Everyone who has spent time in public places has been spoken to by a stranger in ways that are unwelcome. White women and people of color regularly encounter offensive racist and sexually suggestive speech in public places. Empirical evidence proves, and commentary suggests, that such speech is harmful to its targets. When civility norms are breached in the streets, scholars often argue that the correct response for a target is “more speech.” This essay considers the harms of offensive public speech, the First Amendment prescription for more speech, and whether more speech is a realistic solution.
In this essay, I argue that the jurisprudential preference for “more speech” has serious flaws by making three points. First, not all public speech is created (or protected) equally. Legal regulation of speech between strangers occurs routinely. Courts tend to uphold these statutes, particularly when begging (as opposed to racist or sexist hate speech) is the kind of speech at issue. When the targets of problematic public speech are more privileged members of society, the state seems quite willing to intervene to protect them. Conversely, where courts reject speech restrictions, they often do so with a prescription for “more speech.” The second point demonstrates that the “more speech” solution relies on faulty assumptions about what people are willing to do. For reasons that are entirely credible, targets of some sorts of problematic public speech do not in fact “talk back” because, for example, they fear violence or even government intervention on behalf of the harasser. Third, I conclude the uncivil public speech and the laws regulating it protect the powerful from harassment in public places, while placing on its less privileged members an unrealistic duty to respond to, or accept, their own subordination.
All Speech Is NOT Protected Equally
There are all kinds of uncivil speech between strangers in public places, including asking for money (begging or panhandling), sexually suggestive speech, and even racist speech. At first blush, begging may seem like an odd comparison to racist and sexist speech, but law’s treatment of begging provides insight into the legal and social construction of public places. Law itself, in the form of judicial opinion and political debate, and most legal scholars, largely views the problem of street harassment in isolation. That is, for the most part, the social context (public space) in which such interactions occur is absent from consideration and analysis. Attempts to regulate race-related speech, including racist hate speech, generally have met unsympathetic responses by the courts and by advocates of free speech. At the same time, restrictions on sexually suggestive or sexually explicit speech are largely accepted in the workplace and in schools but are not considered viable for public spaces. Meanwhile, restrictions on begging in public places are constitutionally upheld. These conflicts unfold in legal battles over hate speech codes, restrictions on begging and loitering, as well as other restrictions on public speech and behavior.
A full doctrinal analysis of this disparity is beyond the scope of this essay, but it is important to understand that courts largely allow (with some notable exceptions) the regulation of begging but strike down restrictions on racist speech and have provided little guidance on sexist speech outside the workplace. Although speech in public spaces enjoys the highest degree of First Amendment protection by the courts, many cities and states have, and enforce, laws that specifically prohibit begging and that routinely survive constitutional scrutiny.
One notable example is the New York City Transit Authority’s 1989 prohibition of begging within the confines of the transit system, including Grand Central Station. When challenged by homeless advocates and civil libertarians, the Second Circuit Court of Appeals upheld the restriction. In Young v. New York City Transit Authority, the court determined that the ordinance restricted a type of speech that does not merit full constitutional protection. In part, this was because commuters felt annoyed, and sometimes threatened, by the beggars in “the very real context of the New York City subway,” in which people with legitimate business are intimidated, harassed, and threatened (emphasis added). The court ruled that the subway is the “primary means of transportation for literally millions of people of modest means, including hard-working men and women, students and elderly pensioners,” and “the City has an obvious interest in providing them with a reasonably safe, propitious and benign means of public transportation.”
In contrast, laws, ordinances, and codes aimed at restricting racist speech have been passed in a variety of settings but are routinely struck down in the judicial system. Hate speech regulation has been written into city ordinances (e.g., St. Paul, Minnesota), workplace environments, as well as both public (e.g., University of Michigan and University of Wisconsin) and private institutions of higher learning. Only restrictions on racist speech in the workplace have been upheld, although not every situation has been legally tested. Restrictions on racist speech in institutions of higher learning and city ordinances have been struck down on the grounds that they are content-based, which the courts treat as a fundamental constitutional flaw.
In perhaps the most famous of the opinions on the subject, R.A.V. v. City of St. Paul, the Supreme Court, in 1992, overturned a St. Paul, Minnesota, ordinance that prohibited “fighting words” that provoked violence, “on the basis of race, color, creed, religion, or gender,” including cross burning. More recently, the Court upheld an ordinance prohibiting cross burning but made very clear that the “speech” or expression embodied in the cross burning remains protected. It is merely the “threat” embodied in cross burning that can constitutionally be regulated (Virginia v. Black, 2003). In Black, six justices agreed that the component of intimidation transformed the regular communicative cross burning protected in R.A.V. into something that could be legally prohibited.
The constitutional status of laws restricting racist hate speech is clearer than the constitutional status of laws prohibiting begging. It is definitely not permissible to merely prohibit the racist or sexist subset of hate speech (since such restrictions are likely to be regarded as content-based). However, it may be permissible to prohibit all forms of hate speech, and it certainly is permissible to restrict hate speech when done “with the intent to intimidate.”
Of the three types of public discourse concerned here (begging, race-related public speech, and gender-related public speech), gender-related public speech is the least doctrinally developed. Although verbal harassment on the basis of sex is prohibited by federal antidiscrimination laws in the workplace by Title VII of the Civil Rights Act of 1964, restrictions on gender-related speech in public have not been passed or challenged at the Supreme Court level. Although speech restrictions in the workplace now are widely accepted, the idea that women should not suffer unreasonable sexual advances by people with power over them was, until very recently, not widely accepted. In recent years, however, prohibitions on sexual harassment in the workplace have become accepted in the law, and even in society more generally. But harassing gender-related speech in public remains a novel and untested legal issue.
First Amendment doctrine about unsolicited speech between strangers in public places is confused at best. Statutes that are clearly content-based that mention “asking for money” are treated as though they are content-neutral (and therefore are subjected to a less burdensome constitutional standard), while statutes designed to prohibit various kinds of speech that might disturb public order, including racist speech, are universally struck down (as content-based and therefore unjustifiable). Why? Perhaps the differ-ence embodies judgment about the perceived social value of the target of the speech in question. What happens in fact is that speech that targets people of higher social status (e.g., begging) is successfully regulated, and speech that targets people on the basis of their race and/or gender is struck down.
The “More Speech Solution”—Realistic?
What advice do judges give to targets of unsolicited or offensive speech? More speech. Allow the deliberative process to take place. We are supposed to engage in a “free trade in ideas” (Abrams v. U.S., 1919) and trust that “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (ibid.). The idea of more speech was also famously declared by Justice Brandeis in his concurring opinion in Whitney v. California (1927). Brandeis wrote, “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by process of education, the remedy to be applied is more speech, not enforced silence.” Indeed, both legal experts and ordinary citizens claim that it is not proper for law to intervene in offensive public speech encounters, at least those that revolve around racist and sexist speech. The jurispruden-tially preferred solution for the problem of offensive speech (of some varieties) is more speech.
This formulation of the problem (that an offensive idea has been inserted into the marketplace of ideas) crowds out other definitions of what precisely may be problematic about being the target of racist or sexist speech in public places. For example, a target might feel threatened, objectified, or dehumanized. In the course of day-to-day life, targets of racist or sexist speech are reminded of their subordinate social status or their status as sex objects. Framing the problem of offensive speech as skewing a “marketplace of ideas” makes the remedy of more speech seem sensible. After all, markets are thought to run well when they are unregulated and the power of a good product/idea will prevail in the end. Thus, rather than looking to the courts to prevent the offensive speech from entering the marketplace, consumers of ideas are expected to reject the bad ones, insert the better ones, and eventually prevail.
Unfortunately, judicial prescriptions for more speech are typically vague. Should a target of offensive speech (or consumer of ideas in a marketplace) respond directly? Immediately? Should she hold a protest or rally at a later time to condemn the idea? We do not know precisely what is imagined by the judiciary’s instruction to engage in “more speech,” but in what follows, we see what some individual targets think and do when unexpectedly confronted with offensive speech in public places.
In some contexts, more speech may be just what is called for. Organized counterspeech is documented and advocated as a remedy in the face of organized hate speech. Examples include the organized counterdemonstrations that occurred when Nazis marched through the largely Jewish community of Skokie, Illinois, and recent organized counterdemonstrations at political gatherings, health clinics, and veteran funerals. In a policed public environment, counterspeech may be effective and safe. But what of the victim of individual, targeted hate speech in public? What kind of speech effectively counters the “truth” of a racial epithet or sexual slur? And how likely are targets to respond? Unfortunately, the reality of public life is that counter-speech is infrequent at best.
Law and Power in Sidewalk Social Encounters
Reactions and responses to both race-related and gender-related street speech are the product of complicated calculations made by the targets of such speech. While some targets speak back and convey a message to the speakers (and to everyone else who witnesses such interactions), it is far more common for targets to ignore the speech altogether (or to have a hidden response).
It is probably not surprising that targets of such speech, whether they report responding to such speech or not, said that they weighed their options very carefully when deciding how and whether to respond, and that the most important factor that determined their response was their own safety in the situation. These comments are more than just uncivil or offensive, they engender fear for physical safety, just as many critical race scholars have claimed. And since women are statistically more likely to fear for their physical safety when they are made targets of sexually suggestive speech than men, “more speech” disproportionately burdens women by requiring that they overcome their fears for their safety more often than men. This is in addition to the burden placed by the “more speech” idea in the first instance.
Those who do engage in active forms of resistance by talking back to their harassers may be doing something serious to combat prevailing power relations, including racism and sexism, by managing to “redefine positively their general social position relative to the dominant group.” (The problem is that this is rare. Only certain—i.e., more often whites, and more often men— members of the targeted group have the luxury of resisting by talking back. Even they are more likely to choose not to do so.)
Overt state power may seem absent in these fleeting but pervasive street encounters, but it is not. State power, through law, works to normalize and justify such interactions when they are race- or gender-related. The false but tacit assumption that “more speech” is both easy and simple, coupled with the assumption that any proposed regulation of problematic race- or gender-related speech would not survive judicial scrutiny, provides powerful normative reasons for people to oppose the legal regulation of such speech. When the offensive public speech is begging, and the targets include the more privileged members of society, by contrast, the state intervenes. Thus, state power is implicated because for certain kinds of public speech (problematic gender-or race-related speech), but not others (begging), the judicially preferred solution, “more speech,” requires the burden to be borne by the target, with no help from the state. Law, as an institution and as official ideology, treats such offensive public speech as a problem with which its targets must live.
Laura Beth Nielsen is a sociologist and lawyer whose research field is the sociology of law, with particular interests in legal consciousness (how ordinary people understand the law) and the relationship between law and inequalities of race, gender, and class. She is a research professor at the American Bar Foundation, as well as a professor of sociology at Northwestern University. She is the author of License to Harass: Law, Hierarchy, and Offensive Public Speech (2004), which studies racist and sexist street speech, targets’ reactions and responses to it, and attitudes about using law to deal with such speech.