It’s now a crime to be insulting…
Law Professor Says Free Speech in the U.S. Goes Too Far, Wants to Criminalize Causing Hurt Feelings
February 4, 2014
By Terry Firma
Imagine a Christian law professor who doesn’t really like the First Amendment. That is, he wants to “rethink” it so that people who say harsh things about others can be fined or sent to jail. He believes that it’s about time to cut America’s 222-year-old free-speech law down to size, creating new exceptions that go far beyond accepted ones such as slander, libel, and incitement.
In placing limits on speech we privilege physical over emotional harm. Indeed, we have an entire legal system, and an attitude toward speech, that takes its cue from a nursery rhyme: “Stick and stones can break my bones but names can never hurt me.”
The professor says that words can in fact wound deeply. He wants to alleviate the quiet suffering that people of faith, and others, must endure at the hands of columnists and cartoonists and bloggers and internet commenters.
Pain has a shared circuitry in the human brain, and it makes no distinction between being hit in the face and losing face (or having a broken heart) as a result of bereavement, betrayal, social exclusion and grave insult. Emotional distress can, in fact, make the body sick.
So… are you guilty of using language that promoted someone’s “social exclusion”? See you in court. Did you make someone lose face in a public argument? Pay up, bud, or else. After all:
We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious? In the marketplace of ideas, there is a difference between trying to persuade and trying to injure.
If the professor’s proposal to curtail the First Amendment became reality, anyone could now get sued who says or writes words that even one other person finds offensive to the point of causing “injury.” This blog, and a million others, on all sides of all kinds of issues, would have to start over, under a de facto government directive that none of us may write sharply or mockingly if readers anywhere in the United States’ jurisdiction could take offense.
But… when I wrote, in my opening line, “Imagine a Christian law professor,” I asked you to take a little flight of fancy. I have no idea if Rosenbaum is a believer, and if so, what religion he practices. I inserted that word to get to the nub of the matter, freed of the emotionally charged examples that Rosenbaum gives, and which, in my experience, often receive more sympathy from the left than they deserve.
Rosenbaum, in fact, doesn’t focus on protecting the religious, per se. In his article, he asks if hateful turds like neo-nazis and Fred Phelps should be allowed to speak and demonstrate — and comes down on the side of a gag order.
Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.
I can sympathize with his desire to muzzle heartless bigots. They make my blood boil, too. But tolerating their speech is the price we have to pay for being able to exerciseour own free-speech rights. Judicial erosion doesn’t discriminate. When we censorthem, we end up censoring ourselves.
If Rosenbaum ever gets his way, don’t believe for a second that only members of the Westboro Baptist Church and Hitler-lovin’ skinheads will be affected. A law whose goal is to not have people’s sensibilities “trampled upon” is the gift of a lifetime to professional Catholic crybaby Bill Donohue.
It will also be very, very popular with hairtrigger-sensitive Muslims who have been itching for a chance to silence critics like Ayaan Hirsi Ali, Salman Rushdie, andMolly Norris. In fact, the professor’s language in that last passage I quoted is indistinguishable from the kind of flummery pushed by the Organization of Islamic Cooperation, a bloc of more than 50 Islamic nations whose chief mission seems to be to pressure Western countries into adopting laws that ban “negative stereotyping of Islam.”
In Rosenbaum’s ideal America, the Friendly Atheist would have to turn into the Really Totally Affable and Thumbs-Up-to-Everyone Agnostic.
Christopher Hitchens‘ books? Bill Maher‘s philippics? Pushed underground.
Maureen Dowd, Mark Steyn, The Daily Show, The Simpsons, South Park, Greg Gutfeld, Stephen Colbert, Michael Moore, Jesus and Mo, the Onion? Gone or neutered.
And so on.
I had no idea you could be a halfway respectable U.S. law professor while pushing for America to be more like Bangladesh or China. But here we are.
The fantastic law blog Popehat has Rosenbaum’s number:
In my series “A Year of Blasphemy,” I have examined worldwide blasphemy prosecutions over two years to demonstrate that the norms these academics [? la Rosenbaum] would have us adopt are typically used to oppress religious minorities [apostates and atheists included] and the powerless under the thin guise of solicitude for feelings. …
Read Professor Rosenbaum’s closing [“Free speech should not stand in the way of common decency”], and contemplate how his approach to speech would be used by any government we have ever known.
Defense attorney and civil-liberties champion Scott H. Greenfield also penned a well-deserved takedown:
We “privilege” physical over emotional harm because one is real and undeniable as there are actual, objectively provable, manifestations of harm, while the other is a product of individual sensitivity and only shown by subjective claims. …
The current cultural elevation of hurt feelings to physical harm status … presents a disastrous crossroads. I’m Jewish, and was raised in the post-World War II culture of “never again.” I share the sensitivity toward facile Nazi comparisons and won’t let it happen here. … Anyone seeking to make the point has to work harder than just invoking Godwin’s Law.
But this is a crossroads, Thane. We can strengthen both our spirit and resolve, as well as honoring the American ideal of free speech, by bolstering people’s strength to ignore and overcome hurt feelings rather than enable them to wallow in their misery. We teach children — hence the nursery rhyme — not to let mean words hurt their feelings. This makes them stronger. You make them weaker.
To criminalize words that hurt is to allow the people with the thinnest skins to set the boundaries of respectable speech. I won’t go down that road willingly.
Philosophically, as an immigrant, the main thing that attracted me to the United States is how robustly free speech has been protected on these shores — and how government incursions against it, which do occur, are ultimately beaten back through successive courts in a process that I find to be unmatched elsewhere. Shutting people up by government force is un-American, and against the highest law of the land.
Long may it stay that way.
The jailing of two trolls: it’s now a crime to be insulting
25 JANUARY 2014
Of course people must be free to be insulting.’ That is what the feminist Caroline Criado-Perez said in a radio debate with me last year. I was expressing my concern that her campaign against Twitter trolls, who had been sending her and other media women horrible sexist tweets, would end up making it a crime to be insulting, crude, rude, offensive or hateful. And in my view, it shouldn’t be a crime to be any of those things, because while it might not be big or clever to hate someone, and to say outrageously offensive things about them, it is nonetheless just a thought, an emotion, a form of expression, and the state has no business policing our thoughts or speech. Ms Criado-Perez countered that she wasn’t remotely interested in clamping down on people’s offensive speech or on the right to be insulting – her only concern was with those who issued death or rape threats. ‘The discussion isn’t about people being insulting. Of course people must be free to be insulting. We have to draw a distinction between insults and actually illegal acts: threats’, she said.
Okay – so on what basis were John Sorley and Isabella Nimmo, the two sad, isolated individuals who had charges brought against them for tweeting Ms Criado-Perez and others, yesterday imprisoned for a shocking eight weeks and 12 weeks respectively? Was it simply because they had issued death threats? No, it was also because they had been insulting, because they had dared to write offensively about women in the public eye. As the media reports on their prison sentences make clear, their crimes included sending tweets such as ‘Shut up bitch’ and ‘Dumb blond bitch’. Other tweets that were used as evidence in court and which contributed to their receiving months-long custodial sentences include, ‘Go die’ and ‘Fuck off and die’. Those are clearly not death threats; they are expressions of a very strong opinion. ‘Fuck off and die’ is a phrase that people use every day. Yet now, thanks to the decision of this court, uttering it is a potentially imprisonable offence.
The judge at Westminster Magistrates’ Court, where the case was heard, clearly accepted that Sorley and Nimmo should be punished for being insulting. In his judgement, in which he found them guilty under the Communications Act 2003 of sending tweets that were ‘menacing in character’, he mentioned the 10 tweets that Mr Nimmo was going to be imprisoned for sending. These included a tweet saying ‘Dumb blond bitch’. So a man is in prison this morning in part for calling someone a ‘bitch’. Free to be insulting? Not anymore, we aren’t. The judge also listed the 16 tweets that Ms Sorley was being sent to jail for sending, and they include the comments ‘Go die’, ‘Fuck off and die’ and ‘You should have jumped in front of horses’. Everyday speech, everyday insults, everyday expressions of angst or just ironical anger against someone who is pissing you off, have overnight been turned into something you can be imprisoned for uttering.
But what about the death threats that Ms Sorley and Mr Nimmo also sent? Well, anyone with two brain cells to rub together can see that these were not even remotely serious threats. Alongside saying ‘Dumb blond bitch’ (lock him up!), Mr Nimmo also tweeted, ‘Rape her nice ass’, ‘Could I help with that LOL’, ‘The things I cud do to you’ and ‘I will find you’. That is the extent of his so-called threats of violence. The first thing to point out is that the most offensive tweet here – ‘Rape her nice ass’ – is not a threat; it is not saying ‘I will rape her nice ass’, but simply that someone should. It is a completely vague and, yes, warped expression of disdain for an individual, not a threat of rape. The other tweets, one of which is even offset with the term ‘LOL’, make no mention of acts of violence, far less where or how such acts might occur. They are not real threats; they are merely an extension of Mr Nimmo’s feeling of anger and dislike for Ms Criado-Perez.
Ms Sorley’s threatening tweets including things like, ‘Kill yourself before I do’ and ‘I’ve just got out of prison and would happily do more time to see you berried [sic]’. Again, these are very clearly infantile gestures, empty bravado, extensions of Ms Sorley’s already expressed disgust for Ms Criado-Perez, not serious threats. If you read the judge’s summing up when he imprisoned Sorley and Nimmo, and the subsequent media coverage of their jailing, it is very clear that fundamentally they have been jailed not for making specific or meaningful threats of violence that had a possibility of being carried out, but for banging out insulting and offensive and outrageous tweets. They have been jailed, not because they are considered a serious physical threat to people, but because they wrote horrible, rotten, shocking things online – in short, because they were insulting.
So while you might not care very much for Ms Sorley, who allegedly has problems with alcohol and her behaviour, or Mr Nimmo, who is described as an unemployed ‘social recluse’, you should be very worried about the implications of this case. Two people have been jailed for being insulting, for saying ‘bitch’, ‘dumb’, ‘shut up’, ‘fuck off and die’, among other, more outrageous things. This case represents another step towards the moral policing of the internet by well-connected activists and their newfound friends in the police and the court system. Thought and speech have been further curtailed by this case and the dangerous precedent it has set. The police, of course, are cock-a-hoop, appearing across the media this morning to tell us all that the case serves as a warning to us all to check what we say online and how we say it. I would tell these coppers who long to control what we think and express to ‘Fuck off and die’ – but I don’t want to be arrested
Scotland Speech Ban: No more muffin tops or cankles: Minister calls for ban on “fat talk” used to shame women over their bodies. Has called for a ban on terms such as “thunder thighs” from conversation. The equalities minister said: ‘It’s depressingly commonplace to hear women – and even young girls and children – insulting their own bodies. Hunger Games star Jennifer Lawrence last week called for the word fat to be “illegal to use” on television.