Vol. 15 No.1 (January 2005), pp.78-82

LICENSE TO HARASS:  LAW, HIERARCHY, AND OFFENSIVE PUBLIC SPEECH, by Laura Beth Nielsen.  Princeton: Princeton University Press, 2004.  224pp.  Cloth $35.00 / £22.95.  ISBN: 0691-11985-6.

Reviewed by Steven B. Lichtman, Department of Political Science, Dickinson College. Email: lichtmas@dickinson.edu .

One of the most nettlesome difficulties in analyzing the scope and meaning of the concept of free speech is the question of just what it is that speech actually does.  This is a question that has befuddled even the most distinguished constitutional theorists and advocates of expressive freedom.  Oliver Wendell Holmes’ clear-and-present-danger test notoriously extended protection only to speech that was futile and unpersuasive; Holmes’ threshold for regulating speech was the moment at which expression became potentially credible and effective.

It is beyond question that speech communicates ideas, at least when the speaker is competent.  But it is an open question whether speech does anything beyond this—specifically, whether speech causes actual injury which can be accounted for in legal rules.  In cases of libel, for example, certain economic damages can be quantified and thus “proved.”  And of course, Holmes’ famous example of falsely shouting fire in a crowded theater also produces a provable harm with concrete consequences.  But in the case of offensive public speech, whether it is in the form of garden-variety obscenity or group-directed hate speech, injury is a much more tenuous proposition, even where the speaker’s intent to inflict psychic trauma is explicit.  The consequences of such speech are more ephemeral than physical.  This does not necessarily mean that the consequences are any less normatively important, but it does mean that a justification for regulation, absent physical or economic trauma and identifiable causal links, is much more elusive.

Laura Beth Nielsen’s LICENSE TO HARASS is an attempt to provide such justification.  The book, a revamped version of Nielsen’s 1999 doctoral thesis, reminds readers that offensive public speech creates tangible as well as intangible harms, and suggests that rejecting out-of-hand the possible regulation of such speech may inappropriately minimize these harms and their impact on democracy.  It is an intriguing addition to the Law and Society literature, adeptly fusing the best scholarship in this tradition with the naturally complementary theories of the Critical Legal Studies movement.

Generally, Nielsen focuses on three interrelated themes: (1) the divergent social experiences of various groups, and how offensive public speech affects those experiences; (2) individuals’ contacts with legal rules and social norms, and how these contacts influence behavior; and (3) the ongoing debate about hate speech and its potential regulation.  Her main specific project, however, is to inject these inquiries with a dose of data, and this is a most [*79] welcome endeavor.  Often it seems that those whom Nielsen identifies as “First Amendment absolutists” (p.10) and critical race and gender theorists are arguing past each other on the hate speech question, with the absolutists proffering Cassandran warnings about regulation’s slippery slope, and the critical theorists insisting that race-biased and gender-biased words do indeed break bones just like so many sticks and stones.  Neither camp has offered much in the way of empirical support for their claims.  Nielsen’s book is appealing precisely because she attempts to evaluate these claims using qualitative survey data, rather than blanket assertions.

Nielsen’s research design took the form of over one hundred interviews that were secured via 120 hours of fieldwork observing public interactions in selected northern California cities.  She took care to conduct her fieldwork in both racially diverse urban settings like San Francisco, and racially homogenous – and white – suburban settings like Orinda.  In addition, she wisely took pains to supplement her observations of Berkeley with observations of Oakland, so as to control for the presence of respondents affiliated with the University of California, whose answers might be influenced by the school’s colorful First Amendment history.  The questionnaire she utilized as the basis for her interview consisted of dozens of questions, some to be asked of all subjects, and some reserved for particular demographics.  The questions were designed to elicit accounts of personal experience with offensive public speech, chiefly concentrating on racist speech, sexist speech, and panhandling.  These three types of interactions are linked by both the confrontational nature of the encounters, as well as the existence of high-level judicial opinions analyzing their potential regulation within a First Amendment framework.

LICENSE TO HARASS is at its strongest when Nielsen analyzes her findings within the context of the first two interrelated themes mentioned above – how the meaning of “being in public” will vary depending on one’s membership in a distinct social group, and how different social groups react to legal rules.  Her investigation of how identity profoundly affects an individual’s “legal consciousness” is a lively and enlightening follow-up to the adroit work of Patricia Ewick and Susan Silbey on this subject (1998).  The book’s finest moments occur when Nielsen situates her findings in broader inquiries, such as her observation (pp. 89-90) that “those who generally favor the law and legal regulation to solve social problems are significantly more likely to favor regulation of racist public speech.”

The book further shines when Nielsen explores in detail the reasons that some of her subjects gave for not wanting to see offensive public speech criminalized, even as they acknowledged the impropriety or even danger posed by such speech.  These responses turned out to be fairly complex, and not simple boilerplate invocations of the insidious potential for increased state censorship in other contexts.  Many of Nielsen’s respondents foresaw problems in allocating resources to enforce a criminal sanction.  Some also displayed nuanced understandings of personal autonomy that went beyond assertions of [*80] individual rights; one in particular, an Asian man, saw the existence of legal prohibitions against offensive public speech as a means of compelling women to seek help from “big daddy court” (p.118).  Nielsen breaks down the various responses along demographic lines, and in so doing, provides valuable additional empirical heft to the notion of legal consciousness.  For example, Nielsen reports that white males are more likely to object to regulation by depending on “traditional First Amendment values” (p.128); women, meanwhile, were more likely than men to stress the impracticality of such regulation.

Nielsen is also able to place her findings judiciously within the ongoing scholarly debates about the purported neutrality of legal rules.  Critics such as Catharine MacKinnon, Richard Delgado, and Mari Matsuda would argue that such neutrality is an utter fiction, and that this is a zero-sum game; by failing to declare racist and sexist epithets officially unacceptable, the state is in fact conferring a veneer of acceptability on these epithets, and thus reinforcing their injurious and inequitable potential.  Yet very few of Nielsen’s respondents seemed to indicate awareness that the lack of a legal prohibition against offensive public speech is a statist second blow against them.  Indeed, Nielsen reports “near-unified opposition to the regulation of offensive public speech” (p.127), although there is a significant variety of proffered reasons for individuals’ opposition.

This may well demonstrate the limitations of the CLS zero-sum thesis, especially when considered alongside the respondents’ acute awareness of the harms being inflicted upon them.  Then again, this may also demonstrate the pervasiveness of the zero-sum thesis – the state may have so co-opted the legal consciousness of victimized groups that they have been brainwashed into cataleptic passivity.  One possible shortcoming of the book is that Nielsen tends to sidestep these questions rather than confront them, though she does indicate being persuaded by the CLS argument that offensive speech has a silencing effect on its target, thus rendering moot the suggestion that such speech can be combated not with regulation, but rather with more speech.  In fairness, a far-flung discussion of these questions would not have been germane to Nielsen’s carefully-limited project; hopefully, she will tackle these issues head-on in her future work.

There do appear, however, to be some possible flaws in Nielsen’s research design.  For example, inclusion of begging as a third form of offensive street speech does not seem to fit.  Begging is folded into Nielsen’s analysis because resistance to it “comes backed by the force of the state” (p.134), notably in the form of restrictions demanded not by individuals or social groups, but by economic groups seeking to clear out unpleasant obstacles to business and tourism.  Yet Nielsen’s focus on race and gender suggests that her main concern is aggressive speakers who confront their “victims” based on their target’s identity.  This element is completely absent from the beggar’s solicitation, and notwithstanding the common thread of confrontation, the begging example tends to come off as a straw man. [*81]

This impression is especially difficult to avoid because Nielsen had other potential comparative avenues to travel, given that her main concern in this project is the socio-legal consequences of confrontational public speech.  Many evangelicals, for example, feel a similar sense of societal threat when vulgarity or overt sexuality is on display in the public square.  They not only take offense at what they see and hear, but also claim to experience the same kind of sociocultural marginalization (and concomitant inequality) that Nielsen ascribes to race and gender groups, in that they sense being told that their values are beyond the mainstream, illegitimate, and unworthy of official safeguarding.  Similarly, non-Christians often feel marginalized by displays of Nativity scenes or other Christian symbols.  This dynamic is especially prevalent when such displays are not merely visible when one is out in public, but when such displays are physically situated on public commons (and, further, paid for with public funds).  Had Nielsen raised these questions in the process of analyzing her data, she would have had a more congruent set of comparative markers. What makes the omission of these questions all the more unfortunate is that for believers, religious faith is just as much a question of personal identity as one’s race or gender.  Consequently, these inquiries would have fit very well into the Ewick/Silbey model upon which Nielsen is attempting to expand.

Also unfortunate is Nielsen’s decision to neglect perhaps the preeminent modern example of offensive public speech and the legal responses thereto: the 1977 attempted march by a neo-Nazi group through Skokie, Illinois, a town with a large Holocaust-survivor population.  Granted, this is material that has been covered exhaustively by other scholars, most notably by Philippa Strum (1999).  Yet, it is curious that the court cases are not included in the introductory chapter on law of offensive public speech, all the more so because Nielsen admirably refuses to confine this otherwise well-constructed chapter to Supreme Court pronouncements.  The residents of Skokie learned important lessons about the limits of legal remedies from their ordeal, lessons that were subsequently reinforced by both the 7^th Circuit (COLLIN v. SMITH) and by Illinois state courts (SKOKIE v. N.S.P.A).  At the very least, this story would have provided excellent base comparative material for Nielsen’s exploration of legal consciousness; its complete absence from the book, save for one cursory half-sentence, is highly puzzling.

In the end, though, these are minor quarrels.  LICENSE TO HARASS is an important contribution to the scholarly debate on the effects of speech, the need for regulation, and individuals’ reaction to and understanding of legal rules.  It offers sophisticated insights that will intrigue Nielsen’s academic audience, yet at the same time it is also blessedly free of specialized jargon, making it a well-written book that is accessible to undergraduates as well.

REFERENCES:

Ewick, Patricia, and Susan S. Silbey. 1998.  THE COMMON PLACE OF LAW: STORIES FROM EVERDAY LIFE.  Chicago: University of Chicago Press. [*82]

Strum, Philippa. 1999.  WHEN THE NAZIS CAME TO SKOKIE.  Lawrence: University Press of Kansas.

CASE REFERENCES:

COLLIN v. SMITH, 578 F.2d 1197 (7^th Cir. 1978).

SKOKIE v. NATIONAL SOCIALIST PARTY OF AMERICA, 69 Ill.2d 605, 373 N.E.2d 21 (1978).

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© Copyright 2005 by the author, Steven B. Lichtman.