The release of that viral street harassment video last week prompted all kinds of interesting reactions: some took the strong this-is-awful-and-must-stop position, some agreed street harassment was bad but not everything in the video qualified, others criticized the problematic racial aspects of the video, while still others wondered what was so wrong with black and Latino men giving compliments to women on the street.
As a libertarian, I had nothing special to say about the video at first—harassment is bad, leave people alone, etc.— but then the conversation took a predictable turn. Should the government ban catcalling and police street harassment more aggressively? Some people think so. The New York Times featured a discussion on the topic. Here was the opinion of one legal scholar, Northwestern University's Laura Beth Nielsen:
The police may largely ignore harassment on the street because men often do not understand how pervasive it can be, but most importantly because there are no laws being violated in such encounters. About two thirds of women report that they hear such comments every day, but men's estimates of the frequency of such remarks is significantly lower. All of the women I interviewed for my researchreported changing their routes, behavior, transportation or dress to avoid street harassment.
I'd propose a law that would prohibit street harassment and would also be consistent with our First Amendment jurisprudence about other kinds of hate speech (cross-burning in Virginia vs. Black) that intimidates, harasses and perpetuates inequality. It would allow states and cities to recognize street harassment for what it is: physical and psychological acts that intimidate, exclude, subordinate and reinforce male dominance over women.
Empower the government to arrest people for giving unsolicited greetings in public? Egads, what a terrible idea! (It's as if Nielsen was cognizant of the fact that libertarians were feeling left out of this discussion and wanted to find a way to include us. That's nice of her, wrong though her opinion is.) New York City cops certainly don't need another reason to arrest black and Latino men on the streets, for one thing. For another, trusting agents of the state to correctly distinguish between protected and unprotected speech is a tall order in the most favorable of circumstances, and would only get worse if a broad new category of speech was outlawed—to say nothing of the unlikelihood of such a law passing a First Amendment test.
"Street Harassment Shouldn't Be a Crime," agreed Lizzie Crocker of The Daily Beast. Crocker chided Hollaback!, the organization behind the video, for supporting efforts to legislatively prohibit such behavior and claimed that "according to Hollaback's mission statement, the group is interested in modifying the law to punish offenders (and raising significant First Amendment concerns)."
I pored over Hollaback!'s website looking for evidence of this claim and was prepared to skewer the group for pushing a pro-censorship and pro-criminalization agenda. Alas, I found nothing of the sort. Hollaback!'s strategy revolves around building a public awareness campaign to shame street harassers into changing their ways. The group does not specifically call for any sort of legislative action, as far as I can tell.
To clarify the matter, I reached out to Emily May, co-founder and executive director of Hollaback! She forwarded me a column written by the group's deputy director, Debjani Roy, about "Finding Effective Solutions to Street Harassment":
When it comes to combating street harassment, increasing criminalization is not the answer.
The criminal justice system disproportionately targets and affects low-income communities and communities of color, as evidenced by more recent policies such as New York City's Stop and Frisk program and other degrading forms of racial profiling. Our objective is to address and shift cultural and social dialogues and attitudes of patriarchy that purport street harassment as simply the price you pay for being a woman or being LBGTQ. It is not to re-victimize men already discriminated against by the system.
So there you have it. Hollaback!—the organization behind the viral street harassment video and primary activist group fixated on this issue—does not support criminalization as an answer to the problem. No one else should, either.