The names are all too familiar -- "nigger," "kike," "wop," "mick," "spic" -- words that carry the baggage of centuries of racism and empty it out in hate. These words are often aimed at people like bullets. They foretell danger and evoke the shame of the past: slavery, riots, massacres, the Holocaust.

If these words are so hateful and hurtful, why not outlaw them? Why not punish anyone who uses them in public to deliberately insult another person? Other forms of harm are punished; why not punish this one? The function of criminal law, after all, is to define the standards of civilized society and prescribe penalties for behavior that violates those standards.

These questions introduce the subject of this book: hate speech. The issue before us is whether offensive words, about or directed toward historically victimized groups, should be subject to criminal penalties. Should it be illegal to call people names based on their race or religion? Should it be illegal to publish defamatory materials -- such as the notorious Protocols of the Elders of Zion -- that incite prejudice against a racial or religious group?

Almost every country prohibits hate speech directed at racial, religious, or ethnic groups. 1 The United States, by contrast, has developed a strong tradition of free speech that protects even the most offensive forms of expression. The First Amendment is one of the glories of American society. It is celebrated as the protector of the most precious liberty of all: the right to express oneself and to participate in the democratic process. Free speech is the cornerstone of democracy; its essential element is the people's right to criticize the government, even during wartime or other national emergencies. Freedom of speech means that any and all ideas may be heard. The people and not the government shall decide what is true and what is false. In the words of Justice Robert Jackson, free speech means that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." 2 As Justice William Brennan put it, the "central meaning" of the First Amendment is that "debate on public issues should be uninhibited, robust, and wide-open." 3

This book is a history of the hate speech issue in the United States. It examines the course of events that has led to this country's unique status on a particularly difficult question. Justices Jackson's and Brennan's opinions were important landmarks in that history, but there was nothing inevitable about the outcome. My central argument is that the strong tradition of free speech resulted from a series of choices. These choices have been not only Supreme Court decisions but also choices by advocacy groups that brought the major cases before the Court and choices by American society to affirm a very broad protection of free speech. The central question is why those choices were made.

The choices that have led to current American policy involved rejecting other alternatives, often appealing ones. Uninhibited free speech is not easy: this precious freedom comes at a price, for the First Amendment also protects offensive words. It protects both the words people consider important and those they find offensive. The First Amendment guarantees freedom for both the ideas that people cherish and the thoughts they hate. 4 It means that many deeply offensive and hurtful things can be said without fear of criminal punishment. The drama of the First Amendment is played out every week in front of abortion clinics. Antiabortion protesters scream "murderer" and "baby killer" at pregnant women entering the clinics for a legal medical procedure. The accusations are false (since the procedure is legal), defamatory, and hurtful. Yet these words are protected by the First Amendment as the expression of a political idea: that abortion is a terrible wrong and must be stopped. By the same token, racist remarks such as "nigger" and "kike" are also protected by the First Amendment. . .

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