It’s becoming increasingly difficult for an academic to stake out a place for himself in the universe of worthless scholarship. Danielle Citron owns Cyber Civil Rights. Mary Anne Franks nailed down revenge porn. Even the empathetic killer space was nabbed by Robert Blecker.
Poor Thane Rosenbaum of Fordham Law School was nicheless. Sure, he tried his hand at being the hero of revenge, but nobody noticed. There were lots of articles about the enemies of Judaism, but there is no juice left in condemning Eichmann, even with Osama bin Laden thrown in for timeliness. He would never become a brand this way.
But maybe, just maybe, by combining his interests he could develop a new niche, a heretofore unrecognized space that he could fill? Enter the Daily Beast:
New studies show that unbridled hateful speech can cause emotional harm. Is it time for the United States to follow other democracies and impose limits on what Neo-Nazis and other haters say?
Guess what Thane has to say about it? After all, other countries outlaw language and gestures relating to the Nazis. Who wants to be second banana to France?
To Americans, these actions in France and Israel seem positively undemocratic. The First Amendment would never prohibit the quenelle, regardless of its symbolic meaning. And any lover of “Seinfeld” would regard banning the “Soup Nazi” episode as scandalously un-American. After all, in 1977 a federal court upheld the right of neo-Nazis to goose-step right through the town of Skokie, Illinois, which had a disproportionately large number of Holocaust survivors as residents. And more recently, the Supreme Court upheld the right of a church group opposed to gays serving in the military to picket the funeral of a dead marine with signs that read, “God Hates Fags.”
Had Thane ended here, we would all shake our heads in confused agreement. Well, yeah, this is how we roll in America. Thanks for reminding us. Pass the fries. But no, this isn’t where Thane ended. It’s just his beginning, the base of the strawman he’s about to build.
Yet, even in the United States, free speech is not unlimited. Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety. There is no freedom to shout “fire” in a crowded theater.
Note: Whenever anyone raises the “fire in a crowded theater” example, they’re playing their reader for a fool. It’s Holmes’ metaphor in Schenk v. United States to show how a clear and present danger isn’t protected speech under peculiar circumstances. Yet he was also clear in his famous dissents that expressions of honest opinion were entitled to near-absolute protection. The point is that fallback on the “fire in a crowded theater” line is almost invariably used to obfuscate an argument rather than enlighten. Be wary.
So the First Amendment isn’t absolute. No news there, Thane. What else you got?
Yet, the confusion is that in placing limits on speech we privilege physical over emotional harm. Indeed, we have an entire legal system, and an attitude toward speech, that takes its cue from a nursery rhyme: “Stick and stones can break my bones but names can never hurt me.”
All of us know, however, and despite what we tell our children, names do, indeed, hurt.
Takes its cue from a nursery rhyme? Got a cite for that proposition, bud? Didn’t think so. While the sticks and stones rhyme may well embody the concept, trying to pass off doctrine as an outgrowth of it isn’t going to play. We “privilege” physical over emotional harm because one is real and undeniable as there are actual, objectively provable, manifestations of harm, while the other is a product of individual sensitivity and only shown by subjective claims.
We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious?
Glad you asked. The current cultural elevation of hurt feelings to physical harm status, and even higher by your argument, presents a disastrous crossroads. I’m Jewish, and was raised in the post-World War II culture of “never again.” I share the sensitivity toward facile Nazi comparisons and won’t let it happen here. It’s not that I stifle the idea, but the language. Anyone seeking to make the point has to work harder than just invoking Godwin’s Law.
But this is a crossroads, Thane. We can strengthen both our spirit and resolve, as well as honoring the American ideal of free speech, by bolstering people’s strength to ignore and overcome hurt feelings rather than enable them to wallow in their misery. We teach children — hence the nursery rhyme — not to let mean words hurt their feelings. This makes them stronger. You make them weaker.
From a doctrinal perspective, however, your argument is utterly insane. There can be no law crafted that gives notice to a speaker as to what words will hurt someone’s feelings sufficiently to land them in jail. Speech to one listener is no big deal, but to another, a delicate flower, is a crime?
Of course, everything is a matter of degree. Juries are faced with similar ambiguities when it comes to physical injury. No one knows for certain whether the plaintiff wearing a neck brace can’t actually run the New York Marathon. We tolerate the fake slip and fall, but we feel absolutely helpless in evaluating whether words and gestures intended to harm actually do cause harm. Jurors are as capable of working through these uncertainties in the area of emotional harms as they are in the realm of physical injury.
So while conceding that there is no way to distinguish lawful speech from unlawful, your solution is to substitute the sensibilities of a jury as to what is sufficiently “hurtful” to make words a crime? What could possibly go wrong, as prosecutors try to load the jury with those most inclined to wallow in their feelings while the defense seeks to stack it with emotional atheists. That clears up the whole notice concept.
Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.
If it’s about common decency, then it is, by definition, common, and we can all hope to make it through life without being overwhelmed by mean words and bad feelings to the point where we are so horribly butthurt as to quiver in the corner from psychic pain.
But sometimes, people say things that hurt feelings because they’re true. If you don’t want someone to call you stupid, don’t be stupid. And if a bunch of jack-booted assholes want to play act neo-Nazis, they don’t hurt my feelings. Never again, Thane. If it troubles you so what the nutjobs say or do, then you need to look into whatever emotional wound you carry and heal it. No one can hurt you with words or ideas unless you let them.
So this isn’t going to fly, Thane. Sure, it’s an outrageous niche, being another free speech hater and butthurt protector, but it’s got no traction. At least the others can play off gender politics or fear of crime to get the weak-minded to join the gang. We learned to be tough enough to never let the neo-Nazi’s get our goat fifty years ago, and we can let them speak. There is nothing they can say that will ever hurt our feelings, and if they try to hurt us physically, we will crush them.
Update: Ken White at Popehat provides an excellent discussion of the relevant legal concepts belying Rosenbaum’s argument, and why Thane’s attempt to misuse them is just a monumental botch.