In October, the Pennsylvania legislature passed the “Revictimization Relief Act,” which allows crime victims to police the actions of perpetrators for life with almost no limits. The inspiration was a recorded commencement speech by Mumia Abu-Jamal played at a Vermont college earlier that month; Pennsylvania legislators said the speech re-victimized the widow and family of Daniel Faulkner, the Philly cop Abu-Jamal was convicted of killing.
Faulkner’s widow was not forced to hear the speech. Her trauma and mental anguish came only from the knowledge that Abu-Jamal would deliver it. “How could they allow him to speak when Danny no longer has a voice,” she asked in an official statement. “It is my opinion that all murderers should forfeit their right to free speech when they take the life of an innocent person.”
A majority of Pennsylvania legislators agreed. They gave Maureen Faulkner, and other victims, the legal right to stop convicted people like Abu-Jamal from doing almost anything. The law, as written and passed, allows victims to prevent any “conduct which perpetuates the continuing effect of the crime on the victim,” with such conduct defined as that which “causes a temporary or permanent state of mental anguish.”
To many, the idea that one person’s subjective emotional experience trumps another’s constitutional rights is an affront, and the ACLU has already sued to strike down the Pennsylvania law. But the elevation of emotion is emerging as a disturbing theme of 21st century law. [pullquote position=”right”]As more Americans seek to protect people’s feelings, they sometimes find themselves in conflict with the foundation principles of justice.[/pullquote]
This year the Supreme Court will rule on Elonis v. United States, a complicated case in which a Pennsylvania man, Anthony Elonis, was convicted after posting graphic and horrifying Facebook statuses obviously directed as his ex-wife. Elonis’s defense claims he was writing rap lyrics, expressing his darker urges in the style of Eminem, and that the First Amendment protects him. Prosecutors say his messages constitute a true threat, and are not constitutionally protected. The case reached the high court partly because of a question over jury instructions: While the First Amendment and prior case law rely on the speaker’s intent to threaten, jurors who convicted Elonis were told to consider his speech a threat “if a reasonable person would have felt threatened.” [Emphasis added]
In other words, the difference between free speech and a federal crime hinges not on what was written or how, but rather on the emotional response of the person doing the reading.
The Emotional Executioner
The peril of introducing human emotion into a rational system of justice has been known since ancient times. As Elle Woods remembers, Aristotle said that “law is reason, free from passion,” and the blindfold Lady Justice has worn since the 15th century is meant to represent her objectivity. The ancient Romans struggled to define their iniuria around mental suffering, and arrived at ex affectu facientis, which relied on the intention of the perpetrator rather than the feelings of the victim. Until quite recently, American tort law did not allow claims for mental anguish in wrongful death cases. In a 1976 piece for the Tulane Law Review, attorney Stuart Speiser and law professor Stuart Malawer attribute this to “the nineteenth-century distrust of jurors’ ability to assess emotional injuries fairly.”
Such distrust is not without foundation. Emotion is inherently subjective and often irrational. Researchers have long noted the powerful human emotions stirred by the experiences of fictional characters, which casts doubt on any jury’s ability to evaluate the emotional experience of a plaintiff. [pullquote]Recent research into the workings of the brain show that it is reason, not emotion, that drives our sense of justice and fairness.[/pullquote] Emotion associates instead with revenge, the opposite of justice.
Today, American tort law provides for mental anguish claims in wrongful death suits, and many other contexts. In fact mental anguish, owing to its subjectivity and ease of exploitation, has often been at the heart of tort reform arguments, and many states have capped damage awards. Yet even as lawmakers limit civil claims based on subjective emotion, they increase its authority in criminal law–to the point where one’s emotional state can be grounds to legally execute another.
Is there another way to interpret “Stand Your Ground,” the much-maligned doctrine that remains in place in more than half of U.S. states? In Florida, Stand Your Ground laws prevent prosectors from filing charges and police from even investigating a shooting, as long as the shooter says he “reasonably believed that such conduct was necessary to defend himself or herself or another.” Similar limits apply in Texas, Georgia, and other states. With the only other witness dead, and no possibility of facing a judge or jury, the judgment of whether said belief was reasonable is left entirely to the shooter–which is to say, the judgment of men like George Zimmerman and Michael Dunn, who felt threatened by unarmed young black men (respectively) walking in the rain and playing their music too loud. Fortunately, neither man avoided a trial, though Zimmerman successfully avoided conviction. One can only wonder how many such shootings have gone unnoticed and unreported because police trusted the emotions of a shooter who stood his ground.
Ethics and Empowerment
Often, this elevation of emotion is motivated by good intentions. The lawmakers who came up with Stand Your Ground say they were protecting the right of every person to self-defense, and those behind the Revictimization Relief Act believe they are in the right. Even those who would criticize such laws are likely to support others that put emotion ahead of core rights like free speech or due process.
Consider the complex policy constructed to address campus rape. Few would dispute the need to protect rape victims from exploitation and trauma. But read The College Rape Overcorrection, Emily Yoffe’s Slate piece from December, and it becomes clear that in our quest to protect victims, American colleges and the federal government have averted civil rights core to our concept of justice. Yoffe’s piece exposes a kind of shadow court in which the accused are questioned and punished without being informed of their charges, denied access to an attorney, refused a proper defense and never allowed to face or even know the identity of their accuser–all at the urging of the White House and the Department of Education.
The need to protect victims of rape is as undeniable as our society’s centuries of failing to do so, and there are places where conventional tenets of justice–particularly the right to face your accuser–are difficult if not impossible to reconcile with such protection. [pullquote position=”right”]Finding ways to accommodate the victim’s emotional vulnerability within the boundaries of due process is both noble and important, but where those two things cannot be reconciled it is simply not reasonable to discard due process.[/pullquote]
In November, the staff at Rolling Stone embarrassed themselves more than once when they first ran Sabrina Erdely’s A Rape on Campus and then blamed their source and alleged victim when it became clear that the piece was not properly fact-checked. Erdely’s primary defense was that her source, a woman she identified as “Jackie” who said she had been gang-raped, refused to go on record unless Erdely agreed not to contact the accused rapist. This stipulation is now common from rape victims who speak with journalists, encouraged by anti-rape organizations who want women to control the narrative of their victimization. As the Rolling Stone story unraveled, a spotlight fell on the conflict between Erdely’s positive intent and fundamental journalistic ethics designed to verify facts and protect the innocent.
“Mass Attacks” and “An Environment of Fear”
Jonathan Chait ignited an online firestorm late last month with “Not a Very P.C. Thing to Say,” a piece for New York magazine in which Chait accused the radical left of “perverting liberalism” through bullying, language policing, and censorship. Chait began his piece with a victim protagonist: Omar Mahmood, a newspaper columnist who was attacked and even fired after colleagues said they “felt threatened” by a column he wrote.
Chait envisions a world in which politically correct thugs oppress free-thinkers who won’t fall in line, banishing and bullying, and even physically assaulting those with whom they disagree. But even Chait relies as evidence on the emotional state of his designated victims. He describes one anonymous professor at “a prestigious university” as “terrified of facing accusations of triggering trauma — or, more consequentially, violating her school’s new sexual-harassment policy — merely by carrying out the traditional academic work of intellectual exploration.”
“This is an environment of fear, believe it or not,” she told me by way of explaining her request for anonymity. It reminds her of the previous outbreak of political correctness — “Every other day I say to my friends, ‘How did we get back to 1991?’?”
One of Chait’s villains is Mireielle Miller-Young, a professor of feminist studies who seized and destroyed images of aborted fetuses carried by anti-abortion protesters on her campus. He quotes Miller-Young’s description of herself as “triggered” and her assertion of a “personal right to go to work and not be in harm.”
Such a claim runs counter to a classic understanding of American free speech, true–at least when one’s definition of harm includes the hearing of words that elicit an unwelcome emotional response. The public square has never been a safe space. To the contrary, the First Amendment intends to protect offensive speech, and the proper redress for those offended is to raise their own voices in response. The redefinition of harm to include hearing or seeing disagreeable messaging, the claims of “triggering” as justification of prior restraint, becomes a kind of heckler’s veto, putting power in the hands of those most emotionally vulnerable.
But Chait plays the same game with his own definitions of bullying and censorship. He cites the case of journalist Hanna Rosin and the Twitter hashtag that trended in response to her book The End of Men:
“[Rosin’s] response since then has been to avoid committing a provocation, especially on Twitter. “If you tweet something straightforwardly feminist, you immediately get a wave of love and favorites, but if you tweet something in a cranky feminist mode then the opposite happens,” she told me. “The price is too high; you feel like there might be banishment waiting for you.” Social media, where swarms of jeering critics can materialize in an instant, paradoxically creates this feeling of isolation. “You do immediately get the sense that it’s one against millions, even though it’s not.” Subjects of these massed attacks often describe an impulse to withdraw.”
Neither Chait nor Rosin makes mentions any threats directed at her, or anything else beyond perhaps criticism and parody–perhaps unjustified–of her book and its thesis. So [pullquote]even in raising a cry against censorship, Jonathan Chait is happy to categorize legitimate criticism as bullying, provided it’s his friends and peers whose feelings are hurt.[/pullquote]
Rhetoric and Wedding Cakes
There is a disturbing tendency in our present dialogue, particularly online, to respond to offense not with criticism but with argument that the offending thing should not exist. A carefully researched and structured article questioning the accepted narrative around campus rape is condemned not for logical fallacies or false premises, but because it is “triggering” and might make it emotionally more painful for victims to come forward. Trigger warnings originated as a courtesy to protect the vulnerable, but in many forums they have become an easy and intellectually lazy way to refute a valid-but-disagreeable argument.
Such behavior is not limited to those on the left, despite the outcry from libertarians and right-wingers against feminist thought. There is not a lot of difference between feminists who label criticisms of rape narrative “triggering,” and parents groups who oppose marriage equality and pride parades because they’re “too hard to explain to children.”
The right has begun co-opting the language of the left, decrying the “bullying” they feel at the hands of marginalized groups like civil rights advocates and feminists, and while such claims fail to recognize privilege and marginalization, they are powerful rhetoric in a society that places such priority on bad feelings. Across the country, conservatives push for laws assuring the right of businesses to discriminate against same-sex couples, transgender people, and in some cases people of different races, on the basis of the proprietor’s religion. Such proposals run completely counter to the principles of equal access and nondiscrimination, but those advancing the initiative say they “feel oppressed,” and that is justification enough.
Are there legitimate reasons to speak out in defense of feelings? Without a doubt. Rape victims should not need to experience more trauma and suffering as the price of seeing their attacker prosecuted; they should have the chance to control their own narrative, and not face the same tired and offensive questions about how they dressed, how much they drank, and how vehemently they said no. People in mortal danger should have a right to self-defense, and a person expressing an unpopular idea should not have to fear banishment for not walking the party line.
Critics are right when they say the ideal of “free speech,” vital as it may be to a democratic society, is irrevocably complicated by social power structures and issues like gender, class, and race. To pretend that some groups are not marginalized or vulnerable, [pullquote]to simply say “we’re all equal” and dust our hands and move on, is blind to our present reality and unjust to those groups.[/pullquote]
The solution, however, does not lie in prior restraint or censorship, or in setting aside core principles of justice and fairness in the interest of avoiding emotional hurt. It lies instead in outreach and education—in making speakers aware of the (often unintended) consequences of their speech, and of ways they might be more inclusive and considerate. This is, understandably not immediate enough for many who view marginalization as a crisis, nor is it fair to expect the marginalized to invest in teaching their oppressors. It is also not a solution in all cases.
Anthony Elonis likely knew that his “rap lyrics” would offend and likely terrify his wife, and Mumia Abu-Jamal certainly could have predicted the outrage his commencement speech would elicit from police groups and the Faulkner family. In neither case would pleas for consideration likely have changed the message—nor, perhaps, should it. In a free society there will always be conflicts over ideas and statements; that disagreement, and the offense it may cause, is (to borrow a phrase) the price of freedom.
George Orwell said, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” Orwell was a wealthy upper-class cis white man, born and raised in an oppressive colonialist regime, so the life experience that informed his perspective may be questionable. The logic of the statement, however, seems unassailable: In our quest for inclusiveness and tolerance, if we seek to still call ourselves a free society, we cannot prioritize the emotional response of the listener above objective principles of fairness, justice, and free expression.
Pennsylvania State Capitol from Ruhrfisch via Wikimedia Commons
Michael Dunn/George Zimmerman from withintheblackcommunity.blogspot.com
UVA Chapel from Vtn5n via Wikimedia Commons
Marjorie Silva from NBC News
All used under Creative Commons license