How Society, Not Government, Regulates Hurtful Speech

By July 23, 2012

Luke Wachob is a FIRE Summer Intern.

The first step onto a college campus can often feel like walking into a different country. It has its own colors, its own traditions, its own newspaper, and even its own President. The architecture, the sounds, and the people all change decidedly once you step out of the car and onto campus. After being there for a while, from the seclusion of your dorm, it can seem so separate from the outside world that you can wonder earnestly what those mysterious United States of America are all about. For one thing, if someone ran down your dorm hall shouting obscenities and slurs, you’d know to go to the RA, who’d find a Campus Life administrator. Demerits, suspensions, and sensitivity training all around! Problem "solved." Yet I hear all the time that in the real world, such protections against nastiness don’t exist. So what the heck do they do about it out there? 

A school bus monitor is demeaned and insulted by students and then gets a paid vacation from witnesses of the disgraceful incident. A cable television comedian makes a joke about rape, and the blogosphere explodes with reactions, from outrage to defensiveness to mere confusion. It happens all the time: offensive, troubling speech pops up and is responded to by other, more reasonable, speech.

Two of the biggest little stories to get put through the outrage cycle this summer have been the tormenting of a school bus monitor in Rochester, New York, and a joke Daniel Tosh made at the Laugh Factory about the hypothetical gang-raping of an audience member. Both examples show how society can regulate itself and address the pains that come with living in world where millions of people think and speak freely. 

The case of the bus monitor demonstrates American society’s intolerance for public cruelty. Karen Klein was taunted and insulted about her income and appearance by several students while another recorded the incident on a cell phone. Less than 24 hours after the video was posted online, viewers had already raised a fund of close to $200,000 to send Klein on a well-deserved vacation. (It’s up to $680,000 now.) Klein described herself as "amazed" at the support she received from total strangers in letters, emails, and on Facebook. As for the bullies, they and their families have also received letters, emails, and phone calls. It should go without saying that this correspondence hasn’t been as supportive. The symbolic value of the donations to Klein and the public’s admonishing of the bullies are powerful tools society has to educate and enforce kindness and civility. 

One of the rationales for hate speech laws is that victims of "verbal abuse" are deprived of their sense of security and equality when hurtful utterances go unpunished. That premise should be deeply questioned. People from around the country and around the globe flocked to defend one bus monitor in Rochester from the words of mean kids while simultaneously chastising the students. This didn’t happen because someone stepped in to punish the students for being mean (although the students have been disciplined by their school), it’s because the level of meanness was so unappealing that once it was exposed, people stepped up to counteract it. As FIRE frequently says, "the solution to ‘bad’ speech is more speech," and this case is a perfect example of one of the ways this process can work. Or, as Karen Klein put it, "It’s like, wow, there’s a whole world out there that I didn’t know."

But perhaps you think that society can only regulate itself in cases where the speech in question is almost unquestionably cruel. What about a case with speech that not everyone agrees is hurtful? Wouldn’t society be unable to resolve disputes then?

Consider the Daniel Tosh controversy that arose earlier this month. When an audience member called out during a show to say that rape (a topic that came up through audience requests) was not funny, Tosh responded by joking, according to a blogger present, "Wouldn’t it be funny if that girl got raped by like five guys right now?" The story spread quickly, and reactions have been varied and passionate, with many denouncing Tosh and others coming to his defense. The result has been a dynamic public debate about the way society talks about rape and the nature of comedy and its limits.  

This debate is not a bad thing. Indeed, one of the traditional and strongest arguments against censorship is that "bad" speech can lead to good conversations. Even if Tosh’s comment made you so mad you could hardly breathe, if you can step back a moment, you’d probably be happy to see so much energy and focus on a discussion of how society portrays and responds to sexual assault. Tosh’s speech made that conversation more salient and brought more people into it. Would it really be better for us to disagree with one another in silence and ignorance? That’s all that rules punishing speech would accomplish. 

This leads me to another important point. You may be convinced from these examples that governments aren’t always necessary to respond to controversies and pain arising from speech, but you may still think that these laws could be a good backup or a benign codification of the social norm. However, there are serious problems with this approach. The first I just alluded to: When it’s punishable to say certain things, people will be more careful with what they say. This is colloquially known as lying. An honest disagreement is better than a dishonest unity, both for discovering truth and resolving disputes. Another problem is that rules and laws have to be enforced by imperfect and biased people. Any time we give someone the power to censor another’s speech or punish them for it, we risk that power being abused. FIRE deals with those (plentiful and outrageous) abuses every day. 

When it comes to speech and expression, a society of free people, both in and out of college, can regulate itself. The process teaches us tolerance, encourages honesty, and facilitates public debates about pressing issues in society. This is crucial for society to function and even more crucial for a university to fulfill its academic mission. College students are supposed to be challenging their understanding of the world and exposing their biases and beliefs to criticism for possibly the first time in their lives. That means that they’ll say and hear offensive things. Feelings will be hurt. This isn’t something to legislate against; it’s something to embrace! The heavy-handed regulation of student life that’s common at universities today deprives students of valuable experience learning how to deal with speech that offends them. The community doesn’t pull together to shield someone from a hurtful protest that the police already shut down. The public doesn’t get to have meaningful discussions about controversial topics when provocateurs are silenced before they go on stage.

There are times when I wish the world was more like the university and times when I wish the university was more like the outside world. This is a case where the outside world has it right: hurtful speech shouldn’t be a concern of the law.