We reg­u­late slan­der. Why not hate speech?

Racist and sex­ist ha­rass­ment can lead to con­crete neg­a­tive con­se­quences.

Los Angeles Times - - OPINION - Laura Beth Nielsen is di­rec­tor of the le­gal stud­ies pro­gram and pro­fes­sor of so­ci­ol­ogy at North­west­ern Univer­sity and re­search pro­fes­sor at the Amer­i­can Bar Foun­da­tion. She is the au­thor of “Li­cense to Ha­rass: Law, Hi­er­ar­chy, and Of­fen­sive Pub­lic Speech.”

As a so­ci­ol­o­gist and le­gal scholar, I strug­gle to ex­plain the bound­aries of free speech to un­der­grad­u­ates. De­spite the 1st Amend­ment — I tell my stu­dents — lo­cal, state, and fed­eral laws limit all kinds of speech. We reg­u­late ad­ver­tis­ing, ob­scen­ity, slan­der, li­bel, and in­cit­ing law­less action to name just a few. My stu­dents nod along un­til we get to racist and sex­ist speech. Some can’t grasp why, if we re­strict so many forms of speech, we don’t also re­strict hate speech. Why, for ex­am­ple, did the Supreme Court on Mon­day rule that the trade­mark of­fice can­not re­ject “dis­parag­ing” ap­pli­ca­tions—like a re­quest from an Ore­gon band to trade­mark “the Slants” as in Asian “slant eyes.”

The typ­i­cal an­swer is that judges must bal­ance ben­e­fits and harms. If judges are asked to com­pare the harm of re­strict­ing speech — a cher­ished core con­sti­tu­tional value — to the harm of hurt feel­ings, judges will rightly choose to pro­tect free ex­pres­sion. But per­haps it’s non­sense to char­ac­ter­ize the na­ture of the harm as noth­ing more than an emo­tional scratch; that’s a re­flec­tion of the deep in­equal­i­ties in our so­ci­ety, and one that demon­strates a pro­found mis­un­der­stand­ing of how hate speech af­fects its tar­gets.

Legally, we tell mem­bers of tra­di­tion­ally dis­ad­van­taged groups that they must live with hate speech ex­cept un­der very lim­ited cir­cum­stances. The KKK can pa­rade down Main Street. Peo­ple can’t falsely yell fire in a theater but can yell the N-word at a per­son of color. Col­lege women are told that a crowd of frat boys chant­ing “no means yes and yes means anal” is some­thing they must tol­er­ate in the name of (some­one else’s) free­dom.

At the same time, our regime of free speech pro­tects the pow­er­ful and pop­u­lar. Many city gov­ern­ments, for in­stance, have banned pan­han­dling at the be­hest of their busi­ness com­mu­ni­ties. The le­gal jus­ti­fi­ca­tion is that the tar­gets of beg­ging (com­muters, tourists, and con­sumers) have im­por­tant and le­git­i­mate pur­poses for be­ing in pub­lic: to get to work or to go shop­ping. The law there­fore pro­tects them from ag­gres­sive re­quests for money.

Con­sider also the pro­tec­tions af­forded to sol­diers’ fam­i­lies in the case of West­boro Bap­tist anti-gay demon­stra­tions. When the Supreme Court in 2011 up­held that church’s right to stage of­fen­sive protests at veter­ans’ fu­ner­als, Congress passed the Hon­or­ing Amer­ica’s Veter­ans’ Act, which pro­hibits any protests 300 to 500 feet around such fu­ner­als. (The statute made no men­tion of pro­tect­ing LGBTQ fu­neral at­ten­dees from hate speech, just sol­diers’ fam­i­lies).

So sol­diers’ fam­i­lies, shop­pers and work­ers are pro­tected from trou­bling speech. Peo­ple of color, women walk­ing down pub­lic streets or just liv­ing in their dorm on a col­lege cam­pus are not. The only way to jus­tify this dis­par­ity is to ar­gue that com­muters asked for money on the way to work ex­pe­ri­ence a tan­gi­ble harm, while women cat­called and worse on the way to work do not — as if be­ing the tar­get of a re­quest for change is worse than be­ing racially dis­par­aged by a stranger.

In fact, em­pir­i­cal data sug­gest that fre­quent ver­bal ha­rass­ment can lead to var­i­ous neg­a­tive con­se­quences. Racist hate speech has been linked to ci­garette smok­ing, high blood pres­sure, anx­i­ety, de­pres­sion and post-trau­matic stress dis­or­der, and re­quires complex cop­ing strate­gies. Ex­po­sure to racial slurs also di­min­ishes aca­demic per­for­mance. Women sub­jected to sex­u­al­ized speech may de­velop a phe­nom­e­non of “self-ob­jec­ti­fi­ca­tion,” which is as­so­ci­ated with eat­ing dis­or­ders.

These neg­a­tive phys­i­cal and men­tal health out­comes — which em­body the his­tor­i­cal roots of race and gen­der op­pres­sion — mean that hate speech is not “just speech.” Hate speech is do­ing some­thing. It re­sults in tan­gi­ble harms that are se­ri­ous in and of them­selves and that col­lec­tively amount to the harm of sub­or­di­na­tion. The harm of per­pet­u­at­ing dis­crim­i­na­tion. The harm of cre­at­ing in­equal­ity.

In­stead of char­ac­ter­iz­ing racist and sex­ist hate speech as “just speech,” courts and leg­is­la­tures need to ac­count for this re­search and, per­haps, al­low the re­stric­tion of hate speech as do all of the other eco­nom­i­cally ad­vanced democ­ra­cies in the world.

Many read­ers will find this line of think­ing re­pel­lent. They will in­sist that pro­tect­ing hate speech is con­sis­tent with and even central to our found­ing prin­ci­ples. They will ar­gue that reg­u­lat­ing hate speech would amount to a se­ri­ous break from our tra­di­tion. They will triv­i­al­ize the harms that so­cial sci­ence re­search un­de­ni­ably as­so­ciates with be­ing the tar­get of hate speech, and call peo­ple seek­ing recog­ni­tion of these af­fronts “snowflakes.”

But these free-speech ab­so­lutists must at least ac­knowl­edge two facts. First, the right to speak al­ready is far from ab­so­lute. Sec­ond, they are ask­ing dis­ad­van­taged mem­bers of our so­ci­ety to shoul­der a heavy bur­den with se­ri­ous con­se­quences. Be­cause we are “free” to be hate­ful, mem­bers of tra­di­tion­ally marginal­ized groups suf­fer.

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