First, there was bullying. Then, cyberbullying. Next up was revenge porn. Now, it’s street harassment. The common thread between these wrongs that have generated calls for criminalization is that the harm to be ended isn’t objectively observable, quantifiable, provable, but ephemeral and personal. They seek redress for hurt feelings.
Before anyone blows a gasket, this isn’t to say that hurt feelings aren’t real, or that they can’t also produce objective cognizable harms, such as public ridicule or loss of employment opportunity. And some people whose feelings are deeply hurt harm themselves, to the point of committing suicide. This is a tragedy, as is any needless taking of life.
But the sticking point isn’t so much about whether hurt feelings are sufficiently serious as to warrant a criminal law, but rather how a law, an expression of elements of an offense in words, can be drawn in such a way as to clarify what is prohibited so that it is limited to the offensive conduct without giving rise to ambiguity. It’s the ambiguity that opens the door to unconstitutional impacts, whether facial or as applied.
Non-lawyers, understandably, have a difficult time understanding why this is so. They read the words of proposed laws and clearly understand what is intended. They lack the experience with the law, with the execution of the law, to see beyond their certainty that they know what a law means. The problem isn’t what they are certain it means; the problem is what it says.
I’ve invoked the Rule of Lenity here in the past, often to be met with a certain amount of confusion. Walter Olson at Overlawyered posts about it, offering a far more detailed explanation of why it exists and its critical importance. He starts with a quote from the beloved Nino Scalia:
Justice Scalia on the rule of lenity in U.S. v. Santos, 2008:
This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.
Putting aside the whole activist aspect, the Rule of Lenity is a rule of statutory construction, that ambiguity in a law is resolved in favor of the defendant, as “no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.” In other words, before anyone can be held accountable for a crime, he must know with certainty what conduct is prohibited.
When laws are crafted to prohibit conduct that produces the outcome of hurt feelings, the nature of the hurt becomes an element of the offense. It’s hard, if not impossible, to assess in advance the feelings that conduct will produce in another person. The delicate flower will be hurt by almost anything. The indelicate will not be hurt by much of anything. Each of us assumes that our level of hurt-iosity is the normal level that normal people would find hurtful. It’s a facile self-delusion, but we believe it, and so it must be.
There is a secondary, constitutional dimension aspect to this problem, that has been discussed here at great length, about the right to say things that hurt other people’s feelings. If someone says something you think is stupid, you have a right to tell them that what they said is stupid. And they have a right to respond that you’re stupid too, plus you suck.
The issues of statutory construction and constitutional impairment are separate, but dovetail. Courts could narrow the application of a statute that says it prohibits constitutionally protected speech by holding that it can’t and doesn’t, but is otherwise fine as to the conduct it is intended to prohibit. Yes, this is the activism that Scalia derides, but it appears from legislative sloppiness and compromise, lawmakers figure the courts will clean up their mess when the times comes, saving them from the hard work of crafting clear laws.
But more likely is the push of advocates to pander to their interest groups that the inability to craft unambiguous laws is less important than their need to end the horror of hurt and criminalize the conduct they hate. It’s not that they figure a court will clean up the mess later, but that they couldn’t care less how badly a law is crafted, or the unintended consequences of their cries for justice. Take one for the team is the rallying cry of those who demand that no feelings ever be hurt again. The feelings of those who are expected to take one for the team, well, never quite get the same concern.
Vikrant Reddy has written a thoughtful homage to the importance of the Rule of Lenity at Texas Policy, noting that the rule is eroding.
Although this understanding should be perfectly ordinary, the application of the rule of lenity has in fact begun to erode dramatically in recent years. This has happened in concert with a troubling phenomenon: the dramatic growth of criminal law in a variety of non-traditional arenas, generally involving freely agreed-upon exchanges between adults.
He writes in the context of regulatory crimes, malum prohibitum, as a means of enforcing conduct through criminal sanction that is otherwise wholly lacking in any moral culpability. As the disconnect between wrongs that should be stopped and the ability to express them with sufficient clarity that criminal laws say exactly, and only, what they mean, without reliance on the vague Potter Stewart punt, the Rule of Lenity dies a little bit.
Whenever someone says “there ought to be a law,” the response should be “prohibiting what?” What any honest person will grasp is that crafting a law that only criminalizes the evil they think needs eradicating, without impinging on other conduct or rights, is very hard. And when an aspect of the law is the harm done to someone else’s feelings, it’s essentially impossible.