harms that free speech and pornography might cause through means other than speech repression.

But at the same time he is aware that this is not a definitive answer. He argues that "if future studies demonstrate with more certainty that certain types of pornography are a significant cause of sexual violence or discrimination, then modifying the doctrine to allow for the suppression of this speech might be justified". And similarly, if hate speech were to proliferate, and it could be demonstrated that this expression was contributing to increased violence or discrimination against minorities, Weinstein is prepared to re-evaluate his general conclusion. His main purpose is to provide the background for people to reach their own conclusions about this perennial problem of social policy.

Weinstein’s book is a balanced and stimulating examination of the difficult question concerning the need and the danger of hate speech and pornography in a (post)modern democracy. It is a welcome analysis of moderation amidst the often shrill, extremist claims by each side.