Page 8 - Delaware Lawyer - Fall 2019

EDITOR’S NOTE
Rodney A. Smolla
Is hate speech free speech? That question has long vexed American law and culture. The articles in this issue demon- strate how fiercely contested the question is, in the United States and around the world. All of my fellow contributors are distinguished scholars. All are personal friends.
Professor Nadine Strossen is perhaps the most well-known civil libertarian of our times. She was President of the ACLU from 1991 through 2008. From the famous march of Illinois Nazis through the Jewish neighborhoods of Skokie, Illinois in 1977 to the Unite the Right rally of white supremacists in Char- lottesville in 2017, the ACLU has been in the thick of it. Op- ponents of the ACLU relish attacking its members as “knee-jerk liberals.” But as her essay demonstrates, Nadine is no knee-jerk. She is a deeply introspective and reflective public intellectual. Her article, adapted from a speech she gave at the Harvard Law Review spring banquet in 2019, draws on her most recent book, which argues that hatred should be combatted with free speech, not censorship.
Coming from a very different perspective, Professor Alex Tsesis argues against many of the modern First Amendment doctrines that protect hate speech. Alex has long been one of the world’s most eloquent voices against hate speech, and
against legal protection for hate speech. His article explains how and why many other modern democracies, including the United Kingdom and virtually every nation in continental Eu- rope, ban hate speech. Those nations employ what Alex de- scribes as “proportionality analysis,” an approach that has also gained support from American Supreme Court Justice Stephen Breyer. Alex opens his article with a description of a recent fed- eral court decision upholding a $14 million judgment against a white supremacist leader and publication.
Three of my colleagues and friends at the Delaware Law School play prominent roles in this issue. Professor Alan Gar- field, an ebullient teacher, scholar and media voice, has contrib- uted a characteristically vibrant exploration of hate speech regu- lation. Erin Daly, another distinguished colleague, has written an elegant and humane tribute to the great and most beloved and admired Larry Hamermesh.
Rodney A. Smolla
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