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Racism and hate speech – A critique of Scanlon’s Contractual Theory

Cohen-Almagor, Raphael



The First Amendment is an important value in American liberal polity. Under this value, racism, hate speech and offensive speech are protected speech. This article scrutinizes one of the clear representatives of the American liberal polity - Thomas Scanlon. The paper tracks the developments in his theory over the years. It is argued that Scanlon’s arguments downplay tangible harm that speech might inflict on its target victim audience. Scanlon’s distinction between participant interests, audience interests, and the interests of bystanders is put under close scrutiny. The article criticizes viewpoint neutrality and suggests a balancing approach, further arguing that democracy is required to develop protective mechanisms against harm-facilitating speech as well as profound offences. Both should be taken most seriously.


Cohen-Almagor, R. (2019). Racism and hate speech – A critique of Scanlon’s Contractual Theory. First Amendment Studies, 1-26.

Journal Article Type Article
Acceptance Date Mar 20, 2019
Online Publication Date May 21, 2019
Publication Date May 21, 2019
Deposit Date May 30, 2019
Publicly Available Date Nov 22, 2020
Journal First Amendment Studies
Print ISSN 2168-9725
Electronic ISSN 2168-9733
Publisher Taylor & Francis (Routledge)
Peer Reviewed Peer Reviewed
Pages 1-26
Keywords Sociology and Political Science; Communication; Law
Public URL
Publisher URL
Additional Information Peer Review Statement: The publishing and review policy for this title is described in its Aims & Scope.; Aim & Scope:; Received: 2018-10-27; Accepted: 2019-03-20; Published: 2019-05-21


Article (626 Kb)

Copyright Statement
This is an Accepted Manuscript of an article published by Taylor & Francis Group in Africa Review on 21/03/2019, available online:

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