In Must We Defend Nazis?, Richard Delgado and Jean Stefancic set
out to liberate speech from its current straight-jacket.
Over the past hundred years, almost all of American law has matured
from the mechanical jurisprudence approach--which held that cases
could be solved on the basis of legal rules and logic alone--to
that of legal realism--which maintains that legal reasoning must
also take into account social policy, common sense, and experience.
But in the area of free speech, the authors argue, such archaic
formulas as the prohibition against content regulation, the maxim
that the cure for bad speech is more speech, and the speech/act
distinction continue to reign, creating a system which fails to
take account of the harms speech can cause to disempowered,
marginalized people.
Focusing on the issues of hate-speech and pornography, this
volume examines the efforts of reformers to oblige society and law
to take account of such harms. It contends that the values of free
expression and equal dignity stand in reciprocal relation. Speech
in any sort of meaningful sense requires equal dignity, equal
access, and equal respect on the parts of all of the speakers in a
dialogue; free speech, in other words, presupposes equality. The
authors argue for a system of free speech which takes into account
nuance, context-sensitivity, and competing values such as human
dignity and equal protection of the law.
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