Mar 2, 2011

Traumatic Harm and the Freedom of Speech

What are the limits to the freedom of speech? A classic answer is Mill's harm principle: one has the freedom of speech to the extent that one is not harming another. Depending on how we think about harm in this context, the principle may be too restrictive. If merely offending someone suffices to harm them, than merely offensive speech will not be permitted, regardless of whether the offense is reasonable. This seems obviously too broad.

There's a way of understanding the harm principle that would take the paradigmatic case of harm to be specifically traumatic harm. Speech that merely offends, even if the offense is reasonable and indeed severe, would be protected, whereas speech that characteristically tends to result in traumatic harm would not be protected. Traumatic harm is a sufficient condition for rendering speech outside the protection of political liberties.

This version of Mill's idea-- call it the traumatic harm principle-- can be put to good use in jurisprudence. Consider Snyder v. Phelps, a U.S. Supreme Court case decided this week in an 8-1 ruling that picketing by the Westboro Baptist Church near the funeral service of a U.S. marine was protected by the First Amendment. (Read the New York Times article if you want to know what the signs said, I won't repeat the content here.)

I find it telling that both the opinion of the majority, and Justice Alito's dissenting opinion, reference the severe psychological toll the protests would have taken on the father of the deceased: "it is not necessary to allow the brutalization of innocent victims," writes Alito, while the majority emphasizes that the protests must have deepened the father's "incalculable grief." Though the justices do not appeal to the notion of trauma specifically, these remarks show an awareness of the traumatic effects of the picketer's actions. If we follow the traumatic harm principle I've proposed, we would have sufficient reason to deny this 'speech' constitutional protection.

Beyond this case in particular, there are other fruitful applications of our revised harm principle. Consider speech that we would classify as harassment, sexual or otherwise. This is a clear example of speech that is characteristically traumatic to its target. It is also typically offensive, but that doesn't suffice to explain why it should not be protected. The traumatic harm principle would license an exclusion of sexual harassment and other forms of traumatic speech as beyond the reach of political liberties.

While it would admittedly mark some degree of departure from contemporary First Amendment interpretation to rule that the picketers' speech is not protected in virtue of being traumatically harmful, it would be a move in the direction of a morally sound free speech jurisprudence. There are, of course, difficulties with my suggestion. What exactly constitutes traumatic speech? Must the speech be actually traumatic, or only the kind of speech that tends to be traumatic? These are important questions, though they are very much the same questions that present any account of the limits of free speech.

9 comments:

  1. It is that very fluid, taste-based, subjective nature of an adjective like "traumatic" that makes the majority of the justices leery of building a new foundation for free speech on it. Free speech jurisprudence doesn't have to be 100% morally sound; it only has to be consistently and rigorously applied.

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  2. Mike, thanks for your comment. Surely you would agree, though, that free speech jurisprudence should have as much of a moral foundation as we can give it, subject to various constraints. I actually think traumatic harm is fairly objective. Trauma is well studied in psychology. Offense, on the other hand, is quite slippery. The justices seem to have no problem making judgments about notions like grief and brutalization, so I do not see why they would take traumatic harm to be any more difficult to work with.

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  3. Trauma seems not well-defined to me. If sexual harassment is considered traumatic, then various offensive things should be considered traumatic as well. Some people might consider it traumatic to be cursed at. You say that it is studied in psychology, but how rigorous is this science? Could this just serve to (further?) politicize psychology, since there will be pressure to character various offensive things as traumatic?
    -Greg

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  4. Greg, thanks for your comment. The psychological study of trauma has advanced significantly in the past few decades. The Vietnam war and the women's movement were particularly influential in (re)focusing psychologists' attention on trauma. As with any science, there is a danger of politicization, but I don't find that particularly worrying in this case.

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  5. a) Is there any proposition of social science that you'd bet a large sum of money on (i.e. that you are highly confident about)? Is there anything in psychology that "we" believe now that "we" believed 100 years ago?

    b) Science is becoming dangerously politicized for this very reason. If people expect science to answer political questions science becomes way more likely to become captured by politics.

    -Greg

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  6. Greg:

    (a) Yes, I'm confident about a lot of cognitive, social, and developmental psychology, along with plenty of neuroscience, though the last tends to particularly poorly reported in the media. I'm also confident that some of what the best psychology tells us now is false. Obviously, I think much the same about physics, chemistry, biology, etc. The worries about politicization are somewhat weaker in those cases, though there are parallel concerns about bad social epistemic practices (e.g. groupthink, overhyping trends, etc.). I discuss worries about politicization in psychology in my post on Haidt: http://theconsternationofphilosophy.blogspot.com/2011/02/haidt-on-bias-in-academy.html.

    (b) Science doesn't answer political questions, but it is relevant to political questions and will be appealed to (usually inaccurately or deceptively) by politicians whatever scientists do. A useful thing for philosophers to do is to evaluate the social and political relevance of scientific results. For example, some psychologists (mistakenly) think that we can show empirically that conscious free will is illusory. What should judges or prosecutors make of this claim?

    I should add that these worries about psychology aren't quite to the point. All I want to say about trauma psychology for my purposes here is that it's a well-developed part of respectable contemporary psychology. The notion of traumatic harm is a philosophical notion that will relate in some way to the psychologists' talk about trauma, but probably not in a straightforward way. The point, then, is that appealing to traumatic harm is not a hopelessly subjective criterion for assessing whether some speech should be permitted. It's as objective, in the relevant sense, as most other accounts of the limits of free speech.

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  7. OK, some good points. But imagine that 80% of philosophers decided that the psychologists (that believe free will has been disproved) are correct. Should judges start ruling in new and exciting ways?

    There may be some room for expert opinion in jurisprudence, but I think it's rather tiny.

    Probably the bigger role for expert opinion is at Congressional hearings. But there the Congressmen can just decide that they don't care at all about expert opinion. I dunno, maybe I'm just rambling.

    -Greg

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  8. A simple solution seems to just be to ban any speech that is harassment. The WBC was clearly harassing, ergo they are to be banned. It doesn't matter whether the speak is traumatic, since even if the person hearing it found the speech enjoyable it would still be harassment. This seems a much better, more objective criterion than Trauma.

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  9. Anonymous,

    I don't think harassment is going to do the work you want it to. For one thing, it might not fit the facts of the WBC funeral case, since in this case (or in some variants of it) it's somewhat unclear whether the actions constitute harassment, given how far the picketers were from the funeral. Suppose the picketers' message were put up on a billboard, a hundred miles away from the funeral, but it was clear that the funeral was the target and we suppose that the family will find out about the billboard. I'm not sure whether this would be harassment, but I'm quite sure that it's problematic for the same reason as the original case.

    Aside from that issue, harassment in general does not seem to be a good explanation for why we should prohibit such actions. Some kinds of harassment are merely annoying or bothersome, whereas others (including sexual harassment, verbal abuse, bullying, and so on) are deeply problematic and may be legitimately proscribed. One thing separating the first category from the second is the peculiar kind of harm (which I'm here calling traumatic harm) that is characteristically inflicted upon the victim.

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