There is no shortage of assertions that the harm suffered by words is real, so much so that those contending that hurtful words must be criminalized are no longer expected to explain why. It’s understood.  Thus, an intermediate appellate opinion out of Iowa discussed by Eugene Volokh either reflects  a return to sanity or an abomination, according to which side you take.

The facts are somewhat interesting, at least for those of us who were unaware that there are so many young women who go by the nickname “T-bitch” that it creates confusion.

On February 20, 2013, three high school classmates got off a school bus on the way home after school. After exiting the bus, D.S. yelled, “T-Bitch,” to get the attention of her friend T.B. The victim in this case, also having the initials T.B., thought D.S. was yelling at her so she turned around and said “what?” to D.S. D.S. replied to the victim, “I wasn’t talking to you, you fat, skanky bitch. I’m way better than you and prettier than you, and I’m not desperate like you to sleep with the bus driver.” The victim replied, “I don’t care about looks, at least I have a heart.” D.S. and the victim were approximately ten feet from each other during this exchange.

D.S.’s friend than approached D.S. and said, “let’s go.” The two left the scene and went to D.S.’s house. The victim was hurt by these words and went home and cried, reporting the incident to her mother.

One might wonder whether T.B.’s mother, after learning of the incident, reminded her of the nursery rhyme “sticks and stones,” or fostered wallowing in the misery of having been called mean and hurtful words.  Given what followed, the latter seems more likely.

[The victim]‘s reaction was to return home upset and crying despite her effort to respond to [D.S.]. This incident was the culmination of a number of likely similar incidents. [The victim]‘s mother had finally “had enough” and sought assistance from local law enforcement.

The juvenile court judge was sufficiently in agreement with mom’s having “had enough.”

The juvenile court “found there was no threat and there was no apprehension of physical threat or harm,” but concluded that D.S.’s actions were intended to “intimidate” because they were intended to make the victim “lack self-confidence in her relations with the opposite sex and about her body-build.”

In the absence of any physical threat, there was nonetheless “intimidation” based on “lack self-confidence in her relations with the opposite sex and about her body-build.”  That seems to describe the self-image of almost every young person ever.

The intermediate appellate court, however, disagreed:

The intermediate Court of Appeals rejected this theory, concluding that “intimidate” has to mean to “inspire or affect with fear” or to frighten.

Eugene, after noting that the juvenile prosecution wasn’t pursued under the “fighting words” exception to the First Amendment, concludes:

I think D.S.’s speech was likely constitutionally unprotected under that [fighting words] theory, though I entirely agree with the Court of Appeals that speech shouldn’t be punishable simply because it causes someone to “lack self-confidence in her relations with the opposite sex and about her body-build.”

This will come as a shock to advocates of criminalizing words based upon the “very real hurt” they cause.  The question isn’t, and shouldn’t be, whether words can cause a young person to feel badly about themselves, and how real or serious that hurt may be.  The question is whether the use of mean words that attack a person’s self-confidence or appearance should be criminalized.

There have been arguments made, particularly by anti-bullying, cyber-civil rights and revenge porn advocates, that speech that hurts others feelings is speech of lesser value, and therefore undeserving of First Amendment protection.  This opens the door to criminalizing such speech, which is impermissible if protected.

Such arguments are commonly proffered as a fait accompli, something that is obviously so undeserving of protection as to be unworthy of logical discussion or legal analysis.  It just is.  Except it’s not.

Should there be a new exception to the First Amendment to allow for criminalization based upon words that cause someone to “lack self-confidence in her relations with the opposite sex and about her body-build”?  This may well be the point of attack if and when a case based upon the plethora of new state laws impinging on First Amendment rights finally makes its way to the Supreme Court.  Can someone call another person fat? What if she is fat? What if she’s not?  What about stupid, with the same caveats?  For that matter, what about misogynist or racist?

Feelings run very strong within those who advocate the silencing of those whose words “stifle” the words of others because they hurt their feelings.  Of course, the argument is largely circular and ironic, since they are often the first to respond to substantive disagreement with name-calling.  But as with so many things in life, it’s fine when they do so because they’re right and you’re wrong.

And this, despite their denials, is why the entire concept is so deeply flawed and dangerous to free speech, even the free speech of those doing so much of the name calling to smear their adversaries.  This isn’t, as some will see it, a promotion of the idea that people should be mean to others, or that meanness is some virtue that needs preserving.

Quite the opposite, that it’s an unfortunate but critical by-product of free speech, as characterizations of what others think and say, and even look like, are part of expression, and there can be no exception to the First Amendment to allow criminalization of the words used by some because you hate them while allowing you to speak the truth to which you believe with all your heart and soul you are entitled.  Either we all get to speak, or no one does.

And contrary to the implicitly inherent certainty of those demanding that their adversaries be silenced, their speech is on the same chopping block.