Policing Hate Speech and Extremism: A Taxonomy of Arguments in Opposition

Abstract

Hate speech and extremist association do real and substantial harm to individuals, groups, and our society as a whole. Our common sense, experience, and empathy for the targets of extremism tell us that our laws should do more to address this issue. Current reform efforts have therefore sought to revise our laws to do a better job at policing, prohibiting, and punishing hate speech and extremist association. Efforts to do so, however, encounter numerous and substantial challenges. We can divide them into three general categories: definitional problems, operational problems, and conscientious problems. An informed understanding of these three categories of arguments is indispensable to any effort that seeks to reform the law in ways that will survive constitutional scrutiny. This Article provides a detailed legal and normative analysis of those arguments and common objections raised to them. It contends that the arguments raised in opposition to more expansive regulation of hate speech and extremist association largely get things right. And it concludes that more expansive regulation could have dire and unintended consequences that would disserve the interests of all, including the groups who advocate for such regulation.