Exhaustion in the First Degree

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.


30 thoughts on “Exhaustion in the First Degree

  1. N

    I’m curious, what regulation is appropriate here?

    I mean, it is isn’t as if he was publishing a demeaning paper, or broadcasting an insulting television program, or posting a misogynistic series of blog post. This was speech in the purest sense of the word, words uttered on the street.

    The only regulation that would be appropriate in this circumstance would be criminal sanctions. So how much jail time is appropriate for this man?

    1. SHG Post author

      Not to speak for Nancy, but I would guess that the idea would be that this fall under harassment laws, which often include language about “conduct” that “annoys,” even though its been held unconstitutional.

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  3. N

    So a misdemeanor? Up to a year in the county jail?

    I ask, because I always wonder about this. People say that something should be banned, made illegal, punished, but they don’t seem actually follow it through to what that means. If you want to regulate and punish misogynistic speech, then you have to be prepared to lock people up, at the point of the gun. And I hate all the dancing around that simple fact.

      1. Patrick Maupin

        Well, you see, it HAS to be at the point of a gun. Because, if the correction was easy, like, say, just telling him to cut it out, that would have three very bad consequences:

        We wouldn’t need as many cops.

        Someone might ask the obvious question – why wouldn’t Nancy just talk to him herself?

        She might have to try it, just to report on what would happen, and who knows where that might lead? Too many civil conversations and she’ll run out of bad things to blog about.

        1. SHG Post author

          In fairness, the reason Nancy wouldn’t “just talk to him” is that she might be afraid that this screaming maniac would then turn violent. While there is no evidence that this would happen, it’s also not outside the realm of possibility, and she did nothing that would require her to risk some lunatic on the street (who likely is stronger than her) turning physically violent with her.

          A better option would be to keep on walking, shrug it off as just another annoyance in a life filled with annoyances (as so many of us endure) and move on with more important things.

          1. Patrick Maupin

            In fairness, the reason Nancy wouldn’t “just talk to him” is that she might be afraid that this screaming maniac would then turn violent.

            As you point out, there are no expedient constitutional answers. If we leave out the unconstitutional answers, the remaining ones are mostly educational — more speech. It used to be that we had societal mechanisms that helped produce this educational speech, but those were deemed patronizing, even infantalizing.

            1. SHG Post author

              The view is that we can micromanage our way to a perfectly happy society though governmental regulation. And don’t say “infantilizing,” as that’s ageist.

  4. se

    I will nitpick a bit:
    * “playing with this children” was probably meant to be “playing with his children”.
    * “Was he mentally ill. Was he alone in the world, pathetic and unloved.” sentences sounds as if they were meant to have questions marks.

      1. Mike

        I’m not quite sure that simple math is the only canon of statutory interpretation involved here, but even so, does the rationale extent to trumping the express language of the First Amendment by the potential emanations and penumbras of the 14th?

        I think you meant extend, not extent.

        1. SHG Post author

          Whatever happened to the days when someone sent me an email that I made a typo so the whole friggin’ world didn’t have to notice? Fixed. Thanks.

          1. David M.

            Would you really like it if someone sent you a daily typo email? Really? You’d want their entrails on a platter by day four.

            1. SHG Post author

              I actually get that every day from my editrix, Marilou, who is apparently sleeping in today. And, often, a few other friends as well. I make a lot of typos.

  5. Ross

    I would say Nancy’s bad day started when she tried to use the 14th Amendment to put limits on the 1st Amendment to create a world that satisfies her own view of how things should be. What next, an implied right to unlimited unicorns and rainbows? How about when her kids (if she has any) exhaust others with their annoying whining? Should that be regulated too?

  6. Mark D

    Such a delightfully sarcastic lob down the middle. I’ll indulge.

    Are you implying that Ms. Leong failed to fully consider the counter-narratives of her particular journey on the (not quite so) open road?

  7. Charles Platt

    The situation that Nancy Leong describes is very familiar. A typical scenario while I lived in New York:

    Street person, big friendly grin: “Hey, how you doin?” Trying to block my path. “Hey, listen, help me out, please? Just a little something. God bless you.”

    Me: “Please don’t say ‘God bless you.'”

    “Well then fuck you, get the fuck out of my face, asshole!”

    You will note the same rapid transition from ingratiation to abuse that Nancy Leong describes, except I happen to be male. Oh, and one time long ago, a drunk guy tried and almost succeeded to drag me into an empty construction site on the Bowery, saying, “You ever had sex with a black man? You’re gonna love it.” And of course before that I was robbed in the street by a guy with a knife.

    My point is that although a woman may get much more harassment, it is not unique to the female gender, and maybe should be evaluated simply as harassment to varying degrees (sometimes leading to assault or robbery), since that’s what it is.

    As for dealing with it–I was fortunate enough to be able to move out of New York City, because I didn’t know how to deal with it. No harassment of this kind occurs where I live now, probably because anyone can carry a concealed weapon without license or registration. It may not be coincidental that the homeless people are VERY polite.

    1. SHG Post author

      Being a New Yorker, having guys on the street approach or talk to you is ordinary. They ask guys for money, gals for smiles, whatever. It’s just part of the background noise of life. I keep walking and never think of it again. Same with my wife. Same with my kids. It’s just life in the city.

      On the other hand, are you urging Nancy to carry a concealed weapon?

      1. ExCop-LawStudent

        Everyone should carry concealed weapons.

        “An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” Robert A. Heinlein, Beyond the Horizon (1942).

      2. Patrick Maupin

        From what I have seen, concealed carry can be a great confidence booster, allowing the timid to shrug off petty meanness in the streets more easily.

        Of course, some people already have way too much confidence, and some people will fall into the same hammer/nail trap that we see far too often with police: “I have this gun handy — what needs shooting?”

      3. Charles Platt

        I did my best to ignore the routine interference in my life in New York, while living there for 25 years. But seeing a knife pointing at my stomach was memorable. Freedom from being hassled is something I now take for granted, and is valuable to me. Whether concealed carry takes the credit, I don’t know. But I tend to think that people functioning on a primitive level will respond to a disincentive that is more direct than the machinery of the law. I don’t carry a weapon myself, because I dislike handling guns, but I feel I benefit from living in a society in which anyone *might* be armed. (Just my opinion, of course.)

        1. SHG Post author

          Someone putting a knife to your gut is different than someone calling you a name. Sure, I wish it didn’t happen. It’s not exactly pleasant for anyone. The question is how badly you want it not to happen to take it to the next step, whether it’s a bullet or an arrest (and maybe a bullet).

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