Ya Just Don’t Get It, Do You?

Tragically, some people just don’t get the point of free speech. Take this student at Dartmouth College. He presumes that America’s system of free speech needs to be fixed. Why?

In the 1992 case R.A.V. v. City of St. Paul, the Supreme Court said a teenager burning a cross in an African-American family’s yard — an homage to the Ku Klux Klan — was constitutional. Despite the Supreme Court’s statement that this is “reprehensible,” and the clear violation of basic human decency cross-burning entails, the Court upheld this speech as permissable under the Constitution. The Westboro Baptist Church, known worldwide as a hate group which commonly uses racial and homophobic slurs, as well as protesting at funerals “thanking God” for the death of the individual, has their hatred constitutionally protected. The abhorrent “rape guide” from this past winter, posted on Bored at Baker? The individual responsible immediately left the College, but otherwise seemingly faced no legal penalties. If someone were to sit on South Main Street catcalling women, that individual’s “right” to do so is legally protected, as it does not incite immediate violence despite being objectively distressing.

Are all of those things morally reprehensible? Yes. Except for the catcalling maybe, in which case it’s really just tacky.

But as for the call that people should face legal penalties for doing these things? And, mind you, I’m talking about just saying or doing something that causes no physical harm to someone. What kind of legal penalties should they face? A court order requiring them to seek government approval before uttering a word? Or should they be tossed into our overcrowded and, let’s face it, not terribly constructive prison system?

As for the kid who burned a cross in the black family’s yard, sure… burning a cross might not be illegal. But I see no reason why they couldn’t have gone after him civilly for the property damage he caused. “Express yourself as you want,” I’d have said. “But I’ll be goddamned if you get to ruin my lawn!”

The problem that this strain of… man… I don’t even know what to call it… “progressivism?” Is that it conflates physical harm with mental anguish.

The old criteria for whether something should be illegal (and, mind you this is the old criteria… congress and the states have tossed this aside a long time ago) was whether it deprived someone of their property or physically harmed them in some way.

In part, this is because these things are easy to define. Had an iPhone that mysteriously disappeared and now your neighbor is showing off their latest gadget that looks almost like the one you had? There’s a case to be made. Having a political discussion when someone who doesn’t like what you’re saying punches you in the face rather than make a solid counter argument? Case to be made.

But how do you define emotional harm or mental anguish? And when can it be deemed legally legitimate?

You can’t say the legalities don’t matter here, because, if you’re going to place limits on what someone can say then the legalities become, really, the only thing that matter.

So when would emotional harm or mental anguish become legally actionable? The second someone says they’re experiencing either? That seems like an awfully quick way for anyone to provide a veto on anyone else’s speech. I mean, they don’t even have to prove that real harm has taken place. Just say that it did.

“But,” I can already hear the counter argument, “A prosecutor will still have to prove to a jury that there was a reasonable belief that what the person said was harmful.”

But that’s not really an answer, is it? I mean, to risk your freedom on what you said, hoping that a system severely stacked against defendants might take your side? Most people would just shut up and not risk it. And that’s tyranny through law, not protecting people’s civil liberties.

The author goes on to make a ridiculous statement about how the rest of the world is already clamping down on this kind of speech and it’s silly that the United States doesn’t also. To which, I only have to ask, “So the fuck what?” For all we get wrong in this country, and I believe we do get a lot of things wrong, I think this country’s almost absolutist view on free expression is probably one of the major things we get right. So let the rest of the world jump off a cliff. Doesn’t mean we have to follow.

But I would like to end with the sentence he starts his wrap up with:

This country is supposedly built on freedom and equality, not on the right to say whatever you want without significant consequences.

Sigh… every time I hear “This country is built on freedom and equality”, I just keep waiting for the punch line, because there is usually a point to be made which counters this opening. Fortunately, here, he packs it all into one sentence.

Yes, this country is supposedly built on freedom and equality. But that equality thing means equality under the law, not that we’re all actually equal. Or, in some cases, more equal than others because of special protections.

But the freedom thing is, in part, the freedom to pursue certain things regardless of what our neighbors might think about it. Such as saying what we want, about who we want, as offensively as we want. Because, speech… by itself? Hurts no one.

As for significant consequences, those are and should be social. I can say whatever I want, about who I want, as offensively as I want but you also have the write to call me an asshole. And that’s the consequence.

Which, in my mind, is way better than throwing people in prison for words that actually hurt no one.