Insulting speech in and out of schools

The speech restriction issue Mark takes up below does not seem to me to be as tractable as he makes it sound, especially outside schools in the larger society. And I don’t think he pays enough attention to duties compared to rights in this context, especially as regards an operational definition of language that “insults other students”.

First, I’m inclined to put aside the line-drawing principle most people seem to like, namely a threat to physical well-being (incitement to riot or attack) typified by Holmes’ “shouting ‘fire’ in a crowded theater” and the “fighting words” principle. The basis for such a rule seems to be an assumption that we are to value our lives above anything else, perhaps because if you’re dead, you don’t get to even pursue happiness. People certainly don’t behave this way individually, whether driving on the highway to hear a concert, or undertaking various extreme scary sports that have known, considerable-and-therefore-presumably-considered, death rates, or throwing themselves on hand grenades to save their friends. Plato warned against being more careful about what you eat than what you think, and I think it’s not clear at all that the principle shouldn’t be reversed: if your life isn’t worth living, why would you want to make it longer? Shouldn’t who you are in general be more important than how long you get to go on being that? All in all, I don’t think we should shelter behind this principle but instead should confront the issue the hard way. The hard way is managing our affairs at retail, individually, for a lot of learning, community, and social capital formation; the easy way is to trust a mechanical rule enforced by bureaucratic means, which is actually a way to avoid the work that needs to be done.

Suppressing offensive speech by rule or law ‘protects’ those directly offended in two ways, of which the second is not so good: it doesn’t just provide comfort (a greatly overrated condition anyway, incompatible with learning) but also ‘protects’ them both from knowing the important truth that someone feels that way and feels authorized to say so, and also from knowing that the people who feel that way are maybe a lot fewer than they fear. Legal prohibition therefore disables the direct victims’ ability to defend themselves and to be defended by peers and fellows. It is not generally respectful of grownup autonomy to deny people knowledge. A healthy society controls stuff like this by retail social signals, not laws and courts: if someone is in everyone’s face with an offensive T-shirt, hearing “that’s disgusting, and it makes you look like a crude and unkind person” may be a much better mechanism than trying to anticipate all such discourse so as to carefully outlaw it. It may even be duty of citizenship for onlookers, including not merely the directly insulted, but the rest of us, whose common social capital is damaged. In any case, it is impossible to the extent that the law has made the exchange impossible in the first place.

I consulted my favorite older daughter the real live schoolteacher about this and she told me about a T-shirt that turned up on a popular kid: a play on the Chips Ahoy bag that said “chips and hos” and “get what you want while the party’s goin” and various other offensive language over an image of poker chips and a naked woman (with strategically placed coverings), and another apparently widely worn with a snowman and the text “I’ve got a snowman”, worn to tweak authorities with the second meaning of snowman as a drug dealer. She’s doubtful that kids in school will have the courage to stand up to something like this or even to recognize that while wearing such a shirt doesn’t demonstrate that doing drugs or misusing women are good, it does certify the person in the garment to be, at least temporarily, a jerk. It seems to me that to forbid this behavior, given student respect for authority (low) and for defying it (high) is a losing game, but that a teacher should be able to require the students to go on record in a discussion about their feelings about it, including getting them to articulate why they approve if they do. I don’t have to do her job (middle school in Watts) so I tread lightly here.

One more thing to worry about: to the extent that offensive discourse is (i) suppressed but (ii) imperfectly, each single instance is much more offensive and salient and shocking.

Several years ago, I did some business across a UC counter with a nice young woman wearing a T-shirt that said, with a goofy picture, “Grow your own dope: plant a man!” I asked her whether she would have worn it if it said “…plant a Mick” or “…plant a blonde” and told her in a nice way that as I had to do business at that counter, I didn’t want to be insulted as a condition of the transaction. It would have been better if a woman customer had given her such feedback, of course, and I’m sure it feels different to confront prejudice as a member of a broadly mistreated group, but I think on reflection I was right not to file a complaint with the university, or demand a rule against men-bashing speech on school grounds.

I have no doubt that I affected this young woman’s thinking in a long-term way, which would probably have been impossible if I had got up on my high horse and waved my umbrage sword…or if Cal had had a rule that prevented her from wearing what she carelessly thought was a harmless joke in the first place. What made a good outcome possible was something admittedly much easier dealing with a smiling student than with a skinhead carrying a bicycle chain and wearing hostile tattoos, which was treating her as a basically decent person who was not, at that moment, being who she really wanted to be, even though a lot of rhetoric in this area strongly suggests that any incident of racist/sexist behavior should be read as diagnostic of a Bad Person.

The research on this is now incontrovertible (go here and have a slice of humble pie): we are hard-wired with prejudice against any group whose identification contributes to defining the identity of our own, just as surely as we are hard-wired with a wretched olfactory sense my dogs would find pathetic. (If you can’t even distinguish the wine glass you’ve been using, with your mouth, from your dinner partner’s by smell, what kind of lousy mammal are you? But we find ways, including hiring dogs, to cope with this disability and get on with life.)

We are also culturally wired (how genetic this is is less well-known) with a generalization of family protection instincts to an organ-like thing that is partly individual and partly shared that we might as well call a conscience. One of its uses is to control the no-longer-adaptive expressions of prejudice and bigotry. The conscience is capable of growth and improvement, in a lifetime and over generations, but it’s never perfect.

Finally, we are in my observation (I don’t know about research on this), hard-wired to change behavior a lot faster when we feel OK about who we are, and to dig in our heels and sulk when learning is conditioned on feeling like a lousy person. So lowering the temperature with which we respond to hostility or insensitivity is likely to improve the rate of learning on the offender’s part. Furthermore, we should think about the type I and type II errors in such situations. If someone insults you for a trait or a membership, you can take it as evidence that a really awful person with deep moral flaws is behaving as he wishes to, or that an only-typically-flawed person who wants to be better has made a slip. I think being wrong with the second judgment is much less costly to everyone than being wrong with the first, so there’s reason to take the “hate the sin and love the sinner” perspective on prudential grounds.

Mark proposes we outlaw, at least in schools, but perhaps in workplaces too, anything “that insults other students” which seems to mean “anything that manifests the fact that someone thinks badly of them or theirs” (Bush’s grandson example), so we’re already in the suppressing truth swamp. Leave aside the pervasive use of all sorts of verbal insults as the warp and sometimes woof of the social life of kids, including men kids up to around four score years; I admit a shirt or poster is not the same as a gibe. And we do need to distinguish constraints on official institutional behavior from individual speech. I have no trouble forbidding a school to display crucifixes, or to have a prayer for the conversion of the Jews in the graduation program, and little trouble forbidding teachers saying various things they may believe (exactly what footing – official and/or personal – a teacher uses to address a class, or a student in office hours, is not such a simple matter, but outside the current discussion). Life is never simple, though: can the chorus sing Bach’s Magnificat? the art class be forced to attend to the Issenheimer Altar, which are quite explicit theological tracts? Of course they can, even though the theologies are specific and not shared by all students.

More perplexing, I think: what should we use as the operational definition of insult for purposes of prohibition? Mark has some examples that aren’t as obvious to me as he suggests. Unitarians and Jews have no trouble with the fact that other people have other confessions; it’s no knock to Judaism in the eyes of Jews that most people are deliberately not Jewish. But a student wearing a Mogendavid around her neck is rubbing the nose of a strict Catholic in the failure of his church to achieve precisely the universal belief his own theology demands. Isn’t it insulting is it to have your efforts to save someone’s immortal soul rejected, and the rejection thrown in your face?For Hussein to turn up with a cross around his neck and be treated like everyone else flouts a central teaching of Ayesha’s religion regarding apostasy, and her parents may think that for Hussein to get away with this anathema undermines her ability to be a godly person. The “niggardly” meme (a word that gives offense to some for purely phonetic, not etymological or linguistic, grounds) echoes here. What about categorical stereotypes like computer wonks and jocks? Is the face of a rap singer whose lyrics are and are known to be misogynistic out of order? In all these cases, is there some sort of “reasonable person” rule, whereby it’s not enough for Jimmy to be offended to the point of tears, but also required that some authority agree that he has a right to be so?

A little less attention to our rights not to be insulted by learning that some of our peers and associates are ignorant or morally not their best selves, and more attention to our duties to take things in the best light where possible, would help a lot here, I think. Religious art, or the crusades in history class, provide a model we can generalize. It’s simply a fact that (i) Matthias Grünevald believed (ii) Christ rose alive to heaven after the crucifixion,and showing (i) is not saying (ii). It may well be a fact that (i) Janie believes (ii) something really odious about Jimmy, but learning (i) does not make (ii) a fact and does not make Janie evil. Janie is not the only one who has some work to do in this situation; Jimmie and the other students do as well. Liz isn’t sure students can get this; I bet they can if we help them think rather than clamping down on stimuli to reflection. Raising the business of comfort protection to the realm of law and formal institutions, whatever its merits, makes that work impossible. Kids are mean and savage beings, among other properties, and grownups are often pretty awful to each other. Institutions need to teach decent behavior in many ways, but I’m not comfortable with the idea that we should readily deceive ourselves about what’s going on by substituting enforcement for self-command and sensitivity. It doesn’t work every time, and there is a risk of sunburn and even an occasional cancer, but sunshine is still be best disinfectant.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.

8 thoughts on “Insulting speech in and out of schools”

  1. Just for the record, Holmes' phrase in Schenk v. United States was not "shouting 'fire' in a crowded theater." It was "falsely shouting fire in a theatre."

  2. "Holmes famous dictum on the limits of free speech was shaped by personal experience. On March 7, 1947, the six-year-old attended the Boston Lyceum Theatre's wolrd premiere of the new musical comedy, 'Hey Everybody, There's a Fire in the Theater… We're Not Kidding!'. The show closed after six minutes, leaving 438 dead. Among the survivors: a future Supreme Court justice with a healthy respect for the limits of free speech… and a bitter hatred for musical theater."
    –America: The Book

  3. Well, yeah, my daughter's progressive private school takes that approach but operationalizing it in a public school setting seems like a daunnting challenge.

  4. Jacob: Holmes was born on March 8, 1841, so, on March 7, 1847, he was a day shy of turning 6. Thus, he was six years old on neither March 7, 1847 or 1947, but was on March 7, 1848. With this posting and the first one in the thread, I guess that Churchill would not have put up with me.

  5. I'm not sure why I always find myself unutterably opposed to Michael O'Hare's writings and I'm sorry that I also find them so tediously over-written that I'm not willing to do the work of deconstructing them. I would like to say that I think that the situation of children in schools, and especially public schools, is so distinct from all other kinds of situations (other than, perhaps, prisons, the army or a hospital quarantine ward) that to talk grandly about speech issues outside the school and lump school ones with it is simply absurd.
    Secondly, I have school aged children, and I was a school aged child at one point. I deeply object to the throw away comment that children are, by nature, brutal and savage and that teachers are more or less competent to amend that. That is to start very much at the wrong end of things. Children are, by nature, social creatures who are as determined to engage with each other and their teachers socially as they can be. They are as easily, or more easily, led by love, reason, and generous doses of cookies than they are by threats, shouts and coercion.
    I am a pro-free speech kind of person and I also believe that, in the long run, good ideas tend to win out over bad. But no child is in school for the long run–they are in school, forcibly, for a very short run. Having the boys wear t-sthirts that call the girls "hos" or having the girls wear t shirts that say "girls rule and boyz drool" can be a jumping off point for a serious discussion (in my kids school it would be) but no discussion happens absent some kind of rule and if the discussion resolves itself into "girls, you will just have to be tolerant of the fact that all the boys agree you are all whores in training" its not going to do little susie much good.
    There aren't any easy answers, as the much more thoughtful post below this one on what is offensive speech and what isn't explains. But that isn't to say we should accept mr. ohare's rather garbled and difficult to apply answer which is, what reallY? I couldn't figure it out. It had something to do with mr. ohare graciously not using his *superior status* to screw over a young college girl in a t shirt he didn't like, and comparing that to the effect of a hostile or outright threatening t shirt (like "homos burn in hell?") and its effect on peer to peer interactions in a highschool.

  6. The line-drawing at "threat to physical well-being" referred to at the beginning of the post has to do with immediacy, not a lexicographic preference for life above all else. If there is time to debate and discuss, then controls on speech are verboten, as Mill argues in On Liberty. But if a speech act is likely to lead to substantial harm before there is a chance to discuss the matter, then controls are OK, as in the false shouts of 'fire' or fighting words examples.

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