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Offensive street speech--racist and sexist remarks that can make its targets feel both psychologically and physically threatened--is surprisingly common in our society. Many argue that this speech is so detestable that it should be banned under law. But is this an area covered by the First Amendment right to free speech? Or should it be banned?
In this elegantly written book, Laura Beth Nielsen pursues the answers by probing the legal consciousness of ordinary citizens. Using a combination of field observations and in-depth, semistructured interviews, she surveys one hundred men and women, some of whom are routine targets of offensive speech, about how such speech affects their lives. Drawing on these interviews as well as an interdisciplinary body of scholarship, Nielsen argues that racist and sexist speech creates, reproduces, and reinforces existing systems of hierarchy in public places. The law works to normalize and justify offensive public interactions, she concludes, offering, in essence, a "license to harass."
Nielsen relates the results of her interviews to statistical surveys that measure the impact of offensive speech on the public. Rather than arguing whether law is the appropriate remedy for offensive speech, she allows that the benefits to democracy, to community, and to society of allowing such speech may very well outweigh the burdens imposed. Nonetheless, these burdens, and the stories of the people who bear them, should not remain invisible and outside the debate.
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.
Thus there is a disjuncture between the constitutional analyses of the courts and legal scholars (both orthodox First Amendment scholars and critical proponents of hate speech regulation) and the views of average Americans. Most of the individuals I interviewed spoke frankly both about the problem of harassment in public and spoke realistically about the difficulties of legal intervention to control it. But the courts have made hate speech decisions with virtually no empirical analysis of the phenomenon or its effects on target groups. Rather than seriously engaging in an analysis of the costs and benefits to society of rules that might limit such behavior, American courts have treated such conduct as "speech," which can be regulated only if the state offers a compelling justification. This doctrinal treatment in effect grants a license to harass. The judicial protection of offensive public speech works to normalize and justify such behavior. Without acknowledging it, courts have placed a significant burden on traditionally disadvantaged groups in our society. Moreover, the judicial treatment of offensive public speech is not consistent across all forms of offensive public comments. The courts have been more tolerant of legal restrictions on begging than on other forms of public speech. Because begging is the one form of public speech that most often confronts more privileged members of our society and because it often is opposed by merchants and property owners, this inconsistency appears to reflect a class bias in judicial doctrine.
It is only through a combination of legal and sociological analysis that it is possible to consider the relationship between the legal consciousness of ordinary people, the judicial treatment of offensive public speech, and the racial and gender hierarchies that offensive public speech reinforces. Through that inquiry we gain new insights into the relationship between law and social hierarchy in the contemporary United States.
THE LOGIC OF COMPARING DIFFERENT TYPES OF OFFENSIVE PUBLIC SPEECH: BEGGING, SEXUALLY SUGGESTIVE SPEECH, AND RACIST SPEECH
I study "offensive public speech." For theoretical reasons, I chose to ask respondents about begging, sexually suggestive speech, and race-related speech between strangers in public places. The decision to ask about sexually suggestive and race-related comments is straightforward, given the salience of this kind of speech in urban areas and their clear connection to race and gender hierarchies. The decision to compare begging to sexist and racist speech requires more comment.
By including begging with sexist and racist speech, I do not intend to make a normative judgment about its relative harm or offense. Rather, because the law gives serious treatment to the harms associated with being the target of aggressive begging, begging raises a number of theoretically driven but empirically unexamined questions. First, do people consider begging to be "offensive" public speech? (The answer largely is no). Second, insofar as they do consider it offensive or troubling, do they consider it problematic in the same way that they think of racist and sexist street speech as problematic? (Again, the answer is no-even those who do find begging troublesome think of it as far less "offensive" than racist and sexist street harassment). Third, by including begging, I am able to ask: How is simply being in public different for members of different social groups? If I did not include some form of unsolicited street speech that frequently targets white men, such a comparison would not be possible. Including begging in the study brings out important doctrinal and empirical comparisons about the nature of "offensive" public speech and how that category is constituted in law and in the everyday lives of individuals.
One could make similar arguments about "harmless compliments" made to women on an everyday basis. Some women may find such comments pleasant or flattering. These difficulties associated with defining "offensive" were among the primary reasons that I chose a subjective approach to the phenomenon. That is to say, the category of "offensive public speech" is defined by respondents' answers to questions about interactions they had with strangers in public places. In the interviews (described in greater detail in appendixes A and B), I prompted respondents to describe pleasant, benign, and offensive interactions. What they reported as offensive is what I counted as offensive. What is offensive to one target may not be to another.
Indeed, my interviews and observations demonstrate that there is a wide spectrum of interactions that are considered problematic by targets and that there is disagreement about what is troubling. One woman may be offended by the same comment that is considered complimentary and flirtatious to another woman. Sexually suggestive banter or flirting may be deemed appropriate when the speaker is of a certain social status or race but deemed inappropriate when the intended suitor is of lower social status or another race. Therefore, conscious and unconscious biases, including racism, that are inherent in targets' analysis of such interactions, are captured rather than controlled for in the definition of offensive public speech for the purposes of this study.
I made the explicit choice to study the targets, as opposed to perpetrators, of hate speech. This approach to hate speech or any other form of prejudice shifts the concept of prejudice from an objective one to a "subjective phenomenon with differences in perceptions and interpretations occurring between observers and actors, among target groups, and even within target groups" (Swim and Stangor 1998, p. 5). The study of targets' perceptions of discriminatory acts (as a subjective phenomenon) is said to necessitate "greater emphasis on descriptive and qualitative data," including "observational approaches in order to fully understand different groups' perspectives" (p. 6). My interviews were constructed to elicit a fuller understanding of the experiences of offensive public speech.
This book addresses three interrelated themes. First, it examines the role that offensive public speech plays in how different social groups experience "being in public." A second theme of the book is legal consciousness. The study of "legal consciousness" explores individuals' experiences with and knowledge of the law and legal norms, as well as how this legal experience and knowledge translate into actions and decisions (Ewick and Silbey 1998). Finally, this book engages with debates about free speech and hate speech. The debates of legal scholars, critical race scholars, and even members of the judiciary have been largely uninformed by empirical data about offensive speech and its effects. This project provides needed empirical data about the contours of this debate and the positions of the parties most directly affected by harassing speech.
Being in Public
One objective of this work is to better understand social hierarchy as it is created, produced, and reproduced in public. The stories recounted by my respondents demonstrate that the anonymity people enjoy in crowded public places makes the public sphere an arena that is uniquely amenable to street harassment. As racism and sexism increasingly are becoming socially unacceptable (at least superficially), public places provide an opportunity for the expression of such comments without reprisal both because the target fears further violence and because the speaker and the target do not know one another.
The book demonstrates how simply being in public is raced, gendered, and classed. That is to say, simply being in public is different for white women, people of color, and those in poverty. My findings show how social hierarchies are reinscribed everyday through racist harassment, sexist harassment, and even through begging.
In its broader social context, hate speech is but one mechanism of subordination that "usually includes a complex, interlocking series of acts, some physical, some verbal, some symbolic" (Lederer and Delgado 1995b, p. 5), and creates "an atmosphere of fear, intimidation, harassment, and discrimination" (p. 5). Modern scholars of prejudice understand that prejudice involves more than individual negative stereotypes and actions. Prejudice involves "most centrally a commitment to a relative status positioning of groups in a racialized social order" (Bobo 1999, p. 447). If prejudice is about relative group position, then public hate speech provides a clear example of one of the ways in which such social hierarchies are constructed and reinforced on a day-to-day basis.
The effects of street harassment are significant. It is not simply a reminder of lower status for the target. Instead, as the respondents articulate, street harassment results in precautions people take to avoid being made a target. Taken together, the study of racist street speech, sexist street speech, and begging provide the basis for a sociological inquiry into the nature of being in public.
In addition to a study of being in public, this also is a study of the sociology of law generally and of legal consciousness more specifically. The sociology of law traditionally has been concerned with the legitimacy of law, which ultimately is rooted in individuals' belief in and acceptance of the legal order (Unger 1985). Legal consciousness recently has become an important topic in socio-legal research because it represents the intersection of law as an institutional force and individuals as knowing agents. The contemporary concern with legal consciousness moves away from this traditional emphasis on the acceptance of official power by individuals to the notions of justice, rights, and power carried in the minds and applied in the everyday lives of individuals. Thus, scholars have begun to inquire whether and why people invoke the law in disputes (Bumiller 1988; Conley and O'Barr 1998; Merry 1990; Yngvesson 1985) and in social movements aimed at broader social change (McCann 1994).
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List of Tables ix
CHAPTER ONE Introduction 1
CHAPTER TWO Law and Power in Sidewalk Encounters: Conflicting Perspectives on Offensive Public Speech 17
CHAPTER THREE Experiencing Offensive Public Speech: The Detailed Calculus for Being in Public 39
CHAPTER FOUR Offensive Public Speech as a Personal Problem, Social Problem, and Subject for Legal Intervention 68
CHAPTER FIVE Ordinary Citizens' Views of the Legal Regulation of Street Speech 98
CHAPTER SIX Power in Public: Reactions, Responses, and Resistance to Offensive Public Speech 133
CHAPTER SEVEN License to Harass 167
APPENDIX A Research Design 181
APPENDIX B Questionnaire 198
Cases Cited 211