Thursday, October 18, 2018

Hate Speech, Threat Liability, Pedagogy (and Civility)

Mark Tushnet

Teaching obscenity law used to be a real problem. One relevant “concept” was Justice Stewart’s “I know it when I see it” standard and Catharine MacKinnon’s riposte. But, you couldn’t really teach the material effectively without being sure that students had seen the material. (That’s no longer an issue because the material is readily available for free on the internet. Indeed, when I was teaching in Singapore I discovered that two popular sites for obscene material were blocked by the government but another, with a name that didn’t make its content clear, was not blocked.) And yet you couldn’t – without being a pedagogical jerk – display the material in class. (I used to waffle about the parallel issue in connection with Cohen v. California, and I still do – probably one out of every three years I don’t describe the facts in class, though of course they are in the casebook.)

Something similar might affect teaching hate speech and threat liability, where the cases are thin on factual detail – cross-burning is of course described in R.A.V. and Virginia v. Black, but not other I think more common examples of hate speech. As a teacher you can't get away with the "use"/"mention" distinction in connection with the N-word. And for threat liability we have Watts, with clear political hyperbole, and the “Nuremberg Files” case, an unusual fact situation, and now Elonis if we use it to explore the constitutional issue the Court avoided.

Those of us who participate in public discussions of contentious legal/constitutional issues probably receive our share of hate mail and quasi-threats (I know that I do). It occurred to me that it might be useful to present some examples as a way of exploring some questions about threat liability and hate speech in the age of the internet. (The framing has to be that these are things directly directed at a specific recipient – either via e-mail or voice mail messages on my office and occasionally home telephone [the latter because until this morning my outgoing voicemail message included my home telephone number, though I’ve now changed that] – and that direct targeting raises additional issues, which are worth exploring.)

So, here are three recent examples (the third included for – sort of – amusement):

1.     It is interesting that you are well educated but still have bouts of retardation. Born a Jew now an atheist married to a Unitarian and produced a [reference redacted]. And you have disdain for commonsense. Well played moron.
[Comment: virtually every noun in this – including “Unitarian” – is, in my reading, intended to be hateful.]
2.     [voice mail] Yeah, um, Mark, you little pussy professor. I swear to God if I ever see you walking around, then I’m going to walk up to you – I’m going to knock your goddamn teeth out. It’ll be so funny. You little pussy professor. Oh my goodness. Just keep teaching your little students there and keep your mouth shut about politics, you little loser.”
3.     U bald piece of shit die mother fucker. Did you suck Thurgood Marshall’s cock?
[Comment: The racism and homophobia aren’t surprising, but I didn’t know before this that being bald attracted hate as well.]
[Overall comment: The only thing left out of these examples is age-ism, captured by recurrent references to my age and, sometimes, by references to how close I am to death – descriptively, rather than threateningly.]

What follows are some reflections on these examples. By “reflections,” I mean that I’m thinking out loud about what I’d say about them in class, not suggesting that liability for the statements would be consistent with the First Amendment. Maybe it would, maybe it wouldn’t, but I’m interested in raising issues, not saying what the bottom line is.

Start with threat liability. My initial reaction to example 2 was that the contingent nature of the threat (“if I ever…”) pretty clearly took it out of the standard analysis of threat liability. On reflection, I’m less sure.

(1) In Watts it wasn’t the contingent nature of the threat (“if I ever get LBJ in my sights …”) but the fact that the statement was understood by the Court to be political hyperbole. It’s not clear to me that the statement in example 2 is political hyperbole.

(2) In a world where someone can travel interstate with a rifle to “investigate” Pizzagate, the fact that the statement isn’t a face-to-face threat (if it is) shouldn’t matter much. Put somewhat differently: Should I be able to call upon public resources to investigate the voice-mail, find out who made it, and ask the caller what his intention was?  Or do I have some burden of moving forward, for example, by attempting to determine who the caller was myself?

(3) I did take a modest protective step in response by changing my office voice-mail message, thereby modestly impairing students’ ability to contact me. Should that be sufficient for threat liability, or must a “true” threat induce larger responses before it can lead to liability?

(4) I can report that as a subjective matter I wasn’t put in fear – or, to use terms that will recur, disturbed or unsettled – by the voice mail. Should that matter for threat liability? This is related to the “suck it up” idea: If you participate in public debates you have to expect, and learn to live with, a certain amount of discomforting responses. But, I’m not the only one affected. Left on my home phone, the message can be disquieting to others in the household. Should that matter? At this point, I think, the analysis begins to blend into concerns about hate speech.

So, as to hate speech: Could examples 1 and 3 be captured in a well-designed hate speech law? (I put aside the question of how you could draft a statute that made baldness a relevant category.) Precisely because the statements are targeted at a specific individual – and aren’t available to the general public other than in this set of reflections – they don’t raise questions about how pervasive hate speech, the unavoidable examples that Jeremy Waldron’s argument turns on, can lead people to find themselves not “at home” in their own communities. (My personal view on this, incidentally, is that no one should ever feel “at home” in the sense Waldron seems to intend. But that takes us too far afield.) At the same time, the uneasiness that receiving these messages generates seems to be of a piece with the things Waldron worries about.

The examples also raise questions for me about the “subordinating practice” account of hate speech. My reaction, frankly, is that the examples show anxiety about having lost a superordinate status, and aren’t an effective way of reinstating the prior relation of super- and sub-ordination. Maybe, though, that reaction should be seen as a reflection of my (perhaps not fully justified) sense that my own status isn’t really at risk – and that those with less secure positions in society might properly take the examples, were they directed at them, to be efforts to subordinate.

Further, precisely because a relatively modest political intervention (supporting expansion of the Supreme Court) triggered these (and quite a few other) responses, perhaps we ought to worry about the existence of diffuse hatefulness floating around, ready to be mobilized in more concrete ways (as in threats). When that diffuse hatefulness crystallizes, perhaps it ought to attract liability.

There’s no clear bottom-line for me here – except perhaps that the examples show that the line I draw in teaching threat liability and hate speech is thinner than I had thought.

I take the parenthetical reference to civility in the title now to be self-explanatory. But, just to be explicit, once I stop receiving e-mails and voice mails like those reported here, in response to a modest political intervention, I’ll move the harassment at restaurants of people who are active in advancing policies that separate children from their families higher up on my list of things to worry about.

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