Thursday, May 2, 2013

You Deserve Rape: Free Speech or Harassment?

How far do you think the First Amendment protections on free speech should stretch? In a famous Supreme Court case which then restricted the ability of anti-war citizens to distribute anti-war literature, the Court said that a person could not falsely yell fire in a crowded theater. I think the example was a good one although the actual case opinion was in my view horribly incorrect.

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." LINK

This standard was fortunately later modified in the 1969 Brandenburg decision which allowed that free speech could not be restricted unless, among other reasons, it incited or was likely to incite imminent lawless action. I'm guessing this would for example include such things as standing up in a courtroom where your loved one was about to be sentenced and yelling out to your numerous friends and family "Let's burn this muyerfuyer down and kill that judge!!". That's probably going to get you removed from the courtroom and arrested. There are some other instances in which free speech protections do not apply: threats, lies, copyright infringement, parental rights over children, and a few other circumstances which don't much interest me for purposes of this post. Of course my blog partners Old Guru and The Janitor can easily give chapter and verse on exactly where free speech is and is not limited legally. It's what they do. But I'm not only interested on where the legal line currently is but rather where do you think it should be?

In Arizona there may be another test case, not necessarily legally, but culturally and politically of where we think free speech ends and harassment begins. At the University of Arizona a student protested Take Back the Night rallies and designation of April as sexual assault awareness month by holding a sign that read "You deserve rape".
A student holding a sign that read “You deserve rape” ignited outrage across campus Tuesday, on the same day of a sexual assault awareness event, but administrators declined requests to remove him or his sign. 
Dean Saxton — also known as Brother Dean Samuel — regularly preaches on the UA Mall in front of Heritage Hill and the Administration building. On Tuesday, his sermon drew the attention of onlookers, several of whom either personally confronted him or complained to the Dean of Students Office. 
The Dean of Students Office received stacks of written complaints, emails and multiple phone calls regarding Saxton’s sermon about women, said Kendal Washington White, interim dean of students. Saxton has never directly threatened anyone in particular, and his language has been general enough that he isn’t targeting a particular person, White said. However, a university attorney was contacted to discuss the situation. “We find it to be vulgar and vile,” White said. “However, it is protected speech. He has yet to, at this point, violate the student code of conduct.”
Saxton, a junior studying classics and religious studies, said his sermon was meant to convey that “if you dress like a whore, act like a whore, you’re probably going to get raped.”  “I think that girls that dress and act like it,” Saxton said, “they should realize that they do have partial responsibility, because I believe that they’re pretty much asking for it.”
I think this is a classic case of "I disapprove or what you say but I will defend to the death your right to say it."  I tend to think that the best remedy for bad speech is good the public sphere. That last is important. I don't hold that there is any free speech right to come to a blog and insult people, visit someone's home and curse out the owner or even for the government to insist that a private organization accept an individual member who has previously stated his or her fervent opposition to the group's goals. And often once a parent tells a child that "this conversation is over", well that's the end of that. Usually in my household that particular phrase was a warning signal that this was my final chance to sit down and be quiet before more convincing methods were used. Obviously in a private workplace, someone carrying that same sign Saxton is carrying likely would be fired immediately, forcibly escorted from the premises and possibly sued. So those are all exceptions to "free speech" with which I'm fine.

But in the public sphere where the government is able, willing and eager to use coercive methods that are simply not available to blog moderators, company managers or strict parents, I think we need to be very careful about suggesting that some ideas can't be expressed or worse yet, must be punished after the fact if anyone dares to express them.

The country is full of people who have repugnant ideas. Whether we like it or not, they have the right to express them. Although I might well enjoy forcing certain people to shut up  , whatever political coalition gives me the power to take that action and play censor may be fleeting. So in the not too distant future I might be forced to give up my free speech rights by "bad guys" who find my ideas repugnant. That's not acceptable. Even folks who are in the same general political spectrum as I am can often have surprisingly and to my way of thinking, ridiculously different ideas about topics. They may think that banning this or that idea is a small price to pay for harmony. So it goes.

Saxton's speech may well be hateful and may make people uncomfortable. But that's exactly the sort of speech the First Amendment was designed to protect. Unless Saxton makes a particularized threat to someone or otherwise disrupts class I don't see where the university has or should have the power to prevent him from expressing his opinion. One man's free speech is another woman's hostile environment. In the public sphere I think protecting the right to free speech is more valuable than supposed completing claims like freedom from hate speech or hostile environments. Anything stating someone deserves sexual assault is wrong, obviously. But saying "You deserve rape" in a general sense is different from saying you're going to rape a particular person. One is free speech, albeit ugly, while the other is an actionable threat which should see someone locked up. Of course Saxton's message is not directed at my gender. So maybe I can afford to be rather blase about it. Though in truth I'd feel the same way if he started carrying around a sign endorsing theories of racial inferiority. What if the message is directed at you? What if you are a woman who is wearing a skirt that is too short, heels that are too high or a top that's too tight or too revealing for Saxton's preference. Does your opinion change? Does Saxton deserve a punch in the mouth?


1) Is this free speech?

2) Should the student code of conduct change to make things like this actionable?

3) Should public schools or universities have exemptions from First Amendment protections in order to provide safe environments?

4) Should hate speech lack First Amendment protection?

5) Should Saxton be expelled?

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