Verbal harassment harmful, but not currently criminal

Two years into the COVID-19 pandemic, and a year after the fatal spa shootings in Atlanta that targeted and killed people of Asian descent, reports of anti-asian American and Pacific Islander violence and bigotry have increased. Stop AAPI Hate, an organization tracking and reporting on these acts of racism that started since the stay-at-home orders began in the United States, released its most recent report this month, noting that verbal harassment continues to make up the largest share of reported incidents. Despite the fear and harm caused by the kind of street harassment lobbed against Asian Americans and Pacific Islanders, the conduct isn’t criminal, leaving little recourse for its victims.

“If speech had no effect, we wouldn’t be protecting it as a fundamental right of the constitution. Speech can have tremendously beneficial effects, but speech can also be really harmful and cause psychological harm and physical manifestations of the psychological harm,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “The fact that the speech is offensive and upsetting isn’t enough under current First Amendment law for it to be punished.”

Chemerinsky was also the founding dean of the University of California Irvine School of Law; has written more than 200 law review articles; and authored more than a dozen books, including his most recent, “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.” Michael Ichiyama is a clinical psychologist and chair of the department of psychological sciences at the University of San Diego. They each took some time to discuss verbal harassment from a legal and psychological perspective, looking at how it’s defined and the ramifications for its victims. (These interviews have been edited for length and clarity. For a longer version of this discussion, visit sandiegouniontribune.com/sdutlisa-deaderick-staff.html.)

Q:

In general, can you talk about what typically qualifies as verbal harassment, from a legal perspective?

Chemerinsky: The law is clear that free speech is generally protected in our society, even very offensive speech is generally protected. However, it’s not an absolute right, so threats are not protected by the First Amendment. If speech is such that would cause a reasonable person to fear for imminent harm to his or her physical safety, that’s not speech protected by the First Amendment. If somebody is walking down the street, and a group surrounds that person, and says things to that person that would cause that person to fear that he or she is about to be beaten, those who engage in the speech can be punished even if no blows are struck. There’s no First Amendment right to cause people to feel threatened.

Harassment in the context of an educational institution or workplace is speech that’s not protected by the First Amendment. If an employer says to an employee, ‘Sleep with me or you’re fired,’ the fact that it’s speech doesn’t mean it’s constitutionally protected. It’s not. In fact, in the context of educational institutions or workplaces, the law is clear that speech that materially interferes with a person’s employment or educational opportunities on the basis of race, sex, religion or sexual orientation, isn’t protected.

In this context, street harassment can cover a wide array of different kinds of expression. It can be simply yelling a slur to somebody on the basis of their race or their sex. It can be offensive, sexist comments made to women as they’re walking down the street. It could also rise to the level of a reasonable person feeling threatened by it. Under the First Amendment, the offensive speech is protected. You can’t punish somebody just for saying something that’s offensive, but if it’s threatening or if it rises to the level of harassment in the workplace or the school, then it’s not protected by the First Amendment.

Q:

It sounds like that speech has to be like a direct threat, like, ‘I’m going to hit you.’

Chemerinsky: The closer it comes to a direct threat, the clearer it is, but it doesn’t have to be a direct threat. The circumstances will matter enormously, and if the circumstances are such that a reasonable person under the circumstances would fear for his or her physical safety, that’s speech that can be punished.

Q:

Can you talk about what typically qualifies as verbal abuse, from a psychological perspective?

Ichiyama: These involve verbal acts done with the intent to humiliate, insult, threaten, demean and/or intimidate others. These verbal transgressions often involve themes related to manipulation and exerting power and control over others.

Q:

In what ways do instances of verbal harassment affect mental and emotional health?

Ichiyama: These could include increased levels of overall anxiety/ fear, hypervigilance around one’s environment, social isolation and withdrawal, and self-degradation to name a few. If prolonged or repeated incidents, it can potentially result in despair and depression. Maladaptive coping with the stress, such as alcohol/substance abuse may be present. In severe cases self-harm behaviors or suicidal ideations could occur. Verbal transgressions toward Asian Americans are frequently based on the prejudicial stereotypes that all Asians are the same (“clumping”), or that all Asians are foreigners (and not really American), or in the most recent context that Asians are responsible for the COVID-19 pandemic. Because of things like this I always look for the potential of the victim internalizing the hostile messaging they received from racially-based verbal transgressions.

Q:

In your professional experience, what can people do to care for themselves if they’ve experienced verbal harassment?

Ichiyama: Avoid social withdrawal. Reach out to loved ones and people you trust. Pay attention to your reactions (physical, psychological, emotional and behavioral) to the verbal transgression(s). Be open to seeking mental health treatment. Not keeping what happened a “secret” is key. Friends or loved ones can reach out to support victims of racial transgressions. They don’t need to “solve” anything, but by lending a caring ear they can be “healing”. Additionally, if someone hears friends, acquaintances or even relatives voicing any stereotypes or misinformation about Asian Americans, they can speak up and help correct the misconception. Such acts can help prevent future suffering.