Thursday, August 24, 2017

Free Speech and Emotional Injury

In 2012, the United States Court of Appeals for the Eighth Circuit, sitting en banc, decided City of Manchester v. Phelps-Roper. The case involved a city ordinance which prohibited picketing within 300 feet of a funeral service. The ordinance was challenged by (and pretty much aimed at) members of the Westboro Baptist Church, who had made a habit of protesting funerals of American soldiers because in their estimation God hates America for our various sinful practices (most notably tolerating homosexuality).

In an opinion by Judge Diana E. Murphy, the court unanimously upheld the ordinance as in keeping with the First Amendment. It was a decision that united both the court's liberals and its conservatives (though the Eighth Circuit is perhaps America's most ideologically lopsided court in terms its conservative bent -- Judge Murphy was at that point one of just two Democratic appointees on the court). I was clerking for Judge Murphy at the time, and I was proud to see the opinion released.

What immediately brought this back to mind was a decision earlier this month by a different Eighth Circuit panel upholding a similar Nebraska ordinance prohibiting picketing near funerals. But what I was particularly struck by, and what is germane to more current political controversies, was the rationale for why the ordinance was upheld.

America is famously absolutist in its free speech jurisprudence. Nonetheless, even absolutism is never quite absolute. Courts have allowed certain types of speech restrictions -- such as those which regulate only the "time, place, and manner" of speech without regard to its content -- albeit only after subjecting them to rigorous scrutiny. Such regulations must be "narrowly tailored to serve a significant governmental interest" and allow for "ample alternative channels for communication."

Why did the ordinance in Manchester survive that test?
A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....
Manchester’s ordinance only restricts protests for a relatively short period, tailored to encompass a mourner’s time of highest emotional vulnerability and no longer.
In the Nebraska case, the court similarly focused on the extreme emotional injury mourners are likely to suffer when encountering picketers at a funeral. It quoted expert testimony that "vulnerable mourners can suffer significant emotional injury due to the picketers’ presence," and concluded that "Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief."

None of this is counterintuitive, of course. When one is burying a parent, spouse, or child, the sheer emotional agony of having one's services disturbed by protesters screaming about how God hates you is simultaneously impossible to imagine and yet all too evident. Nobody finds it odd, or weak-willed, or oversensitive to assert that the emotional injury caused by this speech -- which is just speech, just pure unadorned words -- is very real. And a unanimous court -- conservative and liberal alike -- found that this injury, in this context, could support a type of restriction on speech.

I mention all of this because, as someone who identifies as a free speech absolutist, I have read far, far too many of my putative allies dismiss the entire concept of an "emotional injury" caused by speech as nothing but snowflake-millennial nonsense. What kind of coddled baby do you have to be to say that your emotional health justifies a restriction on free speech?

This retort, of course, is an effort to take a hard problem and turn it into an easy one. The reality is that we have no trouble recognizing that -- in the right circumstances -- speech can cause extreme emotional injuries to persons with perfectly strong wills and tolerant hearts. And if I can imagine the sort of extreme emotional anguish I can envision being triggered by some homophobic thugs protesting a family members' burial, perhaps I can also imagine that sort of anguish resulting from a public speaker at, say, a university declaring one's religious group vermin, or one's ethnic group's entire presence in America parasitic, or one's sexual identity a disease, or one's gender worth nothing beyond sexual gratification. And if I don't condemn the first of these as the product of "intolerance" or emotional fragility, then perhaps I ought not be so quick to attribute that malady to the others.

Yet regular readers of this blog know that I do not support efforts to ban such horrible, injurious speech on college campuses. Why not? What does the free speech absolutist say to all of this?

I say that the Manchester ordinance did not distinguish between "good" and "bad" picketing -- it was "content-neutral" and justified on the basis that funerals were not a place where it was necessary to support the full to-and-fro of political and social exchange. I observe that college campuses are not like that and cannot be made like that, because they are designed as forums for the exchange of ideas and there would be no way to regulate the emotional injury caused by some speech without making appraisals as to content. I note that neither Berkeley nor any other campus would want an ordinance prohibiting picketing within 300 feet of a university. I say that emotional distress is not just caused by unjustifiable speech, and that sometimes being shaken up or made anxious is an important part of the learning process. Finally, I say that the Manchester ordinance was justified not because the Westboro Baptist Church's speech was wrong (though I obviously think it was) but because nobody deserves to accosted that way at a funeral -- but college campuses are not like funerals.

What I do not say is that the emotional injury isn't real, or isn't serious, or exists only in the mind of millennial babies who have never had to deal with a contrary thought.

Speech can cause emotional injury -- real ones, genuine ones, whose gravity we recognize, whose damage can be severe, and whose harms are not always resolvable by "counterspeech". If one is a free speech absolutist, one has to accept that those injuries are sometimes the cost of preserving the free exchange of ideas. But to pretend that there is no cost is an exercise of denial. I know the piper I have to pay.

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