Should "abusive speech" be legal? That depends.
In a decision last week striking down part of a 20-year-old anti-harrassment law, the Oregon Supreme Court reminded us that the free speech limits hinge not on how abusive the speech happens to be, but on a more practical element.
"Courts have long recognized," the decision said, "that even speech that is intended and likely to produce violence may not be criminalized unless the violence is imminent."
Oregon's law, said the court, has allowed the banning of speech that doesn't rise to that alarming standard.
The decision ended an episode that began when William Johnson shouted names at two women &
one black one white &
who pulled their car in front of his pickup. Assuming that the rainbow decal on their car meant that they had to be lesbians, Johnson pulled out some amplified sound equipment to blast away with ugly epithets. In the midst of stop-and-go rush hour traffic, one the women got out of the car to confront Johnson, who responded with a fresh supply of homophobic and racist names. The woman later testified she thought Johnson wanted to incite her to violence.
Not good enough. On behalf of the Court, Justice W. Michael Gillette wrote, that however ugly his words might have been, Johnson "did not verbally threaten the woman with violence and no actual violence took place. Harassment and annoyance are among common reactions to seeing or hearing gestures or words that one finds unpleasant ... words or gestures that cause only that kind of reaction, however, cannot be prohibited in a free society, even if the words or gestures occur publicly and are insulting, abusive, or both."
If you have mixed feelings about this decision, you have a lot of company. Out come the scales, yet again, to weigh another set of rights in conflict. Even the ACLU of Oregon, the law's most persistent critic over the years, knows this ruling provides no perfect solution. ACLU Executive David Fidanque called the foul-mouthed driver "reprehensible" and admitted that this kind of abuse can take a serious psychological toll.
"These kinds of verbal assaults cause real pain," he said, "and they have a cumulative effect. "But we can deal with racism and homophobia in our society without doing damage to the important protections of free speech."
Do your scales tip the same way as his? Maybe not, especially if your skin color or sexual orientation puts you directly in the line of fire of these toxic rants. I've heard it said that it's cheap and easy for white heterosexual men like Fidanque and me &
bystanders with no real dog in the fight &
to philosophize about the primacy of the First Amendment.
The real cost of hate speech, some say, goes beyond hurt feelings (which few people put forward as sufficient reason to ban speech, since almost anything that's said is bound to offend somebody); the bigger concern is that hate speech reinforces and nurtures more hate. I wouldn't dismiss that worry completely, especially after reading the single online reader comment that followed the August 15 Tidings coverage of this story: "I think it's great that we can now call a queer, faggot and LOSER without going to gaol (sic) or rehab!"
But experience tells me that over time hate speech sets back the cause of the haters. I don't think anything you or I could say about racist, sexist or homophobic slurs can discredit them as powerfully as actually hearing the venom directly. They have a self-evident ugliness that is much more likely to repel anyone within shouting distance than to recruit them to the cause. Those who've seen Klan or Nazi rallies understand what powerfully self-defeating advertisements they can be.
It's also worth remembering that our First Amendment guarantees weren't designed and aren't needed for polite speech, or innocuous speech, or any speech at all that's within shouting distance of good taste. I remembered this again just a few nights ago, listening to a Vietnam combat veteran comment on how "patriotism" is being framed this election season.
"Well, you know," he said, "I fought underneath the American flag to defend the right of others to burn it." He said it without an ounce of sarcasm, with plenty of pride and, I thought, a profoundly patriotic understanding of America's greatness.
The First Amendment (and Article I of the Oregon Constitution), fully understood and defended, reach those same depths. They reflect our national strength more powerfully than our endless arsenal of weapons. We can be proud that our state's highest court gave them a booster shot.
is the author of "As If We Were Grownups," "Forest Blood" and the new novel "Unafraid" (with excerpts at )
Pulling out the scales on hate speech
Should "abusive speech" be legal? That depends.