Among academics who tend to toe the social justice warrior line, Denver lawprof Nancy Leong tends to be one of the more reasonable, more thoughtful ones. It’s not that she doesn’t have her perspective, but she’s open to discussion. And that’s what made her post surprising and, well, disappointing.
Nancy had a bad day.
I was harassed three times in a four block walk to get coffee this morning. For those who think street harassment is no big deal, here’s a transcript of the second-most offensive incident:
“Hey beautiful. Slow down. How about a smile? No smile? Why so unfriendly? Okay, you stuck up bitch. [now yelling at my back] STUCK UP CUNT.”
A few things. First, I don’t actually have the heart to memorialize the most offensive incident on my blog.
Because I trust Nancy wouldn’t fabricate a story to make a point, I’m fully prepared to accept her suggestion that the most offensive incident was really bad. Her second, duly presented, was pretty terrible. Her take on the loser who stands on the street saying, then yelling, such things:
[N]otice how quickly the perpetrator of the second most offensive incident went from “beautiful” to “stuck up cunt.” So the remarks aren’t really about me and my personal characteristics, per se, they’re about a guy feeling entitled to attention from a woman he’s never met and getting angry when that attention isn’t given.
While she’s certainly right that this had nothing to do with her, per se, as she was just a random person who fell within this jerk’s sphere of attention, the leap to imputing feelings of entitlement to him is curious. It strikes me that this is more about him, his feelings of worthlessness, of being ignored, than her.
There are questions unanswered here. Was he unemployed, uneducated, hanging out on the street because he had nowhere else to be? Was he a man of color? Was he mentally ill? Was he alone in the world, pathetic and unloved? Nancy doesn’t say.
I wonder why her concern doesn’t extend to why this guy is on the street yelling at random women rather than working, or going to school, or playing with his children. Where is the concern over whether society has marginalized him, leaving him with no option for recognition other than to yell at random people on the street. I suspect she would be so concerned, but for the fact that he was yelling at a woman. Particularly since the woman was Nancy Leong.
Despite the many lingering questions, Nancy takes a leap:
If we actually read the First Amendment through the lens of the Fourteenth Amendment in any kind of meaningful way (which, actually, we should, because of pretty basic canons of interpretation like “last in time” and tricky math concepts like 14 > 1) we’d recognize that inequality-reinforcing speech deserves regulation and punishment.
I’m not quite sure that simple math is the only canon of statutory interpretation involved here, but even so, does the rationale extend to trumping the express language of the First Amendment by the potential emanations and penumbras of the 14th? How hearing words that are upsetting (and distracting, as Nancy had a busy day) comprise “inequality-reinforcing” speech requires a myopic focus on ideology.
Of course, we don’t do that in America.
Well, not yet, anyway.
We prioritize the speech of some misogynist loser yelling at a woman on her way to the office over whatever that woman might say once she gets there.
Yes, of course we do. Even misogynistic losers have constitutional rights, though whatever that woman might want to say once she gets to her office is pretty much her own choice, unless the misogynistic loser happens to be the dean of her law school. I doubt that’s the case or Nancy would have mentioned that. So it seems fair to conclude that the woman was free to call the misogynistic loser anything she wanted once she got back to her office. Even really bad names. Did someone deny Nancy her right to do so?
Or, perhaps more accurately, what she might say if she wasn’t distracted and exhausted from the daily grind of street harassment. There are speech interests on both sides of the street harassment debate, but First Amendment absolutists are hellbent on only seeing one of them.
Aha. Now we get to the heart of the problem, and this is what caught my eye when I read Nancy’s post. Aside from her use of the pejorative “First Amendment absolutists,” as distinguished from First Amendment relativists, one word keeps popping up in writings seeking to silence speech that hurts their ears: exhaustion.
Women are exhausted. It’s exhausting to hear bad words. They’re too exhausted to say “no.” They are too exhausted to go to the police, and too exhausted to tell anyone what happened within the first six months. They are just so very, very exhausted.
I get it. I feel your exhaustion. I’m exhausted too. It’s exhausting to deal with things that annoy you constantly, and yes, it’s constant. The things that I find exhausting are different than Nancy, and my preferred description is “sick and tired,” as in I’m sick and tired of people complaining about how they’re too exhausted to suffer mean words uttered by someone so pathetic that they hang out on the street yelling at random women, as if they’re going to get wild sex out of the deal.
But life is exhausting. People are exhausting. And we exhaust each other. If being exhausting gives rise to a crime and punishment, we’re all going down. Nancy too. Somebody out there finds you exhausting. I may not know who, but I’m sure of it.
Some day in the future, Nancy is going to look back on her post and regret having written it. Maybe because she will realize that she just beat up on some poor, societally neglected poor black guy, or maybe because she ridiculed the mentally ill for her own sake. But definitely because she called for punishment because his bad words reached her delicate ears.
Nancy Leong knows better than this. Nancy doesn’t really want people to be punished for saying mean things, even though they were said to her this time. She’s a tough lawprof, and she can handle a nasty name without flinching. I think she just got caught at a bad moment, causing a lapse in judgment. She was probably a little too vulnerable because she was exhausted. That can happen. It happens to all of us.