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Northwestern Prof Makes Argument for Limitations on Free Speech

Northwestern Prof Makes Argument for Limitations on Free Speech

“frequent verbal harassment can lead to various negative consequences”

This professor falls back on the incorrect idea that “hate speech” isn’t free speech.

Campus Reform reports:

Prof: ‘Racist hate speech’ causes cigarette smoking

A Northwestern University professor argued Wednesday that “hate speech” should be a form of expression that is subject to legal limitation.

In an op-ed for The Los Angeles Times, sociology professor Laura Beth Nielsen contends that “members of traditionally marginalized groups suffer” when Americans are granted the freedom “to be hateful.”

“Perhaps it’s nonsense to characterize the nature of the harm as nothing more than an emotional scratch,” Nielsen postulates. “That’s a reflection of the deep inequalities in our society, and one that demonstrates a profound misunderstanding of how hate speech affects its targets.”

The professor maintains that free speech is already a limited right, mentioning numerous restrictions on panhandling, protesting veteran’s funerals, advertising, inciting lawless action, and more.

“So soldiers’ families, shoppers, and workers are protected from troubling speech,” she deduces. “People of color, women walking down public streets or just living in their dorm on a college campus are not.”

To support her argument, Nielsen cites “empirical data” suggesting that “frequent verbal harassment can lead to various negative consequences.” According to the professor, the negative consequences of “racist hate speech” include high blood pressure, cigarette smoking, depression, anxiety and post-traumatic stress disorder.


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Should we be surprised that the thinking of a professor of sociology is a bit … sloppy?

The typical answer is that judges must balance benefits and harms. If judges are asked to compare the harm of restricting speech – a cherished core constitutional value – to the harm of hurt feelings, judges will rightly choose to protect free expression.

This is where she goes off the rails. There is no balancing to be done. Judges are explicitly prohibited from performing such a balancing. The balancing was done when the 1A was enacted. All her subsequent errors flow from this faulty premise.

Laws against panhandling are already unconstitutional, and are routinely struck down wherever they are enacted. The only such laws that survive their first contact with a court are those against aggressive panhandling, i.e. harassment or robbery by intimidation.

The Phelps clan can not be restricted from protesting at military funerals, so long as they stay far enough away that they don’t disrupt the funerals themselves.

Defamation can only be restricted if it makes false statements of fact, because those aren’t protected. If it restricts itself to true statements of fact, or to statements of opinion not subject to truth/falsity, then it’s protected speech.

Similarly in advertising, true statements of fact, or mere puffery, can’t be restricted; only false statements that the target audience is likely to take seriously and put constructive reliance on to their detriment can be restricted.

Obscenity is the odd man out, and she’s got a point that this seems to be an exception the courts simply created out of whole cloth, with no apparent justification. But the creation of such exceptions is very limited, and it’s not something courts can just do on a whim. Certainly legislatures can’t create any.

high blood pressure, cigarette smoking, depression, anxiety and post-traumatic stress disorder

And the power of the legislature or the judiciary to try to control this is found in … what? The Commerce Clause? An emanation of a penumbra?

    Milhouse in reply to tom swift. | June 24, 2017 at 10:59 pm

    In the states’ general police power. The intentional infliction of emotional distress is already a tort; absent the 1st and 14th amendments states could make it available even against pure truthful speech, and could also criminalize it.

legalizehazing | June 25, 2017 at 4:32 am

A Ph.D earned, respect taken for granted. I hearby explicitly revoke any presumed worth of ideas from Laura Beth Nielsen. I hope she is a lovely family member because as thinker she’s garbage.