Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, July 18, 2017

Can Neurophysics Inform Free Speech Theory?

In a recent op-ed in The New York Times, Northeastern University Psychology Professor Lisa Feldman Barrett argues that some forms of repugnant speech are the functional equivalent of physical violence and that this principle can help us draw lines between acceptable and unacceptable speech on college campuses and elsewhere.

I am sympathetic with many of the views Professor Barrett expresses in her piece.

Like Professor Barrett, I recognize that speech has serious real-world consequences on our college campuses and elsewhere.

And, like her, I strongly disagree with those who characterize our students as being coddled or infantilized simply because we are interested in making a welcoming and inclusive learning environment available to them.

Indeed, I began giving something like "trigger warnings" regarding certain material in my classes thirty years ago, long before the phrase came into use. I did not do so out of "political correctness" or because I thought of my students as "snowflakes," but because it seemed to me like good and considerate pedagogy.

Nevertheless, I depart from Professor Barrett in some important respects.

Professor Barrett's intriguing argument goes like this: certain speech can cause stress; as a matter of scientific fact, prolonged stress can result in serious physical harm (making us sick, altering our brains, killing off neurons, even shortening our lives); therefore, the use of some words is effectively an act of violence.

I defer to Professor Barrett on the scientific underpinnings of her argument.

And I concede that her argument aligns with my own experience. Indeed, anyone who has lived through maturity has likely spent some time on the receiving end of stress-inducing speech and will have sensed first-hand some of its deleterious physical effects.

To this extent, her syllogism seems to me not just logically sound but empirically apt.

But we part company when Professor Barrett argues that these scientific findings provide empirical guidance for which kinds of controversial speech should and should not be acceptable on campus and in civil society.

She contends that the guidance turns on the difference between "abusiveness" and "offensiveness." The latter category, she maintains, is acceptable while the former is not.

Professor Barrett argues that offensiveness is acceptable because "it is not bad for your body or brain." She gives as examples of offensiveness: "fleeing from a tiger, taking a punch, or encountering an odious idea in a university lecture."

This triumvirate of examples puzzles me. It seems to me that taking a punch is, indeed, bad for your body. It also seems to me that fleeing from a gruesome mauling death at the teeth and claws of a tiger is, as stressful events go, right up there. And talking about an "odious idea in a university lecture" in the same breath as these other two experiences seems to treat as functionally identical things that are plainly different.

In any event, Professor Barrett goes on to distinguish these acceptably offensive things from unacceptable abusiveness. She appears to leave abusiveness undefined here, although she clearly believes it has a great deal to do with duration.

The problem with abusiveness, as she describes it, is "long stretches of simmering stress"; "a lot of time in a harsh environment"; and "constant, casual brutality." By her terms, abusiveness seems to be worse because we marinate in it, which I suppose makes sense.

But the omission of a definition here is a critical failing. Marinate in what? Is abusiveness just offensiveness that lasts longer? Or is it something else? And, if it is something else, then what is it?

Furthermore, this part of her argument appears to offer yet another unsatisfying mixing of things that are fundamentally unalike. She refers to a "harsh environment" and "constant, casual brutality" in the same passage. But are harshness and brutality really the same? It seems to me that clearly they are not.

At this juncture, Professor Barrett declares that the principle she has described distinguishes the acceptably offensive speeches of Charles Murray, who contends that genetic factors help account for racial disparities in I.Q. scores, and who in her view should be allowed on campus, from the unacceptably abusive speeches of Milo Yiannopoulos, who she describes as a "provocateur" and "hatemonger," and who in her view should not be allowed on campus. "There is nothing to be gained from debating [Yiannopoulos]," she declares, "because debate is not what he's offering."

I find this argument deeply confusing in numerous respects.

Is it the case that we cannot debate provocateurs and hatemongers? Why? Isn't that one way in which we expose hateful ideas for what they are?

Even if we acknowledge that debate does not always dispose of hateful ideas as quickly or effectively as we would like, are its failings really worse than the dangers of censorship? What has become of Justice Brandeis's famous injunction that the remedy for bad speech is "more speech, not enforced silence?"

Also, isn't it possible that a student sitting in one of Murray's lectures would come out of it feeling abused and wallowing in stress? Indeed, isn't it plausible that the pretensions of legitimacy that attend a speech by Murray make his statements more damaging than the unhinged rantings of Yiannopoulos?

Plus, if duration is key, then why does an hour-long speech by Yiannopoulos's qualify as abusive?

And there's this: according to Professor Barrett's argument, as I understand it, an hour spent listening to the drivel of Yiannopoulos is more traumatic than flight from an attacking tiger. I fully appreciate the outrage that Yiannopoulos evokes in many people. But I am personally not much persuaded by this ranking of relative stressors.

Sympathetic as I am to many of her points, in the end I do not find Professor Barrett's argument a helpful tool in the debate over campus speech or in the mediation of the competing concerns.

Almost thirty years ago, the Supreme Court of the United States in Hustler Magazine, Inc. v. Falwell overturned a jury verdict in favor of the televangelist Jerry Falwell against Hustler Magazine. The jury had found Hustler's parody of Falwell to be "outrageous" and so subject to punishment. The Court declared "outrageousness" to be too vague and subjective a standard by which to determine when speech is protected and when it is not.

In my view, a distinction between acceptable offensiveness and unacceptable abusiveness fares no better.

It does not save us from our current perils and confusions.

It just leads us into new ones.

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