The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Inside State-Run 'Bias-Response Hotlines,' Where Fellow Citizens Can Report Your 'Offensive Joke'"
An interesting story by Aaron Sibarium in the Washington Free Beacon. It offers a good deal of fairly concrete detail, always helpful in such analyses.
Such hotlines aren't themselves First Amendment violations, of course, unless they lead to coercive or discriminatory action against constitutionally protected speech, or at least the threat of such action. Even if they create something of a chilling effect on some people who don't want to get reported (or don't want to get reported again), that by itself isn't enough to violate the First Amendment.
Still, they do create possibilities for abuse, for instance if the resulting data is indeed at some point used to threaten the accused speakers (or deny them jobs or other opportunities). And I think they tend to create unrealistic expectations: After all, if the state says it wants you to report certain behavior, and tells you that it's bad behavior and that you're the victim of such bad behavior, wouldn't you expect that the state will actually try to do something about it?
Then when the state doesn't do anything, you might well feel let down: "Why isn't the state protecting me from this thing that it views as so bad?" Indeed, by framing certain incidents as bad enough to call for government response lines and then doing nothing about those incidents, the state may be exacerbating the initial offense that the callers felt at the incident, rather than ameliorating it.
And it might promote further reactions, such as litigation seeking restraining orders (even when that litigation ultimately goes nowhere, because the speech is constitutionally protected). After all, once authoritative institutions tell you that someone isn't just offending you or being a jerk, but violating (or at least jeopardizing) your civil rights, what kind of chump are you for doing nothing about that behavior?
To be sure, public reporting of suspicious or potentially criminal behavior can be good, even if the reports sometimes come to nothing. If I report that my neighbor's children have bruises, it might just stem from their having fallen while playing or it might stem from their having been beaten. It makes sense to have specialists investigate that, even if of course sometimes they too can make errors (and the investigation itself can feel intrusive to people who are wrongly suspected). I'm no fan of anti-"snitching" rhetoric that suggests that it's bad for people to report even genuinely criminal, or genuinely suspicious, behavior.
Likewise, if I report that someone is talking about how he wants to shoot up some sort of place, it's possible that I misunderstood a joke as something serious, and it's possible that the statement is too general to be a criminally punishable threat. But it's also possible that the person is indeed planning a very serious crime, and it's good to prevent that rather than to wait until it takes place.
But here I think the express call for reporting speech simply because of the viewpoint it expresses, not as part of an investigation of a possible crime or of an intention to commit a crime, strikes me as unsound and dangerous. Again, it's not itself unconstitutional, but it's also not something that I think our government ought to be doing.
