Free Speech

Justice Breyer's opinion in the FUCT Trademark Case and the Neurology of Language

|The Volokh Conspiracy |

Penn Linguistics Prof. Mark Liberman has an interesting Language Log post expressing doubt about one aspect of Justice Breyer's approach in his Iancu v. Brunetti dissent. Here's an excerpt from the opening:

Justice Stephen Breyer's opinion, "concurring in part and dissenting in part", cites neurological evidence for what might be a constitutionally defensible form of "linguistic regulation" [emphasis added]:

"[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. See M. Mohr, Holy S***: A Brief History of Swearing 252 (2013) (Mohr) (noting the 'emotional impact' of certain profane words that 'excite the lower-brain circuitry responsible for emotion,' resulting in 'electrical impulses that can be measured in the skin'). These vulgar words originate in a different part of our brains than most other words. Id., at 250. And these types of swear words tend to attract more attention and are harder to forget than other words." …

Mohr indeed tells us on p. 250 that

"Scientists have found that swearing most likely originates in the right hemisphere of the brain, and within that half, in the 'primitive' part of the brain, the limbic system. The right half of the brain [which] is responsible for nonpropositional or automatic speech, which includes greetings, conventional expressions such as 'not at all,' counting, song lyrics, and swearwords. Propositional speech—words strung together in syntactically correct forms to create an original meaning—occurs in the left hemisphere."

But the evidence for this conclusion is weak, in my opinion. It seems to consist (almost?) entirely in the observation that when the dominant (usually left) hemisphere is out of commission, for whatever reason, the right hemisphere has limited abilities to initiate speech, including some cussing among other things….

This tells us that the non-dominant hemisphere can usually say only a few stereotyped and overlearned things, and those badly. It doesn't tell us that the right hemisphere is in control when someone with an intact brain produces a filled pause like "um", counts to three, or cusses — the fact that the non-dominant hemisphere can cuss doesn't mean that the dominant hemisphere can't.

Click here to read the whole post.

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  1. I’ll have to agree with one of the comments from Prof Liberman’s site. It is disappointing (and dangerous) to see Supreme Court justices citing “scientific” research from “experts” without any understanding of what the research means, or how credible the research is.

    1. Several years back I prognosticated and started warning that the “use government power to

      WTF THIS W3B SITE PLAYS SOUND VIDEO ADS YOU CANNOT SIL3NCE NOW?!?!?

      Anyhoo, I warned “bad feelings”, used to silence people in civil actions by way of government threats to businesses and colleges would attempt to escape into the wild as criminal speech by way of brain scans-as-damage, bypassing the amendment process, already outrageously dangerous when said in the same sentence as the First Amendment.

      Don’t do it. The purpose of speech is to change behaviors in the listener, which, per physics and biology, means changes in the neural connections because that’s how brains work.

      Don’t do it.

      1. As for video “talkies” you can’t pause or silence, is this new here? I just switched this morning to an “unlimited” plan, and I’m wondering if Verizon are scurrilous dogs accepting payments from ad services for notifying them of subscribers who no longer have data caps, and so have at them, have free reign to push gigabytes of unstoppable ad video on the saps now.

        Or maybe it is just a coincidence

        1. “Here at Reason we are constantly working on ways to make your experience on our site more irritating. If you have any concerns, please call our complaints department at 1-800-EAT-S***.”

    2. Breyer is a prude. I can cite numerous First Amendment cases where he has broken with liberals in favor of prudishness.

      The problem is that the First Amendment, properly interpreted, leaves no room for prudishness, even with psuedo-scientific backing. The Court should take the plunge, repudiate Breyer, and simply hold that the f-word is fully protected First Amendment speech in any situation where a synonymous word would be. A Supreme Court justice’s personal dislike of a word is an awful reason for censorship.

  2. My copy of the constitution doesn’t say anything about free speech for speech originating in some parts of the brain but not others.

    1. Right. Speech varies from the emotional to the rational, from the artistic to the scientific, from the vulgar to the sublime. All are protected by the First Amendment. That they might originate from different parts of the brain (assuming this is not junk science) makes no legal difference.

      1. Agree and am not sure why Justice Breyer including it because it kind of veers off-topic.

        What difference (legal or otherwise) does it make which part of our brain speech originates from?

        Obviously from a linguistic/neurological aspect this is a key issue (e.g. speech impediments due to aphasia, etc.), but not from a legal aspect.

    2. but when my phone is smart-wired into my brain, and the speech is originating in the electronic cortex, is it still protected? Or should I be protected from it?

  3. You get this with abortion too, with conservative judges citing “research” showing how much women suffer mentally from having abortions, arguing that it is therefore OK to limit access to abortion.

  4. Including this argument is not a casual slip of the pen for Breyer.

    A lot of the argument for regulating “hate speech” is based on the idea that such speech is not only offensive, it imposes a physical harm on the listener of the speech. Since the courts have regularly (and IMO correctly) ruled that true threats or violence are not protected speech, if hate speech really does cause violence then it is not protected under the 1st Amendment.

    Now that this ridiculous argument is in the Supreme Court record the door has been opened for this pseudoscientific garbage.

    1. Your comment offends me. 😉

    2. Then you add the purposive interpretation of the 1st amendment, and agnotology. They’ve been constructing a model of how to reason about free speech that excludes speech they disagree with.

      1. Be careful what you wish for on the left. Countdown to weaponization by the right…3…2…1…”Here’s a brain scan of my brain being damaged by the New York law forcing me to call a trans person by their desired pronoun.”

  5. The conclusion should be pretty obvious, since Mohr didn’t come up with the title to his article’s title using only the “primitive” part of his brain.

    Supreme Court junk science should get fuct

    1. Her article. M is for Melissa. And she has a “PhD from Stanford University in Medieval and Renaissance English Literature,” so how could a Supreme Court justice possibly go wrong in relying on her summary of the scientific studies on something as complex as the human brain.

      1. 3/4ths of the literature from that period is triggering and, presumably, therefore damaging to the brain.

        How in god’s name did she survive her studies?

        1. I think you’re being too hard on her. We’re reading Breyer’s paraphrases of cherry picked passages of her book. She wrote a book about swearing that has been likened to Hooters–delightfully tacky yet unrefined–and she highlights that in her bio. She doesn’t seem like a wilting flower, aghast at the coarse language of ruffians, to me.

  6. Verbal pollution is as bad (worse?) than air pollution. In both, we should trade off cost against benefit. This is particularly so when bad language is used merely to offend, and would not have been used except to inflict disutility on others.

    1. We can ask an atmospheric scientist what is an air pollutant.
      From whom do we seek a definition of a “verbal pollutant”?

    2. Agreed. However given the extensive history of governmental abuse through, well, all of history, any enforcement against verbal pollution should be carried out through purely social controls such as norms about manners and very explicitly not enforced by the government.

      Just because something is bad does not mean that it’s the government’s job to fix it.

  7. What’s happened to time, place, and manner? Speech is heavily regulated. Obscenity is an aspect of manner.

    1. No, obscenity is an aspect of manners, not manner.

      1. Also, this isn’t obscenity; it’s profanity. Distinct concepts.

    2. “Manner” is a synonym for “mode”, and refers to things like, signs, bullhorns, physical gestures; not content.

  8. Breyer is precisely the sort of progressive justice who would have cited “science” to say that “three generations of imbeciles are enough.”

  9. “See M. Mohr, Holy S***:”

    “To avoid exciting those electrical impulses, Justice Breyer adds two additional asterisks to the title of Melissa Mohr’s book, which OUP renders with one asterisk as Holy Sh*t: A Brief History of Swearing.”

    I wonder if “S***” originates in a different part of the brain than “Sh*t”, or “Shit”?

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