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Copyright (c) 1997 Southern California Law Review
University of Southern California


May, 1997

Southern California Law Review

70 S. Cal. L. Rev. 979


C. Edwin Baker *


Arguments to regulate or prohibit particular speech content commonly go like this: "Speech is not protected absolutely. No one denies that certain exceptions to the guarantee of free speech are proper. Obviously that is because some speech creates serious harms and, whatever value there may be in such harm-causing speech, that benefit is outweighed by the harm." Those who propose a new category of unprotected speech, such as racist speech or pornography, often suggest that prior protection for this category must reflect a failure of those in power to recognize the extent of harm caused by the targeted speech, a failure possibly due to their unconscious racism or sexism or, equivalently, their limited experience.

When such arguments are offered, an effective counter is the largely empirical response that the attempt to regulate this new category will actually produce more harm than good, a response that challenges the argument for regulation on the facts. Nevertheless, this Article outlines a very different response based on two controversial claims. The first is that speech covered by the rationale for free speech should never be regulated because of the harm that it causes. Although dramatic, this view is often implicit in doctrinal approaches that reject judicial balancing. For example, when Justice Brennan found that obscenity was not protected by the First Amendment he did not consider whether it caused harm. Instead, he concluded that only speech that was not a part of the marketplace of ideas could be considered legally obscene. He then held ...
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