Saving Free Speech From Itself, by Thane Rosenbaum. Fig Tree Books; 305 pages, Hardbound. US$24.95
With some trepidation and the dissent of men like James Madison and Alexander Hamilton, the founders of the United States included in its Constitution a guarantee of free speech unlike any other in the world. The First Amendment bars restrictions on public expression. That does not include speech or writing that amounts to an act of violence.
Justice Oliver Wendell Holmes set the standard for prohibited speech with the celebrated dictum that one does not have the right to shout “fire” in a crowded theater. The case in question was Schenck vs. United States, in which the court ruled that a defendant did not have the right to oppose mandatory conscription during the First World War. That shows how difficult it is to define violent speech: By today’s standards, verbal opposition to a government’s policy in wartime surely would be protected.
For the past 80 years, the Supreme Court’s ruling in Chaplinsky vs. New Hampshire has defined prohibited speech as “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
That standard is in shambles today. Talking heads on television routinely employ terms of opprobrium that a generation ago would qualify as libel; rappers have brought extreme forms of profanity into mainstream pop culture; and pornography is ubiquitous. Meanwhile seemingly harmless phrases such as “people who work hard in America get ahead in life” are banned by university speech codes, supposedly because they imply that minorities who don’t get ahead in life are lazy, and so forth.
The constitutional scholar Hadley Arkes opines, “The test in the old Chaplinsky case was clear enough to the man on the street, unburdened by a legal education: Whether he was a construction worker or a lawyer, would he recognize, when he heard them, words or gestures that demeaned and insulted?”
But I do not think that Arkes’s criteria apply any longer. A large part of the US population, although not a majority, hears “microagression” in what to others seem like harmless statements. The collapse of a cultural consensus has turned us all into hypocrites. We maneuver around the minefield of easily-detonated resentments as best we can.
Thane Rosenbaum, a distinguished law professor and prolific writer, proposes to set limits to free speech in order to protect it. The matter is a minefield, and he wades into it fearlessly. But I am not convinced that he has found a solution.
In general his approach follows the Chaplinsky approach but with important qualifications. “There are limits to the First Amendment,” he writes, “categories of proscribed speech – ‘fighting words,’ libel and slander, ‘the incitement of imminent lawlessness,’ intimidation and ‘true threats’ – that are essentially deemed as non-speech and therefore are outside the operation of the First Amendment.”
Rosenbaum likes the European and Canadian approach, which seeks to protect dignity and privacy. Civil law, he observes, regards emotional damage from slander as more serious than physical damage. In some cases that has applied to criminal law as well
Rosenbaum cites a Texas case in which a restaurant manager publicly humiliated a black diner. The manager was found guilty of battery, because “personal indignity is the essence of an action for battery, and consequently, the defendant is liable not only for contacts wich do actual physical harm, but also for those which are offensive and insulting.”
Why, Rosenbaum asks, should the Klu Klux Klan have the right to threaten black Americans who already suffered the trauma of slavery and subsequent racist discrimination? Why should Nazis have the right to brandish swastikas at Holocaust survivors? Why should Arab activists at universities have the right to cal for the murder of Jews? Why should “gay bashers” have the right to humiliate homosexuals?
“Given that there was once slavery in this country and a civil war had to be fought in order to end it,” he writes, surely the Klan cannot be granted a pulpit to antagonize and re-traumatize African-Americans.”
The difficulty with this position, Rosenbaum concedes, is that humiliation is subjective. But he believes that science can assist the law. “On the weaponization of words,” he argues, “the law has woefully lagged behind the neurosciences – specifically neuroscience and cognitive psychology – which have proven the existence of psychological injury that is both real and verifiable.”
Some studies show, ” through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that psychological harm is equal in intensity to that experienced by the body and is even more long-lasting and traumatic.”
The fact that emotional pain has physical manifestations, though, does not make it any less subjective. The truth may be even more painful than a malicious lie. The proverb, “Don’t mention the noose in a hanged man’s house” was old when Cervantes put it in the mouth of Sancho Panza in the first book of Don Quixote.
What the great French sociologist Emil Durkheim called “anomic suicide” is the Great Plague of our times. Self-destructive behavior in the form of opioid addiction, alcoholism, violent behavior is destroying the lives of large parts of the US population. Sometimes the pain is too great to bear.
In 2014, 18-year-old Michael Brown, Jr., charged a policeman in Ferguson, Missouri after committing a petty theft. The policeman shot the 200-pound black man. There ensued two years of demonstrations and a few riots over the shooting, which an investigation by the Obama Justice Department showed to be entirely lawful.
Michael Brown effectively committed suicide by cop, and the horror of it was too great for black Americans to tolerate. So many young black lives are destroyed that many black Americans refused to accept yet another instance of self-destruction.
Due to incarceration and high death rates in the United States (including by homicide), there are only 83 black men between the age of 25 and 54 for every 100 black women not in jail. Because so few black men graduate from university, the chances of a black female college graduate marrying a black male college graduate are extremely low.
Black marriage rates are much lower than white or Hispanic marriage rates. The US National Institutes of Health wrote in 2015, “In 2014, 70 percent of non-Hispanic white children (ages 0–18) and roughly 59 percent of Hispanic children were living with both of their biological parents. The same was true for only a little more than one-third of black children.”
Marriage rates are declining for all parts of the US population, but much faster for blacks. In 1960 90% of white women and 87% of black women aged 18-59 years had been married at some point in their lives; by 2016 the proportion had fallen to 60% for white women and just 33% for black women.
More than three-quarters of a century have passed since the Civil Rights Act of 1964 created a vast public apparatus to suppress discrimination against blacks. Yet by some measures the social position of blacks has deteriorated. In 1965, 25% of black children were born out of wedlock; by 2015 the proportion had risen to 77%.
The despair and rage of American blacks is palpable, and understandable. Part of the reason for despair is that black hopes for social and educational advancement have been disappointed. I examined the problem in a 2015 essay for PJ Media (“The Witches of the Ivy League”).
Only 34% of black male college students graduate within six years after matriculation. The college entrance rate is identical for white and black high school graduates at about 70%, but 60% of white male students graduate within six years, almost double the proportion of black males. Black women graduate at a 43% rate.
This is a tragic state of affairs, and it has no end in sight. A large proportion of black Americans (and a majority of university faculty and students) think it humiliating to blame anything except racism for this outcome.
A 2017 study by two professors from California’s Humboldt State University declares: “Since black males have the highest attrition rate of any college demographic, racist experiences at predominantly white institutions may be especially detrimental to the academic success of these men.” The Humboldt State report cites half a dozen other studies with the same conclusion.
The study interviewed black students who mentioned examples of “microagressions” such as: “We have never been around a black person this friendly,” or “I could hang with you, you are not intimidating to me,” or “What radio stations do y’all listen to?” These evidently were well-intended if socially inept statements, and were interpreted as aggressive.
The study quoted yet another black student who said, “It has not happened to me, yet I know [racism] still exists here.” In other words, this student has not experienced any “microagression” (let alone garden-variety aggression) but is still intimidated by the fear of microagression. There simply is no response to this kind of mindset.
By contrast, a 2006 study in The Journal of Blacks in Higher Education commented, “High dropout rates appear to be primarily caused by inferior K-12 preparation and an absence of a family college tradition, conditions that apply to a very large percentage of today’s college-bound African Americans.”
That seems like a reasonable assessment. But at most American universities, merely to repeat this statement – printed originally in a journal published by black educators – would today be considered prima facie proof of racism.
When harmless (if mildy insensitive) utterances are blamed for low black graduation rates, the threshold for injurious speech has become impossibly low. Lurking in the background is the explosive question of racial differences in intelligence.
In 1994, Charles Murray and Richard Herrnstein published The Bell Curve: Intelligence and Class Structure in American Life. Using standardized IQ testing data, they argued that 40% to 80% of intelligence is inherited, and observed that blacks score significantly lower than whites or Asians on IQ tests. With many qualifications, their argument boils down to the assertion that the lower socioeconomic status of blacks is due to inherited differences in intelligence.
That made Murray and Herrnstein into instant pariahs. Murray’s appearance on any university campus is a sure cause for mayhem; in 2017, he was attacked by protesters at Middlebury College – as Rosenbaum mentions in his book, but without explaining why Murray elicits such rage.
For the record, I don’t share Murray’s and Herrnstein’s views. My part-time job as a university student involved conducting IQ tests for minority children in a child-development research project, and the experience convinced me that IQ data are a poor gauge of intelligence.
I have some background in statistics, and I do not believe that the statisticians can reliably assign weights to inherited vs. environmental factors in order to explain the results of standardized examinations. Nonetheless, I believe that social scientists have the right to pursue this line of inquiry and to state their conclusions.
No major US university would permit the Murray-Herrnstein thesis to be taught. To do so would cause a riot. To guarantee the free speech of an academic who wanted to teach such a course, the university campus would require a full police occupation. Black students (and many who sympathize with them) would consider this a violent provocation.
When black men are struggling and failing to earn university degrees, to be told that they are on average less intelligent than their white counterparts must cause great emotional pain. No doubt it would register on a neuroscientist’s brain scan.
Racial differences in intelligence aren’t the only taboo subject. In 1993, the Reverend Calvin Butts, New York’s most prominent black pastor, brought a steamroller to the entrance of SONY Records in Manhattan and crushed a pile of rap CD’s, arguing that rap lyrics cause antisocial behavior in young black men. Make that assertion on any US college campus today and you will be mobbed.
Rosenbaum doesn’t bring up Murray’s research on intelligence. I asked him about it and he answered via email: “Implicit in the book is that ideas, even if offensive or hurtful, are always fair game – especially on a college campus. Murray is presenting an actual idea into a marketplace of ideas. He may be wrong in his conclusions, or his data may inaccurate or misleading, but he can be rebutted. But he is not saying that African-Americans are not entitled to equal rights, or should be attacked, or should be deported. Those are not ideas – those are attacks against fellow human beings and citizens.”
That is entirely reasonable, but it does not quite fit his criteria of emotional injury and offense to dignity. Many black Americans think Murray more hurtful than the Klu Klux Klan – which is a pathetic throwback to a bygone era, whereas Murray is a high-profile academic with a wide readership.
I doubt that Prof. Rosenbaum’s attempt to draw a reasonable line between permissible and impermissible speech will satisfy anyone.
The European criteria for proscribed speech that Prof. Rosenbaum praises have led to outcomes that most Americans will not accept. As Douglas Murray reports in his new book The Madness of Crowds: Gender, Race and Identity, a British court last year ruled that Dr. David Mackereth could be fired as a physician because he believed that “God created mankind in his image — male and female.”
Ruled the court, “Belief in Genesis 1:17 and conscientious objection to transgenderism … are incompatible with human dignity.” Dr. Mackereth was not accused of insulting a particular transgender person, but of holding beliefs that the whole of the Western world held for the past thousand years.
Just what constitutes “Muslim-bashing,” another form of speech Rosenbaum would like to proscribe, is another good question. For example, the great Jewish theologian Franz Rosenzweig wrote in 1919 that Islam is “a parody of revealed religion,” while Allah is an apotheosized despot, “the colorfully contending gods of the pagan pantheon rolled up into one.” No doubt the descrilption is deeply offensive to Muslims. Some European courts would put me in jail if I were to say the same thing.
For example, as Judith Bergmann reported in 2016, “the Pirkanmaa District Court found the Finns Party politician Terhi Kiemunki guilty of ‘slandering and insulting adherents of the Islamic faith’ in a blog post of Uusi Suomi. In it, she claimed that all the terrorists in Europe are Muslims. The Court found that when Kiemunki wrote of a ‘repressive, intolerant and violent religion and culture,’ she meant the Islamic faith.”
Criteria for “fighting words” that would be clear to Hadley Arkes’s man in the street have been lost with the cultural consensus that held the United States together for the first two hundred years after the Declaration of Independence. John Adams famously declared that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
In the absence of a cultural consensus, we are stuck with subjective criteria for hate speech, with such a low threshold for offense that Rosenbaum’s project has little hope of success.