ABSTRACT
The legal scholars and activists who have contributed to the vol ume Words that Wound, tend to expand and complicate the legal para meters of “speech” to provide a rationale for the regulation of hate
speech. This is accomplished in part by conceptualizing utterances as both “expressive” of ideas and as forms of “conduct” in themselves: racist speech in particular both proclaims the inferiority o f the race to whom it is addressed, and effects the subordination of that race through the utterance itself.3 To the extent that the utterance enjoys first Amendment “protection” it is viewed, by Matsuda and others, as enjoying the backing o f the state. The failure of the state to intervene is, in her view, tantamount to an endorsement by the state: “the chill ing sight o f avowed racists in threatening regalia marching through our neighborhood w ith full police protection is a statement o f state autho rization.” (49) The utterance thus has the power to effect the subordina tion that it either depicts or promotes precisely through its free opera tion w ithin the public sphere unimpeded by state intervention. Effectively, for Matsuda, the state allows for the injury of its citizens, and, she concludes, the “victim [of hate speech] becomes a stateless person.” (25)
Relying on recently proposed hate speech regulation, Catharine MacKinnon makes a similar argument concerning pornography. In 7 73 Only Words (1993) pornography ought to be construed as a kind of “wound,” according to MacKinnon, because it proclaims and effects the subordinated status of w om en .4 Thus, M acKinnon invokes the constitutional principle of equality (the Fourteenth Amendment, in particular) and argues that pornography is a form of unequal treat ment; she takes this discriminatory action to be more serious and severe than any spurious exercise of “liberty” or “free expression” on the part of the pornographic industry. That exercise of “freedom” she argues, takes place at the expense of other citizens’ rights to equal par ticipation and the equal exercise of fundamental rights and liberties. In Matsuda’s view, there are certain forms of harassing speech that qualify as discriminatory action, and those forms of racially and sexually based hate speech may undermine the social conditions for the exercise of fundamental rights and liberties on the part of those who are addressed through such speech.
