Employees who have been subjected to patterns of verbal abuse by supervisors and fellow employees have won court judgments against the employer. One such case occurred in the State of Washington, where the Crown Zellerbach Company was found liable to a Mexican-American employee who, according to the state supreme court, had been "subjected to continuous humiliation and embarrassment by reason of racial jabs, slurs and comments We must be cautious about such remedies, however, if and when they begin to spill over to circumstances where the instances of racist or sexist utterance are rare rather than part of a persistent pattern, and where there is no authority relationship present as between boss and employee or teacher and student.
Key elements of the Washington Supreme Court decision in the Crown Zellerbach case, for example, were its finding that the victim was in a situation where he had to "remain in physical proximity" to people who were "continually" making racial slurs, and that the participation in this activity by a person in a position of authority over the target created the apprehension of discriminatory treatment that might well go beyond mere words.
We must also be wary of restrictions, such as those being adopted by some universities, that punish racist or sexist speech on the basis of vague criteria such as the creation of an "unpleasant" or "hostile" environment, rather than specific and demonstrable interference with a targeted individual's ability to function.
Not that unpleasantness or discomfort resulting from the speech of others is benign.
It is not a harm, however, from which people in a free, and often disputatious, society can be immunized. The supreme court of the State of New York recently made that point clear, in striking down as overbroad the state's harassment statute, which had been invoked against a nineteen-year old woman who had called a retarded neighbor woman a "bitch" and her retarded son a "dog" as they passed by her door.
Absent a clear and present danger of material consequences, the court believed that such verbal abuse must be tolerated. That is a standard which universities, supposedly bastions of free inquiry, would do well to embrace.
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To do otherwise would be to accept the proposition, offered as perhaps their most forceful argument by the advocates of restricting racist speech, that the emotional distress suffered by the victims of such communication is, in and of itself, a sufficient harm to justify an exception to First Amendment protections.
That real emotional pain may be experienced by the targets of racially, religiously, or sexually abusive speech is undeniable, particularly when they feel their group to be vulnerable to oppression by those actually or potentially in power. But emotional pain is a highly subjective, individualized experience that can result from a wide range of stimuli, including not only explicit and deliberate verbal attacks but unintended slights and even vivid historical or fictional accounts of traumatic events.
Emotional pain can also be confounded and confused with other psychological states. Lawsuits for causing mental anguish were filed, for example, against the ABC network for its broadcast portrayal of the impact of a nuclear war, "The Day After," though what the plaintiffs had probably felt was less mental anguish than intense political disagreement. And in a suit for emotional distress arising out of the Skokie incident, a holocaust survivor and leader of the opposition to the Nazi march, who testified that the sight of marching Nazis would evoke intolerably painful memories of the execution of his parents, was found to have gone willingly to monitor other demonstrations by the neo-Nazis in the Chicago area.
Apparently his opposition to their Skokie march was motivated more by anger than by pain. This is not to denigrate the anger that he felt but to suggest that it is not the same as emotional hurt. Nor is emotional hurt the same for one black person in the face of verbal slurs and epithets as it is for another, nor of necessarily greater magnitude for a black than for a Jew, for a Jew than for a gay, or for a person with physical handicaps.
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It is for this reason that the U. Supreme Court rejected Jerry Falwell's claim against Hustler magazine for the intentional infliction of emotional distress, holding that in the area of political and social discourse any effort to determine the seriousness of alleged emotional harms has such "an inherent subjectiveness about it" that our courts should not engage in the process. Even if one were persuaded that banning racist speech is desirable to reduce harm, numerous practical consequences should give pause. Placing limitations on the verbal expression of group hatred does not make those attitudes disappear.
More likely they will go underground to fester, and perhaps later erupt in more violent form. In the absence of their overt expression, society may grow complacent, thinking it has solved a problem that actually persists. The hidden enemy is more dangerous than one that is seen. Those who are clever enough, instead of going underground, will express their hatred in more indirect and sophisticated ways, evading the prohibitions of the law while increasing the persuasiveness of their racist message by phrasing it in less repugnant terms.
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This is precisely what happened in Great Britain with a racist journal after passage of the Racial Relations Act of The law made it an offense to publish or distribute any matter that is "threatening, abusive, or insulting" aimed at fomenting "hatred against any section of the public in Great Britain distinguished by color, race, ethnic or national origins. Prohibitions also turn censored material into "forbidden fruit" and the advocates of racism into martyrs.
If speech or writing is banned, many will suppose there must be something important that those in power are afraid of. Curiosity, if nothing else, will lead some to find out for themselves what is being withheld or regulated.
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How many people who would not otherwise have done so went to see the movie 'The Last Temptation of Christ" or the Mapplethorpe art exhibit, because of the efforts made to suppress them? In France, National Front leader Jean-Marie Le Pen's success in garnering up to fifteen percent of the vote in recent elections may well have been due in part to the role of martyr he has played to the hilt as a result of the various legal actions brought against him for "inciting racial hatred.
Prohibitions on group libel may also perpetuate a sense of helplessness among the targets of racist speech. Find out more about how your privacy is protected.
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