Constitutional Law Recently, I learned of two conversations that captured my attention. To protect the innocent, I will alter the names, the number of participants, and other identifying aspects of the conversations, as I understand them to have occurred.
To reduce the abstraction of this discussion, let us turn to the conversations. He was quite fired up about the app, which he said was a platform for people to report that they were raped at a fraternity house. As Thor puzzled over what purpose such an app could serve, he became incensed when talking about the users of the app who would lie about rape and thereby inflict harm on the named fraternities.
It is difficult to hold people accountable for their lies, he explained, when those people remain anonymous. Arya asked Thor why someone would falsely claim to have been raped at a fraternity. Thor paused for a moment and then replied that fans of one fraternity might submit lies to hurt another. Once the second became known as a place where rapes occur, women might stop visiting the victimized fraternity on bad information.
It would call into question every online forum that people consult when assessing a business or destination. Proprietors of hotels, for example, could anonymously go on TripAdvisor and falsely claim that a competing hotel in the same city had bed bugs.
And yet Thor had never before expressed a concern to Arya about these or other online forums. His worry appeared limited to the app for rape victims calling out fraternities. After thinking for a few moments about how to hold people accountable, Thor expressed an idea: Waldron acknowledges that current First Amendment doctrine would not allow for a prohibition on group libel, but he argues that such a prohibition might offer a positive benefit over our existing law.
And in one old case, Beauharnais v. Illinois , the Supreme Court indicated approval for it, though First Amendment doctrine when the Court decided Beauharnais was far less protective of speech than it is now.
It could involve a garden-variety libel complaint by the fraternity association itself against the app, claiming that the app had publicized a false accusation. The availability of any defamation suit, whether criminal or civil, necessarily threatens the freedom of speech. Knowing that if you say something, however accurate, you run the risk of having to defend an expensive lawsuit for defamation, could easily deter you from speaking.
Yet the US Supreme Court has identified a list of current exceptions to the freedom of speech, and regular defamation appears on that list. Group libel and other hate speech do not. Note the fact that the hypothetical action for group libel would aim to protect oppressed groups from such calumnies as the blood libel. The blood libel was a defamatory story that Christians in the Middle Ages and even into the twentieth century would sometimes tell about Jews, claiming that the latter used Christian blood to bake Passover matzoth.
Declaring rape complainants liars is a kind of group libel against women , one that has found fertile and nurturing soil in American law. To be sure, anonymous accusers could be male or female, but the assumption that rape complaints are false affects women disproportionately.
In conversation 2, Arya and Thor discussed an offensive skit that some fraternity brothers at a nearby university had put on. The skit apparently included racial, ethnic, and anti-Semitic slurs. After the fact, members of the fraternity claimed that the skit was actually a parody of racism and anti-Semitism rather than an expression of such sentiments. But neither Arya nor Thor appeared, prior to conversation 2, to have heard anything about the skit being an alleged parody, so I will treat it as an actual offensive skit for purposes of this discussion.
And though the school in question is private, Thor proposed that he and Arya discuss it as though it were a state school, which would subject it to First Amendment freedom of speech requirements. Because the fraternity has a relationship with the school, the school can condition the continuing benefits that go with that relationship on adherence to the sorts of anti-discrimination norms that employers impose on their employees.
The Supreme Court apparently regards actions for hostile environment sexual and racial harassment as falling outside the scope of free speech protected by the First Amendment. Indeed, for a state school to allow an affiliated fraternity to create a hostile environment for nonwhites and non-Christians could violate the Equal Protection Clause. The law governing speech and competing interests can thus accommodate various concerns raised in both conversations. If people falsely claim rape, there is probably recourse to an ordinary defamation suit.
And if people want to shut down an offensive skit in a fraternity, they can probably do so without violating the First Amendment. But putting aside the doctrine, we can see that Thor had very different reactions to the two scenarios. The racist skit, on the other hand, was free speech, worthy of protection, and vulnerable to some clown who wanted to classify it as conduct and thereby facilitate unprincipled censorship.
Selective Empathy What is the common denominator here? It is not free speech. Thor readily invoked free speech for the performers of a racist and anti-Semitic skit at a hypothetical state university fraternity, notwithstanding the suffering that such performances are likely to inflict.
The common denominator for Thor thus appears to be that fraternities are the victims with whom he sympathizes. What am I suggesting here? Am I saying that Thor condones rape or shares the prejudices of racists and anti-Semites? If Thor were convinced that a rape took place at a fraternity perhaps because a video recording existed , he might well condemn it.
Thor is also not someone who uses racial slurs at least not in front of Arya. What, then, explains the inconsistent positions that he took in the two conversations? Professor Randall Kennedy of Harvard Law School developed this concept to account for attitudes that correlate with race in a somewhat unpredictable fashion.
In the Baldus Study , a group of scholars found that capital sentencing varies with race in the death penalty context. Professor Kennedy proposed that white juries were imposing the death penalty when they felt most outraged by a murder, and that tended to happen when the victim of the murder was white. They identified with white victims, victims who looked like them, and they accordingly became filled with righteous anger and empathy as a result, expressing those feelings with capital punishment, even if the perpetrator was also white.
African American victims may thus have inspired less white juror righteous anger of the sort that would yield a sentence of death. Though this is certainly objectionable, it makes it more challenging to argue that a defendant is the victim of racism and racial animus. As Professor Kennedy put it, the problem is not so much that some defendants are getting sentenced to death which they deserve, by hypothesis, because of what they did to their victims as that other defendants the ones who killed African American victims are not.
The theory of selective empathy may have relevance for the two fraternity-related conversations. A rape app that allows victims to call out their assailants or the places that host those assailants sounds like a feminist phenomenon, in the tradition of MeToo. It permits women to bypass the traditionally male avenues for seeking redress after an acquaintance rape, avenues that regularly shut down the complaints.
In both cases, white males suffer at the hands of those at the margins, and Thor may have an easy time identifying with that suffering, because he could imagine being falsely accused of rape or being unfairly accused of racism. He may have a harder time imagining being raped or being victimized by racial hatred.
Though seemingly about free speech, the second conversation was, to Thor, about silencing white men who had offended those outside of their circle. And though seemingly about a rape app, the first conversation was, for Thor, about hurting fraternity brothers without someone or something to weed out the many false complaints of rape. No one, I would readily acknowledge, is immune from the tendency to see free speech through the lens of her own identification.
I would be far more likely to want to protect speech describing what people inside a slaughterhouse do to the animals, notwithstanding employment agreements not to speak, than to want to protect speech describing what providers at an abortion clinic do to the fetuses. And if white men feel offended by something that women of color say, I would invoke free speech much more readily than I would if we were discussing a racist rant by a white male. Knowing this about myself, I would focus on the fact that there might be no principled reason to distinguish between the speech in the various cases.
I hope, as a result of thinking critically about the parallels between the situations, I would recognize that all of the speakers may be entitled to protection, even if I tend to find the grievances of one side of each battle more compelling than those of the other. Or I might identify real distinctions, after having considered the possibility that I am simply acting on selective empathy.
My hope is that, after we have all had our initial, reflexive responses to a situation, everyone is willing to reflect on the pretextual nature of so many free speech arguments. For me, this counsels humility and circumspection.