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December 11, 2003

"Hate Speech"

Professor Volokh links to an analysis of a recent Rwandan genocide trial in which defendants were convicted for tribal incitement -- hate speech. Considering that the speech in question contributed to the mass genocide in Rwanda, one is tempted let it go. But as the good professor points out, these things set precedents, and international courts are rather unlikely to accept the US interpretation of free speech.

What Volokh does not touch upon, but what worries me after McConnell vs FEC, is the degree to which the US Supreme Court accepts the US interpretation of free speech. If the Court is willing to limit political speech in the interest of higher goals (e.g. "clean elections"), then what assurance, exactly, do we have that this same Supreme Court won't limit speech in the interest of "racial harmony" or "personal dignity" somewhere down the road? Considering the recent tendency of the Court to cite foreign law in its decisions, this is becoming increasingly likely as speech-code regimes become more common overseas.

It is becoming more clear to me every day that while pragmatism is a quality to value in a legislator, or even in a trial judge, it is not a particular virtue on the appellate bench when basic rights are at issue.

Posted by Kevin Murphy at December 11, 2003 10:53 AM | TrackBack