Abstract

This dissertation addresses two concerns. First, is the regulation of a subset of hate-speech, namely 'assaultive expression', justifiable within the framework of current First Amendment jurisprudence? Second, should assaultive expression that targets the oppressed be regulated? ;The first concern addressed, namely whether the regulation of assaultive expression is justifiable, though at base descriptive, is examined by employing philosopher of language J. L. Austin's theory of performative speech acts and feminist philosopher Rae Langton's theory of subordinating and silencing expression in order to explore whether regulating assaultive expression meets the two-pronged legal test of strict scrutiny. In order to meet the test of strict scrutiny, the regulation examined must, first, constitute a compelling state interest and, second, be narrowly tailored to meet the compelling interest. I argue that assaultive expression causes the other-regarding harm of either subordination or silencing. The first harm, subordination, is an infringement to the liberal right of equal status; the second harm, silencing, is an infringement of the liberal right of free expression: such other-regarding harms constitute compelling state interests as the liberal democratic state is obliged to protect the rights its citizens have to both liberty and equality. I further argue that legislation regulating assaultive expression is narrowly tailored just in case that the assaultive expression regulated subordinates or silences. This brings me to the second concern addressed, namely whether the state should regulate assaultive expression. I argue that the state's obligation to protect its citizens against the other-regarding harm of assaultive expression becomes more urgent in the case of targets of assaultive expression that are oppressed by virtue of group membership. While I do not hold that all assaultive expression should be regulated, I argue that there is a strong case to be made for regulating assaultive expression that targets the oppressed by causing or sustaining their oppression since the oppressed are the least likely to have the means to protect themselves from the harm such expression does.