Hate speech. Libel. Slander. Threat. Intimidation. Blasphemy.
‘Making words illegal violates our freedom of speech!’ Of course it does. But that freedom, like many others, isn’t absolute. Our freedoms are limited freedoms. They are limited by several things (Joel Feinberg identifies six liberty-limiting principles), one of which is the harm principle. That is, when our action harms another person or society in general, it is limited. It is illegal.
‘But speech isn’t an action. I didn’t do anything. I just said – ’ Saying is doing. Words are speech acts. They are acts of speech. And anyway, if the result is the same, does the method really matter?
‘Yeah but the result isn’t the same. Words can’t hurt you.’ Well, not physically, no. But they can cause psychological injury.[1] And there’s the heart of the matter: should we make causing psychological injury illegal?
Actually, that’s not the heart of the matter. Yes, we should, and we do. The crime of torture includes acts which inflict severe mental pain or suffering (CCC 269.1[1]).
The heart of the matter is when should we make psychological injury illegal? In order to answer that question, we need to figure out what exactly is injurious about psychological injury. I can identify two kinds of injury that can result from speech acts.
First, they can cause pain; it hurts to be called whatever or told whatever. Second, they can cause a loss. Consider insult. At the minimum, it’s annoying, it’s irritating, it pisses us off. That’s life. But consider ongoing insult. That makes life harder; it’s exhausting to deal with it, whether you confront or ignore, and so you have has less energy to deal with other stuff. Such as the pursuit of your interests. Not only is there a loss of energy, there can be a real loss of opportunity and freedom.[2] When blows to your self-esteem and confidence are ongoing, it’s hard not to start believing the insults, and so you start to doubt your worth, your potential, you censor yourself, you limit your options. And of course this could, often does, have economic consequences. You may not pursue a high income career (by not taking any one of the many steps required).[3] Even if you don’t believe the insults, you might censor yourself for fear of provocation and violence, and if that happens in the classroom or the workplace, it can affect your grades and your evaluations, which can lead, again, to limited opportunities.
Both of these, pain and loss, lead us to the next issue: how severe does the injury have to be? For example, do insults cause pain or just discomfort? Are we talking about a little embarrassment or debilitating humiliation? As for the loss, do the insults distract us from our task of the moment or cripple us for life?
It’s complicated. Physical blows tend to injure no matter how strong you are or how fit you are. But psychological blows, well, to some extent it depends on your emotional health (on how mature you are, how secure your ego is) and your cognitive health (how intelligent you are, how able you are to evaluate the truth of the words). The more fragile you are, the more devastated you will be when you’re called an idiot.
Furthermore, it is our thoughts, opinions, beliefs, values, and attitudes that determine whether certain words injure us, and we are responsible for our thoughts, opinions, beliefs, values, and attitudes. If your belief in some fairy tale god is such that your blood pressure hits the roof when I say “God doesn’t exist” – really, am I to blame? So, to some extent, if we’re injured by certain words, it’s our own fault. The same applies to threats: for example, a threat uttered by someone who’s holding a gun and is known to have used it in the past is more likely to be believed and therefore more injurious than a threat uttered by someone who is stoned, giggling, and gunless.
Of course it all comes down to the standard of reasonableness. It’s reasonable to expect the other person is not so frail that a gentle shove fractures the spine. Likewise, surely it’s reasonable to expect that an insult or blasphemy doesn’t send someone into emotional shock. Do we really need to require, legally, a minimum standard of physical and psychological health, on the one hand, and a minimum standard of care, on the other? Perhaps. In which case, a combination of intent (‘I only meant to scare him, I didn’t know he was phobic’; ‘I only meant to shove him, I didn’t know he had a bone condition’) and consequence (he needed to be sedated; he has a broken back) determines whether certain words should be illegal?
For this reason, I would exclude from the realm of the illegal words that provoke violence. Let the violence be illegal, yes, but the provocation for the violence? Please. If we expect people to steel themselves against psychological injury from words, surely we should also expect them to steel themselves against making a physically violent response to words. After all, the latter is surely more within our control than the former.[4]
Onto the next issue: does it matter whether the injury is done in private or public? Typically words in the public arena are considered more problematic because you can’t avoid the public arena. You can’t avoid the subway walls, for example, the same way you can avoid listening to a certain radio station or reading a certain magazine. However, spousal physical abuse, even though conducted in the private arena, is now considered illegal. Does this suggest that words spoken in the privacy of our homes should be as illegal as those written on the subway walls? Perhaps – if they are as severe as the physical abuse and if the person can’t avoid them (that is, if they have nowhere else to go – which may well be the case if they have children or are children).
Does it matter whether the words are written or spoken? An insult in writing is easier to avoid (just don’t read it), unless, of course, it’s written in public. But an insult in writing has a longer life.
Does it matter whether it’s specific or general? ‘You are a loser!’ vs. ‘Canadians are losers!’ My guess is the specific insult is more personally damaging. But maybe not. The general insult of slavery and porn have been quite injurious.
Does it matter whether the words in question are true? Whether it turns out to be true or not, if there’s good reason to believe a threat, and the threat is serious enough to cause serious emotional injury – a constant state of fear, for example – it should be illegal. As for insults, it seems to me that if it is true, it shouldn’t be illegal to say it. And yet there seems to be something more wrong with a billboard that says “Jane Smith smells” than with one that says “John Smith rapes” – both are an invasion of privacy, but the latter is in the public interest, it’s purpose is to prevent harm to others, so that trumps privacy.
Notwithstanding all of this, a major complication of criminalizing psychological injury from speech acts is establishing cause and effect. It’s easier with physical injury and physical acts. Not only is establishing cause and effect easier, establishing severity is also easier. I’m tempted to suggest that that’s because the physical is less complex than the psychological, but I suspect it’s more because we understand the physical more than we understand the psychological: we know all about the heart, the lungs, the nervous system, the sensory systems, the 206 bones in the body, but we have yet to catalogue every sneer, every smirk, the hundred ways of making eye contact…
[1] Assuming, of course, a distinct separation between the physical and the psychological. And most current research indicates no such separation. Even without such research, we know that psychological states can affect our physical states (sadness makes us tired) and physical states can affect our psychological states (a good workout can make us happy.)
[2] Certainly threat and intimidation will have this consequence.
[3] Of course it is this kind of loss that makes libel and slander illegal. Both refer to false statements (libel, written; slander, oral) that injure a person’s reputation, and you can bet that the reputation being talked about is that which enables the person to make money.
[4] I’ve always been suspicious of ‘crimes of passion’ and ‘fighting words’ – maybe it’s just me, maybe it’s just me being a woman, but I simply can’t imagine what someone might say that would make me take a swing at them. Tell them to go to hell, yes, but hit them?
