As we write this introduction, in early 2011, our home countries, Hungary and the United States, are both preoccupied (convulsed would be too strong a term) with concerns over appropriate limits on public discourse. On January 8, 2011, several people were killed and Congresswoman Gabrielle Giffords severely wounded by a gunman who opened fire on a crowd in Tucson, Arizona. That state has been riven by debates over immigration policy, gun control, abortion, and other divisive issues that have been at least sharp and often hostile and abusive. The shooting produced a great deal of soul-searching and hand-wringing over whether the corrosive terms and rhetoric of the political debate had produced such violence. There were many calls to tone down the rhetoric. At a memorial service, President Obama urged: “[A]t a time when our discourse has become so sharply polarized, at a time when we are far too eager to lay the blame for all that ails the world at the feet of those who happen to think differently than we do, it's important for us to pause for a moment and make sure that we are talking with each other in a way that heals, not in a way that wounds.” Yet it is not at all clear that the rhetoric, abhorrent as it often is, in fact produced this particular act of violence, and the rhetoric itself grows out of deeply held beliefs and is very well received by those who view the world the same way, so fundamental change seems unlikely.

1. Peter Molnar: Would you characterize some speech as “hate speech,” and do you think that it is possible to provide a reliable legal definition of “hate speech”?

2. Keenan Malik: I am not sure that “hate speech” is a particularly useful concept. Much is said and written, of course, that is designed to promote hatred. But it makes little sense to lump it all together in a single category, especially when hatred is such a contested concept.

In a sense, hate speech restriction has become a means not of addressing specific issues about intimidation or incitement, but of enforcing general social regulation. This is why if you look at hate speech laws across the world, there is no consistency about what constitutes hate speech. Britain bans abusive, insulting, and threatening speech. Denmark and Canada ban speech that is insulting and degrading. India and Israel ban speech that hurts religious feelings and incites racial and religious hatred. In Holland, it is a criminal offense deliberately to insult a particular group. Australia prohibits speech that offends, insults, humiliates, or intimidates individuals or groups. Germany bans speech that violates the dignity of, or maliciously degrades or defames, a group. And so on. In each case, the law defines hate speech in a different way.

One response might be to say: Let us define hate speech much more tightly. I think, however, that the problem runs much deeper. Hate speech restriction is a means not of tackling bigotry but of rebranding certain, often obnoxious, ideas or arguments as immoral. It is a way of making certain ideas illegitimate without bothering politically to challenge them. And that is dangerous.

1. Peter Molnar: One of the most common justifications for regulating “hate speech” is to prevent grave harms to marginalized groups. According to this argument such speech stigmatizes and demoralizes members of such groups and prevents them from achieving full equality in society. Do you agree?

2. Nadine Strossen: I totally disagree with the factual premise. And even if I agreed with the premise, I still think that suppressing hate speech would not be an effective solution to the alleged problem.

So, first, I completely dismiss the claim that some people making nasty racist, sexist, or other discriminatory comments necessarily has a severe adverse impact on the individuals who are described. All of us have the ability to reject ideas that are conveyed by various expressions. I speak from experience. I have been the subject of anti-Semitic comments, antifemale comments, anti–civil libertarian comments, personally defamatory comments, and defamatory comments about an organization near and dear to me – and none of it affects my view of myself. It affects my view of the speakers, and of the speakers’ ideas. Quite frankly, to suggest that there is inevitably a direct negative impact on the person who is insulted, I think, is insulting. It suggests that that person doesn’t have enough self-confidence, doesn’t have enough critical capacity. We are not somehow automatically diminished just because some bigot says something negative about us.

1. Peter Molnar: When I first came to the United States, a friend told me that the supposedly strong protection of freedom of speech in this country is simply a myth. Would you agree?

2. Robert Post: I suppose it would depend upon what one means by “myth.” In certain communicative contexts – like the Internet, newspapers, magazines, or movies – constitutional protections for speech are quite robust. But in many other settings there is far less, if any, constitutional protection. So can we conclude that the reputation of a strong First Amendment is merely a myth?

3. PM: More narrowly, then: It is often stated that in the United States “hate speech” is constitutionally immune from regulation. Is this correct?

4. RP: In many settings speech that is demeaning or degrading to particular minorities or genders or sexual orientations is regulated in the U.S. with few, if any, constitutional impediments. In private settings, for example, where there is no state action, constitutional restrictions do not apply. In such private settings hate speech can be regulated without constitutional constraint. There are also many public settings in which hate speech can be and is suppressed regularly and effectively. These tend to be settings in which the regulation of hate speech does not compromise public discourse.

5. PM: For example?

6. RP: In courtrooms, for example. Attorneys and judges will be penalized for hateful expression. So will teachers and students in public elementary and high schools, and even, in some contexts, in public universities. Prisoners, guards, and administrators will be regulated for hate speech in prisons, as will government employees in bureaucracies. There are lots and lots of settings in which in the United States government regulates or prohibits hate speech and First Amendment issues are not thought to arise.

1. Peter Molnar: You have had extensive experience litigating civil rights cases. Let’s begin with some questions about the ways, if any, in which free-speech protections that cover even “hate speech” might have affected your litigating efforts. Do you think the way “hate speech” is “free” in the United States made it harder for you to litigate discrimination and segregation in any way?

2. Theodore Shaw: In fact, nothing comes to mind. Thinking over the many school desegregation cases I’ve litigated, the Voting Rights litigation, a capital punishment case I did in Louisiana many years ago, the housing discrimination cases that I’ve done – I’d have to struggle to think of an example of how constitutionally protected hate speech really interfered with my ability to litigate cases. My answer would have to be right now, “No.”

That does not mean that I have not been exposed to hate speech in my work. For example, I’ve done many school desegregation cases, and I took it for granted that some of the opponents to school desegregation would say hateful things. And they did. I remember being at the Justice Department early in my career, and we would have to respond to citizen mail. Some of the mail that came in criticizing the school desegregation cases we filed was very racist and hateful. But I can't say that that really got in the way of the actual litigation of the cases.