Legal Weapons for the Weak? Democratizing the Force of Words in an Uncivil Society


  • Orville Lee

    1. Orville Lee is assistant professor of sociology in the graduate faculty of political and social science at New School for Social Research. The author wishes to thank Catherine O'Leary for her valuable comments on an earlier draft of this essay. Helpful suggestions were also provided by participants in the Culture and Society Workshop at Northwestern University (in particular, Tom Bauman, Brian Donovan, Wendy Griswold, Kathleen Hull, (Catherine Jackson, Rodney Lacey, Diane Hotinski Lequar, and Daniel McFarland), and audiences at New School University, the University of Vermont, and the University of California at San Diego.
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First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial “hate speech.” I argue that this stalemate can be overcome by considering a more expansive theory of the “force of words” and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech