Speech, harm, and the mind-body problem in first amendment jurisprudence

Legal Theory

Volumn 4, Issue 1, 1998, Pages 39-61

  Brison, Susan J ^a  

^a DARTMOUTH COLLEGE   (United States)

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EID: 85022383197     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000914     Document Type: Article

References (72)

1. Paul Schenck and Dwight Saunders, Petitioners v. Pro-Choice Network of Western New York, et al. No. 95-1065. United States Supreme Court Official Transcript Wednesday, October 16, 1996. 1996 LW 608239 (U.S.OralArg.), at 23. Although it is the policy of the Supreme Court not to identify which justice poses which questions, since they are ostensibly posed by the Court as a whole, the context often makes clear who the questioner is. And, where it does not, reporters, such as National Public Radio's Nina Totenberg, sometimes give the questioner's name, finding this information newsworthy because it can indicate the way in which a justice may be inclined to vote on a case. In the above exchange, Totenberg quoted Scalia as making the first statement, and the transcript clearly indicates that Breyer made the last statement, and it is a matter of speculation which justices made the statements in between.
2. Joshua Cohen, Freedom of Expression, 22 PHIL. PUB. AFF. 207-63 (1993).
3. I do not address here the question of indirect injury in which a speaker says something to a listener who, as a result, harms a third party. This kind of harm is discussed insightfully in Frederick Schauer, The Phenomenology of Speech and Harm, 103 ETHICS, 642-46 (1993).
4. For overviews of recent work in philosophy of mind, see David M. Rosenthal, ed., THE NATURE OF MIND (1991), and Richard Warner & Tadeusz Szubka, eds., THE MIND-BODY PROBLEM: A GUIDE TO THE CURRENT DEBATE (1994).
5. I acknowledge that this characterization of Scalia's interpretation of the First Amendment is not exactly fair, as it is based on an impromptu comment made during oral arguments, possibly even in the guise of devil's advocate. His position in R.A.V. v. St. Paul, 120 L.Ed.2d, 305 (1992), is certainly more sophisticated, although, even there, he underestimates the differential harm inflicted on victims of, for example, racist “fighting words” as opposed to other kinds.
6. John Stuart Mill, ON LIBERTY 9 (1978).
7. Frederick Schauer, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 7-8 (1982). To state what a free-speech principle requires is not to state that such a principle is justified. In recent writings, Schauer has evinced a certain amount of skepticism about whether a distinct principle of free speech can be defended. In The Phenomenology of Speech and Harm, ON LIBERTY note 3, for example, he notes that his conclusion, viz. that we should reject the hypothesis that speech, as a class, causes less harm than nonspeech conduct, “puts more pressure on the positive arguments for a free speech principle, and perhaps no such argument will turn out to be sound,” at 653. For insightful arguments against the existence of any justifiable general principle of free speech, see Lawrence Alexander & Paul Horton, The Impossibility of a Free Speech Principle, 78 Nw. U. L. REV. 1319-57 (1983) and Stanley Fish, THERE'S NO SUCH THING AS FREE SPEECH-AND Irs A GOOD THING, TOO (1994).
8. This view is defended by, among others, Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. PUB. AFF. 204,204-26, (1972).
9. Mill, A Theory of Freedom of Expression note 6, at 9.
10. An immunization I choose to have may (momentarily) hurt me physically, but it does not constitute a harm if I have chosen to be immunized. And defamatory statements that damage my reputation may harm me even if they cause me no physical or even psychological injury (as in the case in which I don't find out about them). See Joel Feinberg, THE MORAI LIMITS OF THE CRIMINAL LAW: VOLUME I. HARM TO OTHERS (1984).
11. Feinberg, An immunization I choose to have may (momentarily) hurt me physically, but it does not constitute a harm if I have chosen to be immunized. note 11.
12. Feinberg, An immunization I choose to have may (momentarily) hurt me physically, but it does not constitute a harm if I have chosen to be immunized. note note 11, at 37.
13. See id. at 37.
14. This is the term used by Joshua Cohen, See id. at note 2.
15. F.2d 1197 (1978), at 1210.
16. The full proverb, rarely quoted in its entirety, is “Beneath the rule of men entirely great/The pen is mightier than the sword.” Edward George Bulwer-Lytton, Richrtisu, art 2, scene 2, line 307 (1839). Under such a wise and benevolent regime, one can imagine there being no use for swords.
17. Charles R. Lawrence III, If He Hdlen, 1st Him Go, in WORDS TlUT WOCND: CRITICAL Rvi THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT (Man Matsuda ei al. ed$. 1993)
18. U.S. 290.
19. Concurring opinion in Whitney v. California, 274 U.S. 357 (1927), at 377.
20. In Frederick Schauer's terminology, the view that speech either has no costs or else lower costs, as a class, than nonspeech conduct is the “lesser harm hypothesis.” See Schauer, Concurring opinion in Whitney v. California note 3.
21. Schauer, Frederick Schauer's terminology, the view that speech either has no costs or else lower costs, as a class, than nonspeech conduct is the “lesser harm hypothesis. note 3, at 648.
22. For a clinical description of PTSD, see DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3rd ed. rev., 1987).
23. For discussions of such harms, see Susan Brison, Surviving Sexual Violence: A Philosophical Perspective, 24 J. Soc. PHIL. 5-22 (1993);Judith Herman, TRAUMA AND RECOVERY (1992); Ronnie Janoff-Bulman, SHATTERED ASSUMPTIONS: TOWARDS A NEW PSYCHOLOGY OF TRAUMA (1992).
24. For examples, see Matsuda et al., WORDS THAT WOUND, For discussions of such harms note 20.
25. One could give similar analyses of the other characteristics of pain described by Bentham (THE PRINCIPLES OF MORALS AND LEGISLATION): certainty, propinquity, fecundity, and purity. It could be argued, along the lines suggested above, that psychic and physical pains cannot be distinguished along these dimensions either.
26. Schauer, One could give similar analyses of the other characteristics of pain described by Bentham note 3, at 635-53.
27. Mark C. Rutzick, Offensive Language and the Evolution of First Amendment Protection, 9 HARV. C.R.-C. L.L. REV. 7(1974).
28. Id.
29. The Supreme Court used the term “sensibilities” in Street v. New York, asserting that the state had “an interest in protecting the sensibilities of passers-by who might be shocked by appellant's words about the American flag.” 394 U.S. 576, at 591.
30. This is done by connecting a pair of electrodes to the subject's skin and to a polygraph. (See Antonio Damasio, DESCARTES1 ERROR 207 (1994).
31. Rutzick, This is done by connecting a pair of electrodes to the subject's skin and to a polygraph. note 31.
32. In Freedom ofExpression, Joshua Cohen rejects no-cost minimalism because of its denial of the direct and indirect costs of speech. But he does not present arguments intended to persuade those who deny such costs, (This is done by connecting a pair of electrodes to the subject's skin and to a polygraph. note note 2).
33. Robert Post, Managing Deliberation: The Quandary of Democratic Dialogue, 103 ETHICS 654-78 (1993). Post lists an additional kind of harm, which he calls the “intrinsic harm,” or the “elemental wrongness” of hate speech. Such expression, on Post's view, violates the respect for equality that is at the core of the Fourteenth Amendment. I believe this reduces to harm to individuals or harm to groups, since the “respect for equality” is not the sort of thing that can be harmed, given the definition of “harm” I am using.
34. From Matsuda et al., Managing Deliberation: The Quandary of Democratic Dialogue note 20, at 67. The Stanford code was struck down by the California Superior Court of Santa Clara County (in 1995) on the grounds that the code restricted constitutionally protected speech. A California state law known as “the Leonard Law” requires even private educational institutions in California to abide by the U.S. Constitution.
35. This definition of “fighting words” comes from Chaplinsky v. New Hampshire, the 1942 U.S. Supreme Court case upholding the conviction of a Jehovah's Witness for violating a New Hampshire law forbidding any person to address “any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place.”
36. Several arguments against the use of the “fighting words” doctrine in hate-speech codes are (a) the doctrine can be used to provide counter-speakers with a heckler's veto; (b) it presupposes that the only reason for regulation of hate speech is the public interest in preserving the peace, whereas a more compelling reason is to secure the intended victim's right to equal protection; (c) it fails to provide protection to those most vulnerable and least likely to fight back; and (d) it assumes that people can be harmed only by face-to-face insults.
37. Whether of not we consider people able to control their reactions depends, in part, upon normative views about what they ought to be able to do. (See Schauer, Several arguments against the use of the “fighting words” doctrine in hate-speech codes are (a) the doctrine can be used to provide counter-speakers with a heckler's veto; (b) it presupposes that the only reason for regulation of hate speech is the public interest in preserving the peace, whereas a more compelling reason is to secure the intended victim's right to equal protection; (c) it fails to provide protection to those most vulnerable and least likely to fight back; and (d) it assumes that people can be harmed only by face-to-face insults. note 3.)
38. The view that the ability to reason is dependent on having the right degree and kind of emotion is defended in Damasio, Whether of not we consider people able to control their reactions depends note 34, at 52-53, and in Ronald de Sousa, THE RATIONALITY OF EMOTION (1987).
39. See Matsuda et al., The view that the ability to reason is dependent on having the right degree and kind of emotion is defended in Damasio note 20.
40. Jenefer Robinson, 92 Startle,. PHIL. 64 (1995).
41. See Damasio, 92 Startle note 34, at 226.
42. Id., at 224.
43. For more examples of harmful hate speech, see Howard J. Ehrlich, CAMPUS ETHNOVIOLENCE: A RESEARCH REVIEW (1992) and Laura J. Lederer & Richard Delgado, THE PRICE WE PAY: THE CASE AGAINST RACIST SPEECH, HATE PROPAGANDA, AND PORNOGRAPHY (1995).
44. Cohen (For more examples of harmful hate speech note 2) rejects maximalism because of what he perceives to be its sectarian commitment to the value of autonomy. My own view, defended in The Autonomy Defense of Free Speech, 108 ETHICS (Jan. 1998) 312-339, is that no plausible account of autonomy yields a defense of free speech. Here, I approach the issue from a different angle, asking, Why is it assumed (by some theorists, e.g., R. Dworkin, Nagel, and Scanlon) that assaultive speech does not cause harms of the sort that would count as violating someone's right to autonomy?
45. Scanlon, Cohen note 8, at 204-26.
46. Brison, Cohen note 8 note 50.
47. F. Supp. 852 (E.D.Mich. 1989).
48. R2d 323 (1985).
49. Id.
50. Likewise, any indirect injury resulting from the speech is considered to be under the control of, and hence the sole responsibility of, the audience members who choose to act on the basis of the speech. This presupposes, however, an implausible “bucket theory” of responsibility. The term “bucket theory” comes from Robert Nozick, who criticizes such accounts of responsibility in ANARCHY, STATE, AND UTOPIA 130 (1974). It refers to the view that there is only so much responsibility to go around, so if we hold the person who acts on the basis of the speech 100% responsible, we cannot also hold responsible the speaker who incites or in some other way causally contributes to the audience's action.
51. Judith Jarvis Thomson, THE REALM OF RIGHTS 253 (1990).
52. Anthony Ellis, Thomson on Distress, 106 ETHICS (1995) 112-19.
53. See Damasio, Thomson on Distress note 34, at 40.1 thank Ann Bumpus for drawing my attention to this book and to this passage.
54. Dorsen gave this response in the discussion of a paper he presented at New York University in 1988 or 1989 to the New York Group of the Society for Philosophy and Public Affairs. On the view he expressed, just as beauty is in the eye of the beholder, injury is in the psyche of the reader, viewer, or listener. A more defensible view of the “appropriate” response of hate-speech victims is offered by Kent Greenawalt: “As with direct personal threats, it is doubtful whether ‘courageous citizens’ should be expected to swallow such abuse without deep hurt, and it is also doubtful whether being the victim of such abuse contributes to one's hardiness in ways that count positively for a democratic society.” Kent Greenawalt, SPEECH, CRIME, AND THE USES OF LANGUAGE 301 (1989).
55. Lawrence Langer, HOLOCAUST TESTIMONIES: THE RUINS OF MEMORY, 53 (1991).
56. Id. at 102.
57. Cohen v. California, 403 U.S. 15, at 25.
58. Larry Alexander & Paul Horton, The Impossibility of a Free Speech Principle, 78 Nw. U. L. REV. (1984), note that speech “does not denote any particular set of phenomena. Everything, including all human activities, can ‘express’ or ‘communicate’ and an audience can derive meaning from all sorts of human and natural events,” at 1322.
59. Nelson Goodman, WAYS OF WORLDMAKING (1978).
60. This example comes from Cass Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 904-68 (1996).
61. The first-person accounts presented by critical race theorists of the effects of racist hate speech have the potential to change dramatically our understanding of the harm of such speech, just as the testimonies of victims of rape, battering, and sexual harassment have, only recently, altered society's assessment of the harms of such forms of victimization. At the same time, as Martha Minow has pointed out (in Surviving Victim Talk, 40 UCLA L. REV. 1411-45 (1993)), victim talk tends to spawn more victim talk, sometimes on the part of the victimizers, and not all claims to victimization are on a par.
62. See Brison, Herman, Janoff-Bulman, The first-person accounts presented by critical race theorists of the effects of racist hate speech have the potential to change dramatically our understanding of the harm of such speech, just as the testimonies of victims of rape, battering, and sexual harassment have, only recently, altered society's assessment of the harms of such forms of victimization. note 27, as well as Robert Elias, THE POLITICS OF VICTIMIZATION: VICTIMS, VICTIMOLOGY, AND HUMAN RIGHTS (1986).
63. See The first-person accounts presented by critical race theorists of the effects of racist hate speech have the potential to change dramatically our understanding of the harm of such speech, just as the testimonies of victims of rape, battering, and sexual harassment have, only recently, altered society's assessment of the harms of such forms of victimization. note 27 note 68.
64. See R. A. Duff, INTENTION, AGENCY AND CRIMINAL LIABILITY: PHILOSOPHY OF ACTION AND THE CRIMINAL LAW (1990).
65. See Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321-57 (1992), and Diana T. Meyers, Rights in Collision: A Non-Punitive, Compensatory Remedy for Abusive Speech, 14 LAW & PHIL. 203-43 (1995), for discussions of the unequal distribution of such costs and proposals for redistribution of the costs, including compensation for victims.
66. Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, in WORDS THAT WOUND, Uncoupling Free Speech note 20, at 48.
67. My position is that such laws should stand or fall together. I find it odd that, in striking down the Stanford hate-speech code, the court suggested that, as an alternative, “A penalty enhancement scheme along the lines of Mitchell might also be a means of eradicating racism and hate on campus without ‘adding the First Amendment to the Fire'” (quoting Scalia in R.A.V. v St. Paul), Carry u Leland Stanford Junior University, Cal. Sup. Ct. at Santa Clara, case no. 740309, Feb.27,1995.
68. Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First An*ndrnent Theory, CRIM. JUST. ETHICS 39 (Summer/Fall 1992).
69. The policy ruled unconstitutional in Doe u University of Michigan was called the Policy on iscrimination and Discriminatory Harassment of Students in the University Environment in Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First An*ndrnent Theory 852 (ED-Mich. 1989), at 853.
70. 81-Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, in Matsuda etal., The policy ruled unconstitutional in Doe u University of Michigan was called the Policy on iscrimination and Discriminatory Harassment of Students in the University Environment in Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First An*ndrnent Theory 852 note 20, at 61.
71. Id.at 62.
72. Likewise, efforts to eliminate discrimination in the workplace are focusing more on practices of hiring and promotion and less on “diversity training.” As Edward N. Gadsden, a black man who is Texaco's director of diversity puts it: “I am not in the business of attitudinal change. We need to establish a culture that specifies the behaviors you will exhibit.” The strategy being adopted by managers is increasingly becoming that of making “even prejudiced people promote talented women and members of minorities whether they like them or not.” Claudia H. Deutsch, Just Shut Up and Hire, N.Y. TIMES. December 1,1996, “The Week in Review,” at 4.