Thane Rosenbaum has an opinion piece at the Daily Beast arguing that we should suppress the rights of Neo-Nazis and others to spout “hate speech.” That’s a common and well-meaning proposition, however misguided, but his reasoning for why we should have these laws is dangerously overbroad.
Let me start, however, by pointing out that the Nazis themselves were no fan of free speech, which puts Thane Rosenbaum squarely in the Nazi camp himself. In fact, his post violates a new Israeli law he describes with some approval:
Meanwhile, Israel’s parliament is soon to pass a bill outlawing the word Nazi for non-educational purposes.
Maybe if he gets his new speech police, their first job will be taking a closer look at his potential pro-Nazi leanings…
Nah. Not really. I don’t actually believe for even a moment that Thane Rosenbaum harbors Neo-Nazi tendencies. I’m just trying to make the point that when you pass a law, you have to give someone the power to make the decisions about who to use it against, and you could find yourself in handcuffs if they don’t share your vision of who the bad guys are. This is a recurring problem with most laws against bad speech.
For example, if these kinds of hate speech laws had been in place in the years before World War II, when Hitler’s Germany was seen by many as a bulwark against Bolshevik Communism, you might have been investigated and prosecuted for speaking out against the Nazis. (As it was, agents of Hoover’s FBI at the time considered anti-Nazi statements to be evidence of pro-communist leanings.) So if Rosenbaum ever gets his “hate speech” laws passed, he better hope no one in charge is ever offended by anything he wrote.
Then there’s his use a certain tired legal-sounding argument:
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.
There sure as hell is. You can (and should) shout “Fire!” if the theater is on fire. Or if it’s a theatrical theater instead of a movie theater, the performers can certainly shout “Fire!” if it’s part of the play. The original quote that Rosenbaum is referencing is from a Supreme Court decision on Schenck vs. United States written by Oliver Wendell Holmes: “The most stringent protection would not protect a man in falsely shouting fire in a theater and causing a panic.”
Note the parts about “falsely” and about “causing a panic.” The scenario Holmes describes is about making false statements of fact (not just opinion) in a situation where people would not have time to give it due consideration and debate (because the theater might be on fire) which causes actual harm (by causing a panic). This is a far cry from “hate speech” which might possibly influence someone to make the decision at some point in the future to do something wrong.
(Holmes himself did not see these distinctions, and upheld restrictions on speech in Schenck, but they were soon wiped out by later decisions, including some by Holmes himself. Ken White tells the whole story.)
As I said earlier, however, Rosenbaum’s argument really goes off the rails when he explains the reason he wants speech-restricting laws:
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. And recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in New South Wales, show, among other things, through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic. Physical pain subsides; emotional pain, when recalled, is relived.
Pain has a shared circuitry in the human brain, and it makes no distinction between being hit in the face and losing face (or having a broken heart) as a result of bereavement, betrayal, social exclusion and grave insult. Emotional distress can, in fact, make the body sick. Indeed, research has shown that pain relief medication can work equally well for both physical and emotional injury.
He doesn’t link to these studies, so I don’t know how to evaluate them, but this seems plausible (especially if the pain relief medication he speaks of is an opium derivative).
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?
In other words, he’s advocating laws against hate speech as part of a larger policy of laws against causing emotional harm in general. This strikes me as a horribly bad idea.
For one thing, I can’t imagine how you’d establish emotional pain outside of a laboratory setting. Sticks and stones leave bruises and broken bones, which are clear and objective signs of injury. Both common sense and medical science tell us there will be pain and suffering. Calling someone bad names, though…that’s a lot harder to prove. Broken bones always hurt. Bad words are more subjective.
For example, I was in high school when serial killer John Wayne Gacy was arrested for raping and killing 33 young men and boys here in Chicago, and a kid named Harry (I think) decided to make fun of me because he thought I looked a bit like Gacy. Whenever I’d run into him or pass him in the hall, he’d call out “Gacy!” at me. (He wasn’t very inventive.) This was arguably a pretty hateful thing to do, and at the time, a friend who’d observed Harry’s harassment asked me why I let him get away with it.
I was completely surprised by his question, because until he asked, it had simply never occurred to me that I should care what Harry said. Obviously, my friend had strongly different feelings about it. And that raises the question of whether Harry’s speech comparing me to one of America’s most monstrous serial killers would be some sort of crime under the emotional harm statutes envisioned by Rosenbaum.
Since I suffered no emotional harm, then maybe not. But what if Harry had been picking on my friend instead, who clearly felt it was much more demeaning? It’s a strange and confusing way to define a crime when it depends on how the victims feel about it. It’s also rife for abuse by people who are good at faking their feelings, such as sociopaths. Pass this sort of law, and someone will figure out a way to harass people or make money by filing wholesale accusations about hurt feelings.
(Intent is important as well, and can be difficult to judge. For example, misunderstandings have arisen because foreigners visiting America don’t realize that young black boys will get offended if you address them as “boy.” And if the young black man responds with angry words, is he being insensitive to the foreigner’s culture? So which one should we arrest for causing emotional harm? The one who feels most hurt? The black guy as usual? It could go either way, and neither one is good.)
In the marketplace of ideas, there is a difference between trying to persuade and trying to injure. One can object to gays in the military without ruining the one moment a father has to bury his son; neo-Nazis can long for the Third Reich without re-traumatizing Hitler’s victims; one can oppose Affirmative Action without burning a cross on an African-American’s lawn.
That’s where Rosenbaum’s argument breaks down completely. In the paragraph above, Rosenbaum is picking sides and dismissing the feelings of people he disagrees with. He speaks of people who “object to gays in the military” as if they had some antiseptic policy concerns. But the people who object to gays in the military, or gay teachers, or gay Boy Scouts, or gay marriage, or gay anything, do so because they are genuinely upset by homosexuality.
I know of no reason to think anti-gay people are faking when they claim to be disgusted by gay sex. I’m sure they find it genuinely disturbing. I’ll bet the discomfort they experience from seeing two men kissing — or even just from knowing that people somewhere are having man-on-man oral and anal sex — would be measurable on those brain scans Rosenbaum mentioned.
To pick one example, if we’re going to make it a crime to cause emotional distress, then shouldn’t gay “kiss-ins” — gay couples visiting non-gay bars or restaurants in large groups and then all starting to make out at the same time — be a hate crime? After all, they do it with the explicit intention of freaking out anti-gay bigots.
While we’re at it, I’m pretty sure that opponents of inter-racial sex and marriage also experienced genuine emotional harm from miscegenation. Just seeing a young white women in the company of a black man must have been very upsetting to all the good white folk. You can pick almost any controversial social trend — women wearing pants, men with long hair, women drinking in bars, birth control and casual sex — and you can find some people who were very upset about it. Should they all have the power of laws against emotional harm to suppress the things that upset them?
I suppose supporters of emotional harm laws could counter that my examples are silly: That’s not the kind of emotional harm they’re talking about, and no one is going to use those laws to arrest anybody for those kinds of things. But that’s because I wanted to illustrate the absurdity of such laws, so I chose examples of social conflicts which have already been won: Blacks and whites can get married, women can get birth control, gay sex is legal.
But there was a time in this country when the majority of people (or at least the majority of people with political power) thought all of those things were wrong, and they probably would have been illegal under Thane Rosenbaum’s envisioned system for punishing people who caused emotional harm. (In fact, many of them were illegal even without his laws.)
Let me put it this way: If laws against emotional harm had existed in 1950 and police were called because two gay men were caught making out in an alley behind a bar and a group of onlookers were yelling anti-gay slurs at them…who do you think would get arrested? Or if a bunch of gay-rights advocates were protesting a group of preachers who were denouncing sodomites, who do you think would would be accused of causing emotional harm? If a black civil rights group denounced a leader of industry as a racist, and he claimed emotional harm from that, who do you think the police would be more likely to arrest?
There’s plenty of historical evidence. The black Americans who lead the civil rights movement were denounced as agitators, traitors, and communists, all because they demanded rights that are nowadays considered uncontroversial. The first women to complain about sexual harassment were denounced as man-hating troublemakers. More recently, gays who want to get married have been denounced for harming straight marriage.
Obviously, some people say hateful things because they are intentionally trying to hurt other people, but an awful lot of people say these things because they really believe them. Just because someone is an anti-gay, -black, -women, -Jew, -gay bigot doesn’t mean their feelings aren’t genuinely hurt when someone denounces them for it, often because they just can’t see what they’re doing wrong. For example, in recent years, the traditionally male-dominated subcultures of atheism and computer gaming have gone through several flare-ups in which women complained of sexism and were in turn accused of being oversensitive and mean. If those communities had adopted Rosenbaum’s rules against emotional harm, do you think they would have been used against the men accused of sexism or the women who dared to accuse them?
Actually, the United States is an outlier among democracies in granting such generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags. Many more countries have outlawed Holocaust denial. Indeed, even encouraging racial discrimination in France is a crime. In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma.
I mean no disrespect to my lawyer readers when I say that the goals of “mutual respect and civility” will probably not be helped by making it easier for people involved in emotional disputes to file lawsuits or criminal charges.
Consider the current ongoing fight between lesbians, feminists, and trans women over competing definitions of who belongs to the right tribe. It’s ugly and it’s mean and lots of people’s feelings are hurt. As a privileged heterosexual cis male, I have only the vaguest idea what the issues are and no sense at all of the feelings in play. But if it was against the law to hurt people’s feelings, some judge — probably a hetero cis male like me — would be expected to figure it out and punish the malefactors. Does anybody really believe such a clueless intervention would make things more civil?
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.
Laws against causing emotional harm will only protect those who are in the majority or those minorities who are easy to sympathize with, or who have gained political power. Powerless minorities, as always, would be ignored, or would themselves be accused of causing emotional harm when they protested their treatment. Abridging free speech will cause more discord than it will prevent. Free speech is not an impediment to civil society, it is the mechanism through which civilized societies resolve their internal differences.