I've discussed in previous posts (here and here) our phobias about words deemed so omnipotent that they may not be uttered. Generally, advocates of word purges rely on informal political and social pressures rather than unconstitutional legal prohibitions; crusaders against "retarded" and retard" are asking us to pledge our opposition to their use. (Rahm Emanuel has taken the pledge.) But it would be a great mistake to dismiss this campaign as a purely voluntary effort that poses no threat of censorship. Laws aren't forged in cultural vacuums; censorship regimes are enabled if not demanded by social movements that stigmatize particular words, images, or ideas, alerting us to their presumed dangers, or mere offensiveness. These days, increasingly conventional wisdom dictates that the harm of tolerating presumptively hateful or demeaning speech is much greater that the harm of censorship. "Free speech isn't hate speech," or "Free speech doesn't give you the right to offend people," are common, nonsensical refrains.
So it's not surprising to learn that Rahm Emanuel's penance for uttering the r-word includes a promise "to consider seeking legislation known as Rosa's Law to remove the word from federal law," and an agreement to " 'continue to look for ways to partner with [advocacy groups]' on the legislative front." Of course, removing the words "retarded" or "retardation" from federal law would not violate anyone's speech rights. (And a promise to consider seeking legislation is hardly a promise to press for its enactment.) But this focus on the "legislative front" is worth noting. People who seek informal cultural restrictions on "bad" speech generally end up seeking (and often obtaining) formal legal restrictions as well. When speech is characterized as a serious or dangerous problem, it inevitably becomes the subject of legislative "solutions."
Consider the late 20th century, feminist anti-pornography movement, led by Catherine MacKinnon and Andrea Dworkin (and aided by social issue conservatives). Anti-porn crusaders equated pornography with actual sexual violence; Dworkin and Mackinnon offered up a model civil rights anti-porn statute, and, before long, Indianapolis enacted an ordinance characterizing pornography (vaguely defined) as a sexually discriminatory practice, for which makers and distributors could be held liable. This obviously unconstitutional ordinance was struck down by the 7th Circuit Court of Appeals, in American Booksellers Association v Hudnut, and the civil rights approach to regulating porn was aborted. But the criminalization of pornography only intensified, thanks partly to hysteria over pornography and child abuse stirred up by anti-porn feminists. Today, you can be imprisoned for possessing non-obscene, sexually explicit cartoons of imaginary children, or for merely pretending to sell child porn, or for downloading a single image of child porn, whether or not you have ever actually assaulted or otherwise exploited any actual child.
I'm not suggesting that the demonization of certain words will end in their criminalization ever, or anytime soon. But language considered offensive or demeaning is already routinely prohibited on some college campuses, and I might be shocked but not at all surprised by the enactment of local, state or federal legislation aimed at prohibiting intimidating or emotionally distressing speech -- like a bill introduced in the House last year that would criminalize cyber-bullying. It's easy to imagine the U.S. dispensing with national pride, and the First Amendment, and adopting the limited view of free speech more prevalent in Europe, where three Google executives were convicted of privacy violations for failing to remove an online video of an autistic boy being bullied (although in the U.S., cyber-bullying rather than privacy laws would probably govern a similar offense).
In France, the national assembly recently approved a law criminalizing psychological violence, intended to protect victims of domestic abuse. The proposal includes incredibly vague, speculative prohibitions on speech that "could damage the victim's life conditions, affect his/her rights and his/her dignity or damage his/her physical or mental health.'' So, pursuant to the letter of this proposed law, words that might damage the dignity of your spouse could land you in prison for up to three years. (That's what I call big government.)
If the prospect of similar legislation here seems remote, consider widespread support for regulating or even criminalizing bullying (in other words, "psychological violence"). In Massachusetts, where the legislature is poised to enact an anti-bullying law for public schools, "61% of voters support making bullying a crime," at least according to a Fox News poll. The bill currently under consideration by the state senate would require schools to implement bullying prevention and intervention programs, which enjoy wide support, right and left, especially from gay rights groups and especially in the wake of another teen suicide. That schools have an obligation to protect students from abuse is hard to dispute, but the virtues of a general mandate to control bullying will depend, obviously, on how bullying is defined and how the controls are implemented.
Put aside concerns about due process for students accused of bullying (concerns that the Massachusetts Senate bill does not address). What's the difference between bullying and teasing? As far as I can tell, there is none according to the Massachusetts bill: it encompasses both in a typically overbroad definition of bullying that includes any speech intended to "intimidate, frighten, ridicule, humiliate, or cause physical or emotional harm." Teasing, in which children, teenagers, and adults regularly engage in is, after all, a form of ridicule; and perceptions of ridicule or emotional harm, for example, are quite subjective. Rules like this could be used to squelch emotionally laden, honest disputes about opposing values, as well as gratuitous cruelties. If a heterosexual student from a heterosexual family vigorously condemns homosexuality to a gay student or announces to a student with gay parents that he is the product of an immoral or abnormal home, should she be disciplined for intentionally causing emotional harm? Some anti-bullying advocates and perhaps some school administrators would say yes, condemning her remarks as bullying. Should a student who persists in describing intellectually disabled people as "retarded" be punished for bullying?
At the risk of seeming heartless, I worry about the ease with which rules prohibiting bullying can devolve into rules requiring civility, applied broadly to limit difficult, rancorous, and vital conflicts of values and ideas. Niceness is not always a virtue; at least it's not always a preeminent one, and, in any case, it cannot be legislated. If we want to protect vulnerable children and teens, perhaps we should focus on making them feel less vulnerable. The best defense to insults and verbal bullying is indifference. "Names hurt," Craig Smith of Advocates Standing Strong explains. "So what?" a strong person might respond. "Names will never harm me."
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