Abstract
Expressive acts do not, in general, constitute, necessitate, or effect the kinds of injuries for which legal remedies should be available. In particular, such acts do not, in the relevant sense, cause violence. And insult and offense—often enough not genuine injuries at all—do not warrant legal liability. Expressive acts that involve the planning and coordination of violence or the commission of fraud or that evoke post-traumatic stress may sometimes be appropriate predicates for liability.
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Notes
- 1.
This isn’t an exhaustive list of conceivable legal responses, of course. In other societies, and at other times in our own society, these might also include (i) forcible public humiliation, (ii) mutilation, (iii) torture, (iv) enslavement, (v) required work as a gladiator (a particular variety of enslavement), (vi) outlawry, and (vii) general forfeiture of assets. All of these involve the actual or threatened use of force against someone’s body or possessions . And non-forcible remedies, like those effected by means of schemes for rehabilitation or restorative justice, seem to qualify as legal precisely because the state effectively uses force to compel people to participate in them (prisoners are available to participate in counseling and education programs precisely because they are prisoners).
- 2.
See Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society 289–95 (2013).
- 3.
See Christopher D. Tollefsen, Lying and Christian Ethics (2014); Seana Valentine Shiffrin, Speech Matters: On Lying, Morality, and the Law (2014).
- 4.
H. L. A. Hart & Tony Honoré , Causation in the Law 367 (2d ed. 1985).
- 5.
Id. at 373.
- 6.
Id. at 375. Note that, while provocation may be held to occur when a given response, even if illegal, is a “natural” consequence of a given act, “the notion of what is ‘natural’ is strongly influenced by moral and legal standards of proper conduct, [even] though weight is also given to the fact that certain conduct is usual or ordinary for a human being.” Id. at 183.
- 7.
Cf. C. Edwin Baker, Harm, Liberty, and Free Speech, 70 So. Cal. L. Rev. 979, 991–92 (1997) ( quoted in Jeremy Waldron, The Harm in Hate Speech 168–69 (2012)).
- 8.
See, e.g., Joseph Boyle, Jr., Germain Grisez & Olaf Tollefsen, Free Choice: A Self-Referential Argument (1976); Carl Ginet, On Action (1989); David Ray Griffin, Unsnarling the World-Knot: Consciousness, Freedom, and the Mind-Body Problem (1998); Robert Kane, The Significance of Free Will (1998); John Thorp, Free Will: A Defense against Neurophysiological Determinism (1980); Austin Farrer , The Freedom of the Will (1957); John Searle, Rationality in Action 269–98 (2001); Carl Ginet, On Action (1989); Thomas Pink , Free Will: A Very Short Introduction (2004); Richard Swinburne , Mind, Brain, and Free Will (2013); Peter Ulric Tse, The Neural Basis of Free Will: Criterial Causation (2013); Mark Balaguer, Free Will as an Open Scientific Problem (2009).
- 9.
We can’t know a priori that everyone in a given population is a responsible agent. It is in principle possible that some people in some groups are significantly impaired as regards the exercise of free will . It does not follow that those who are impaired in this way will be caused by the film to behave in certain ways, but we can’t rule this possibility out entirely. My argument is simply that we cannot treat people presumptively as if they belonged to this—evidently tiny—group, and that there are good reasons to avoid crafting legal rules or imposing legal liability on the assumption that people belong to this group.
- 10.
The responses in question can be seen as objectionable for more than one reason. (i) They often assume that the absence of a retaliatory, vengeful response to a perceived wrong is itself shameful. But retaliation and revenge, whether or not violent, only add to the injury in the world and are never justifiable. (ii) The specific grounds on which people are judged to have been dishonored may be dubious. For instance, I may be injured by my partner’s adultery . But the injury is constituted by her disengagement from me. In an honor-based culture, however, I may be seen as having been shamed as a result of her adultery either because I am “not man enough” to satisfy her sexually or because I am not able to control her. But of course I am not entitled to control her or anyone else. And if my partner behaves in a way that reveals and reflects my sexual inadequacy, while she may have acted wrongly by breaking promises to me and by putting our relationship at risk as well as by subjecting me to public embarrassment, these wrongs do not warrant violence.
- 11.
Consider the two cases noted in this connection by Hart and Honoré . See Hart & Honoré, supra note 4, at 56, 149, 183, 336, 375. In one, when Liverpudlian Catholics rioted in response to the bigoted remarks of a Protestant preacher, a court judged this a “natural” response and on this basis approved the detention of the preacher. Wise v. Dunning, 1 KB 167 (1902). In the other, the damages due a man’s mistress in virtue of an assault by the man’s wife were reduced in virtue of the provocation putatively offered by the mistress. Trib. Civ., Abbeville, Dec. 22, 1936, Gaz. Tri., Feb. 3, 1937, 62. In each instance, the court’s ruling serves in some significant degree to legitimize violence and seems objectionable for that reason.
- 12.
Cf. Murray N. Rothbard , The Ethics of Liberty 80 (1982).
- 13.
Cf. Frank van Dun , Natural Law and the Jurisprudence of Freedom, J. Libertarian Stud., Spring 2004, at 33–34, available at https://mises.org/system/tdf/18_2_2.pdf?file=1&type=document. Thanks to Sheldon Richman for discussions of this topic.
- 14.
On the view I defend here, the regulation of lies not clearly involved in immediate aggression would be precluded for multiple reasons. (i) Such lies do not effect or otherwise bring about legally cognizable injuries . (ii) Regulating them would interfere with people’s use of their own possessions and their autonomy . In addition, (iii) the kind of apparatus needed to regulate such lies could be expected to inhibit the operation of the instrumentally valuable aspects of the expressive ecosystem . (a) Legal regulations targeting purposeful deception would unavoidably involve the legal system in intrusive inquiries into murky issues related to personal virtue . Further, (b) such regulations could readily be employed to target controversial opinions or controversial speakers. It is an interesting question whether other theoretical accounts of the freedom of expression or reasonable developments of First Amendment might be understood to allow the legal regulation of lying. Seana Shiffrin argues that, while there are good reasons to rule out such regulation, her own preferred theory of free speech, which focuses especially on protecting thinkers’ interests in making up their own minds, would not require legal protections for lying, and she suggests that Supreme Court may have been mistaken in extending First Amendment protection to lies. See Seana Valentine Shiffrin, Speech Matters: On Lying, Morality, and the Law 117–81 (2014).
- 15.
Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (Murphy, J.).
- 16.
I refer to “upset,” “disturbance,” and so forth because I do not wish to use “emotional distress,” which might be taken as a term of art with an existing legal meaning.
- 17.
Cf. Martha C. Nussbaum , Upheavals of Thought: The Intelligence of Emotions 64 (2001); Robert C. Solomon , About Love: Reinventing Romance for Our Time 76–82 (1988).
- 18.
While defending narrowly targeted legal penalties for what he characterizes as “hate speech,” Jeremy Waldron is clear that offense as such is not an appropriate predicate for liability. See Waldron, supra note 7, at 105–43.
- 19.
I presuppose here the judgment that an injury to someone is an injury to some specifiable aspect of her well-being .
- 20.
A threat, whether conveyed by words or by conduct, can warrant a forcible response—when such a response is a necessary means of defense against imminent violence. But of course a threat that merits such a response must itself be a threat to effect a legally cognizable injury , as opposed to a threat to engage in legal conduct. The latter kind of threat, even if the threatened conduct is clearly immoral, can hardly merit a forcible response any more than the threatened conduct itself would merit such a response. My threat to avoid doing business with Sears, even if my purpose is immorally to pressure Sears to stop hiring LGBTQ employees, can no more warrant the use of force than would my actually not doing business with Sears. Thus, while Jeremy Waldron is correct that some vitriolic, deeply immoral public statements may amount to threats, see, e.g., Waldron, supra note 7, at 1–2, if they are not threats to engage in violence but rather threats to engage in odious but peaceful conduct, they will not merit legal interference because the threatened conduct itself would not merit legal interference. Non-forcible interference by individuals and non-governmental institutions (including government-funded universities ) might well rightly seek to impede this conduct in various ways. A university, for instance, might in some cases suspend a student who had publicly threatened to engage in nonviolent mistreatment of one or more other students with disfavored political or religious beliefs. It might do so precisely in order to stop the intended mistreatment—not to punish the expressive activity. Stopping this conduct wouldn’t be the same thing as impeding the expressive activity announcing or seeking to encourage it.
Waldron , see id., suggests that expressive attacks on what he calls “assurance” to effect injuries that ought to be legally cognizable . Some expressive acts, he suggests, can undermine confidence on the part of particular people (he has identifiable groups in mind) that they will be fully included in, treated as equal members of, their society. The kinds of expressive acts Waldron has in mind are, indeed, frequently wrong, sometimes horribly so. Some of them will amount to threats to commit legally cognizable wrongs, and they should certainly be treated as such. In other cases, however, there will be several problems. (i) In these cases, the threat to engage in conduct that undermines assurance in Waldron’s sense will not be a threat to commit a legally cognizable injury—though it may involve a threat to engage in serious moral wrongdoing. (ii) It may not amount to a threat to commit an injury at all. (iii) It may involve encouragement to engage in wrongdoing or to commit an injury—but not a threat to do so. In these other cases, then legal liability will not be appropriate.
- 21.
Cf. Staci Zaretsky , Did Law School Bullying Contribute to a Recent Graduate’s Suicide?, Above the Law, Sep. 20, 2017, https://abovethelaw.com/2017/09/law-school-bullying-leads-to-recent-graduates-suicide/. Thanks to Jessica Brown for calling this article to my attention.
- 22.
Nourishing a false belief or a negative attitude or focusing on a true but negative belief or a negative attitude about someone is unreasonable for at least three reasons. (1) It may amount to a distancing of myself from a friend to whom I am committed. (2) It may increase the possibility that I will treat the person in question unfairly or otherwise injure her. And (3) choosing to nurture such a belief may involve an attack on one or more basic goods—potentially including the goods of friendship, knowledge , and practical reasonableness —while also, when the belief is false, encouraging the adoption of a habit of disregard for the truth.
- 23.
O. W. Holmes , Jr., The Common Law 3 (1882).
- 24.
I am, of course, entitled in some cases to assume that my conversation partner’s intent is obvious given what she says. If she says, “You’re an idiot!,” I am entitled to assume that she believes I am an idiot. And I might find her believing this might be troubling for sorts of reasons I note above. But I might, for all that, be mistaken. Perhaps, for instance, she is just learning English and has been told by a not-so-well-meaning friend that “idiot” is the English word for “excellent chef.” Or perhaps her tone of voice and the conversational setting of her words make clear to me that she intends “You’re an idiot!” in an affectionately jocular way. In neither case am I likely to respond, nor will it be reasonable for me to respond, as if she had intended to utter a vituperative characterization of me. Thanks to David Gordon for encouragement to think more about this point.
- 25.
To be sure, there might be cases in which I have misunderstood the communicator’s intent but in which her actual intent portends ill for me, or in which the communicator intends no ill-will toward me despite the fact that her non-malicious verbal performance portends ill without her realizing that it does.
- 26.
Perhaps in a rare case, the sensory signals one experiences are so overwhelming as to be debilitating. In this case, the occurrence of the emotion might itself be injurious.
- 27.
Cf. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
- 28.
It is very much to Jeremy Waldron ’s credit that he clearly emphasizes this distinction in arguing that indignity, which he believes can be specified objectively and which need not involve (thought it might be thought predictably to occasion) subjective upset, rather than offense, which is necessarily subjective, that ought to be the basis for the “hate speech” prohibitions he favors. See, e.g., Waldron, supra note 7, at 111–14.
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Chartier, G. (2018). Expression and Injury. In: An Ecological Theory of Free Expression. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-75271-6_3
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