Laws for the speech war
Is ‘strict liability’ or ‘reasonable care’ the better standard?
“He needs to own his impact,” said a University of Maryland undergraduate about a professor who offended students by using the n-word. Spoken during a lecture about racial slurs, presumably with the aim of conveying the jarring affront of the epithet without re-inflicting a historic injury, his utterance nonetheless left students feeling wounded.
“He may not have intended it,” the student continued, “but if you rear-end someone’s car and smash their bumper, you pay up whether you meant to do it or not.”
Whether she meant to do it or not, the student invoked a well-established concept derived from the realm of torts: strict liability. In tort law, strict liability renders an individual legally culpable for the consequences of his or her actions, regardless of intent or mitigating circumstances. Strict liability applies to inherently dangerous activities, like speeding (not knowing the speed limit won’t get you out of a ticket), using explosives or husbanding dangerous animals. Even if all proper precautions are taken, if a construction blast injures a pedestrian, in most states strict liability assigns fault to those responsible, no explanations or excuses.
The Maryland student is not alone in believing we should apply a form of strict liability to speech, as a social if not a legal matter.
At Princeton, an anthropology course on offensive symbolism was abruptly canceled after students staged a walkout to protest the repeated use of the n-word, again by a professor pleading no intent to offend.
Last month, a New York Times opinion editor, Bari Weiss, tweeted the famous line from Hamilton, “Immigrants, they get the job done!” lauding U.S. figure skater Mirai Nagasu for completing a triple axel at the Olympics. When followers pointed out that Nagasu is American-born, Weiss defended the tweet as supportive. But critics piled on nonetheless.
Sony Pictures has faced a backlash over a scene in its new film “Peter Rabbit,” in which rabbits throw blackberries at an allergic Mr. McGregor, forcing him to inject himself with an EpiPen. No one thinks the studio was intentionally mocking allergies, but its apparent blindness to the health concerns involved provoked outrage.
Cluelessness is not a convincing defense for speech that aggrieves others. In a diverse society with fast-changing mores, we owe it to one another to think through how our words may be understood and misunderstood. We are on notice that speech travels via tweets and video clips, often unaccompanied by explanatory or exculpatory context. When addressing potentially sensitive subjects, speakers should consider the reaction of groups — racial or religious minorities or allergy sufferers — for whom particular words and concepts can land hard.
But if we demand that speakers account for the possible reaction of every prospective listener, the only sound strategy might be to keep silent.
Rather than applying strict liability for any offense our words may cause, we should look to another tort law concept, “duty of care,” which holds that when performing an act that could foreseeably harm others, reasonable care is required.
Tort doctrine acknowledges that harm-prevention is not the law’s sole goal. As a society, we weigh individual freedom and other objectives against the prevention of harm; that’s why we have speeding laws but not, say, a universal limit of 20 miles per hour. The same sort of balancing act is necessary when it comes to speech.
If we want to give new and controversial ideas a chance, and to be able to examine even noxious concepts in the controlled setting of academia, we cannot treat all instances of offensive speech as equally blameworthy.
When a speaker gives offense despite having taken reasonable care, the emphasis should be on explanations and dialogue, not outrage and punishment.
Although there is no single, common standard of care applicable to speech, certain factors inform what level of conscientiousness is fair to expect: The identity of the speaker matters, as does context.
Institutions like universities, corporations, government bodies and film studios should bear a high burden of forethought; they should be cognizant of the pain points for their students, consumers, constituents and audiences. When a professor knows certain language can cause serious distress, he should ensure that the educational value of using a particular word, rather than a euphemism, outweighs the risk of distraction and dolor. When social passions are inflamed — due to the prospect of Dreamer deportations or a spike in white supremacist activity — speakers should be mindful of the backdrop behind their words.
Not every reaction to speech, however, is entirely a function of reason.
Emotions, traumas and simmering anger can render even innocent words incendiary to certain listeners in ways that the speaker may understand after the fact, but still not have foreseen. In such cases, intent should matter as well as impact.
A strict liability framework treats speech as an intrinsically dangerous activity. But a society that prizes free expression should be wary of punishing speech that gives offense beyond what’s predictable. Reasonable care is the better standard.