Bad Words

Jacob Sullum from the August/September 1994 issue

(Page 2 of 2)

Furthermore, Ehrlich is even quicker to cry racism than Walker is. In a follow-up report published in 1992, he says "the role of right-wing and highly conservative organizations has been a somewhat understated dimension of campus ethnoviolence." In this section he lumps together the centrist National Association of Scholars and the conservative Madison Center for Educational Affairs with the White Student Union. "These organizations function (sociologically) to provide the intellectual and moral justification for social inequalities," he explains. "They promote values of individualism, meritocracy, and hierarchy that are essentially elitist." Thus Ehrlich believes that the sinister forces of individualism and meritocracy encourage ethnoviolence.

At this point you may be wondering what, exactly, Ehrlich means by "ethnoviolence." It isn't what you might think. He writes: "There is, in law and folkways, a distinction between physical violence and psychological violence. The Institute makes no such distinction and, in fact, regards it as a conceptual error. Harassment and intimidation are generally motivated by an intent to inflict psychological injury. Further, such injury may have longer-lasting consequences for the victim than a physical assault. Accordingly, the definition of violence used here includes such verbal and interpersonal acts as harassment, ridicule, threats, insult and ethnic slurs."

The trick of transforming speech into "verbal acts" of "psychological violence" is the subject of Franklyn S. Haiman's book. "Speech Acts" and the First Amendment is a sharply focused rebuke of the idea that certain kinds of speech are not really speech and therefore fall outside the scope of the First Amendment. Haiman, a professor of communication studies at Northwestern University and a vice president of the ACLU, recognizes that this sort of reasoning threatens the distinction between word and deed that underlies the liberal tolerance for diversity of opinion. "Speech is not the same as action," he writes, "and if it were, we would have to scrap the First Amendment." He carefully dissects the major rationales for treating offensive speech like a crime or tort.

Haiman writes: "What has converted speech into a speech act for those who choose to define it that way--be it fighting words, obscenity, racist slurs, orders, or threats--are the ideas or meanings that have been communicated to persons who understand them. One can call it an act if one wishes to--as Humpty Dumpty in Through the Looking Glass observed, you can name anything whatever you want to--but it is essentially a symbolic, not a physical, transaction. And though it is true that symbols can, and commonly do, arouse physiological as well as mental responses in their audience, the mental response comes first and mediates what follows. Without a response of the mind, nothing follows, for nothing has been comprehended."

Haiman therefore rejects the idea of "situation-altering utterances" (such as orders or promises), noting that something beyond mere words--at the very least, the listener's interpretation--is always required for the utterance to have an effect. Similarly, he observes that the impact of fighting words and incitement hinges on the reactions of the people to whom they are addressed. The target of a racial epithet has to understand the message and decide how to respond--whether with silence, a rejoinder, or a fist. The same is true of a rabble-rouser's audience. When a conscious mind intervenes between speech and action, nothing is inevitable.

In his chapters on hate speech and sexist speech, Haiman criticizes the analytical sloppiness of theorists who confuse metaphor (hearing an epithet "is like receiving a slap on the face," watching pornography is like "the sex act itself") with reality. And he notes the danger of punishing people for inflicting emotional distress, which can never be verified or measured: It is literally all in the victim's mind.

Nevertheless, Haiman tries to rescue the concept of "hostile environment" sexual harassment, which often hinges on how speech makes an employee feel. And although he recognizes the free-speech issues raised by laws that punish crimes more severely when they are motivated by bigotry, he concludes that "the dan-gers that hate crimes pose to society" outweigh "the relatively minimal intrusions into the First Amendment arena that a carefully drafted enhanced-penalty law may entail."

Haiman's conclusions about sexual harassment and hate-crime laws illustrate a basic problem with his view of free-speech rights. "I do not claim that because freedom of speech is implicated it will necessarily prevail over all other possible competing interests," he writes. "Some symbolic behavior may be so harmful that we are justified in restraining it, but not because a court or legal theorist has labeled it a speech act entirely beyond the purview of the First Amendment."

Thus Haiman would follow the Supreme Court's usual approach of "weighing" freedom of speech against other factors. But this sort of calculus opens the door to all manner of arbitrary preferences and evaluations. Indeed, hate-speech censors could very well concede that bigoted expression "implicates" the First Amendment but argue that it is "so harmful that we are justified in restraining it." Admittedly, it is harder to ban speech when justification is required. But given what has passed for justification in the areas of obscenity and commercial speech, that barrier can be easily overcome.

In Kindly Inquisitors, Jonathan Rauch weighs in on the positive side of the cost-benefit analysis that Haiman would apply to speech. Rauch, a contributing editor at National Journal, offers an eloquent elaboration of Mill's argument that the pursuit of knowledge depends on free speech. The "liberal social system for sorting truth from falsehood," he writes, rests on the principle that the "checking of each by each through public criticism is the only legitimate way to decide who is right." That principle of "liberal science," the basis of Western intellectual progress since the Enlightenment, is today threatened by egalitarians who consider it elitist and humanitarians who consider it cruel.

Rauch concedes much of what the egalitarians and humanitarians have to say. Liberal science does indeed exclude certain people (those who refuse to play by the rules), and it does indeed hurt people's feelings (by rejecting their ideas). But he argues that any attempt to avoid those consequences would destroy the best system human beings have ever come up with for generating knowledge. "Let us be frank, once and for all," he writes. "Creating knowledge is painful, for the same reason that it can often be
exhilarating. Knowledge does not come free to any of us; we have to suffer for it." To the people who are offended or feel left out, he says: "Too bad. You'll live."

Like Haiman, Rauch firmly resists the sophistry of those who decry "verbal violence," such as the University of Michigan law professor who said, "To me, racial epithets are not speech. They are bullets." Rauch writes: "My own view is that words are words and bullets are bullets, and that it is important to keep this straight. For you do not have to be Kant to see what comes after `offensive words are bullets': if you hurt me with words, I reply with bullets, and the exchange is even."

Rauch is good at anticipating his opponents' counter-arguments, and he responds to them at length. He frequently returns to the same point: No centralized authority can reliably distinguish between the sort of speech that is useful, and therefore should be allowed, and the sort of speech that only causes anguish, and therefore should be banned. Knowledge making has to be left to the scattered judgments of many minds, the "checking of each by each," with the understanding that "no one has personal authority" and "no one gets the final say."

As Rauch acknowledges, liberal science has much in common with a market economy. Both are forms of spontaneous order in which the participants follow certain basic rules but no one dictates the outcome. Both are defined by process rather than results. But there is more than an analogy here. The basic rules of a market economy, established by property rights and contract, make it possible to exercise freedom of speech. They allow me to speak on my telephone, write on my computer, burn my flag, and shout "fire" in my living room. But they forbid me to speak on your telephone, write on your computer, burn your flag, or shout "fire" in your living room, unless I have your permission.

Under a free-speech framework grounded in property and contract, the government may prohibit only speech that violates someone else's rights. That would include the speech involved in acts of fraud ("I swear, it's a Rolex") and extortion ("Give me your wallet, or I will pummel you to death"). It might include defamation and copyright violations, depending upon your view of reputation rights and intellectual property rights. But it certainly would not include hate speech, pornography, sexual harassment, truthful advertising, conspiracy, or incitement.

This approach, familiar to libertarians but foreign to most defenders of the First Amendment, avoids the problem of weighing the costs and benefits of speech on a case-by-case basis. It offers a much-needed principle to distinguish between proscribable and protected speech. It is not perfect, and it may not be the only workable solution. But until civil libertarians address the issue of where free speech ends and why, their response to the censors--however thoughtful and trenchant --will never be completely satisfying.

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