License to Harass: Law, Hierarchy, and Offensive Public Speech

Chapter 1
INTRODUCTION
This guy says to me, "I hate women, they're all sluts." (24-year-old white woman, student, interview #10)

And he said, "I love that smile. I would have liked to have been there this morning when your man put that smile on your face. What did he do to put that smile on your face? I'll bet he fucked you so long you'll be smiling all day." (field notes 1994)

"Monkey for a dollar!" (18-year-old African American woman, interview #54)

I get these comments all the time. Mostly because of the fact that I am a lesbian. When I am walking down the street with my girlfriend we get lots of comments like, "Try me and you'll never go back" or "I can show you things that she can't." (19-year-old Hispanic woman, emergency medical technician, interview #6)

A man says to me, "[H]ey white bitch, come suck my dick." (26-year-old white woman, unemployed, interview #30)
WORDS LIKE THESE are spoken on the streets of America every day. To women, such words instill fear as a possible prelude to sexual violence. To people of color, such words bring the sting of racism, a bitter reminder that racial bias lives on and can surface anywhere, anytime, in subtle or blatant forms. To gays and lesbians such words convey a threat of hostility and aggression if they display affection for a same-sex partner or depart from conventional norms of dress and self-presentation. To all these groups, such words are a deep affront to personal dignity. To the courts, such words are protected speech.
This book examines the dilemma that offensive public speech poses for American society, and in that effort probes deeper questions about the relationship between law and society. Why has this society, which has shown increasing sensitivity to the legal protection of traditionally disadvantaged groups, continued to afford constitutional protection to offensive public speech? What does this policy imply about the relationship between law and social hierarchy in the contemporary United States? Is this policy choice shared by all segments of American society, or do judges, traditionally disadvantaged groups, and traditionally advantaged groups hold different beliefs about the legal status of offensive public speech?
This book pursues these questions through a sociolegal investigation of offensive public speech. In addition to examining the official doctrines of courts and public authorities, it analyzes data from interviews with ordinary citizens about their experiences with offensive public speech, their attitudes about the extent to which it poses a problem for American society, and their beliefs about whether the law should be employed to restrict offensive public speech. These interviews allow systematic comparison of the legal experiences and legal consciousness of different social groups--white men, white women, and people of color.
Important insights into how Americans view offensive public speech and the role that law should play in dealing with it emerge from this analysis. Consistent with other research, I find that white women and people of color are much more likely to personally experience offensive public speech than are white men and that street harassment imposes serious harms on these groups. While experience with the phenomenon varies, there is broad consensus among all social groups that sexist and racist comments in public are serious social problems. There also is considerable agreement that the law should not be deployed to attempt to stop such speech. But the reasons that white women, women of color, and men of color give for opposing legal regulation are significantly different from those offered by white men. Beneath a surface consensus against legal intervention, we see that different groups of Americans have very different attitudes about the law, which are rooted in their experience with the law. In the specific context of offensive public speech, white women and people of color are reluctant to turn to law for help, either because they do not believe the law can help them or because they fear the law would be used against them.
These findings have a larger significance for theories of law and legal consciousness in the United States. Contrary to the popular depiction of Americans as overly litigious, we see here that Americans have a pragmatic skepticism about the law as a remedy for offensive public behavior. In part the attitudes of ordinary citizens about offensive public speech may be shaped by judicial doctrines of free speech. Yet these attitudes seem to be anchored in a lay realism about the law and what it can be expected to accomplish. Only a small proportion of the individuals I interviewed, most of whom are white men, cite freedom of speech as the principal rationale for exempting offensive public speech from legal regulation.