Earlier this week, I argued that verbal street harassment is a serious problem worth addressing but that criminalizing it would do far more harm than good. I also made brief mention of an article by Professor Laura Beth Nielsen, who argued in The New York Times that when the Supreme Court upheld a ban on cross-burning it set a precedent that should inform the catcalling debate.

What follows is correspondence from Nielsen, who was good enough to contact me about our disagreements. Her focus was free speech and who it empowers:

We tend to think of “free speech” as something that protects the little guy and his unpopular opinions. There is a rich history of that in the United States. But First Amendment jurisprudence as it stands now embodies power inequalities worth exploring. In the context of uninvited speech between strangers in public, we have full protection for the pervasive racial epithets that 81 percent of people of color report hearing on the street “every day or often” and the sexually harassing speech that 60 percent of women report hearing “every day or often.” In both examples, the First Amendment—our very Constitution—protects the powerful’s privilege to harass minority group members.  

Maybe that’s okay because it is the price we pay to keep our First Amendment strong. But consider that the Supreme Court has never definitively ruled on whether begging—another form of unsolicited street speech—is constitutionally protected. Restrictions on begging often are upheld by the appellate courts. When laws prohibiting begging are upheld it is often justified as necessary so commuters can get where they are going without being harassed. So when members of powerful groups in society want free (if annoying, harassing, or subordinating) speech in public, they get to do it. And when powerful members of society want to be able to walk down the street without the inconvenience of being asked for money by people living in poverty, they get that too. This is not about consistent constitutional standards for street speech, it is about the power of the speaker and the spoken to.  

Can we at least agree we favor principled consistency?  

When can speech be limited without violating the First Amendment? Lots of times! When it is conspiracy to commit a crime, when it incites a mob, when it is obscene, when it is a cigarette advertisement, and when the speech is “done with the intent to intimidate.”  The case that established that rule is Virginia v. Black. “The intent to intimidate” must be proved to a judge or jury. You may not like that First Amendment jurisprudence, but that is the rule. And yes, that case is about cross-burning which seems very different to ordinary people than “mere words” but for purposes of our constitution is speech, just like any other speech. And the fundamental First Amendment prohibition is to treat different kinds of speech differently. So if racist hate speech can be restricted when done with the intent to intimidate, so can sexist speech. Can we at least agree we favor principled consistency?

Would this law be enforced? Not much. It would be extremely hard to prove, hard to know who was doing the harassing (as it is often quickly and quietly accomplished or yelled from far away preventing identification), and most women aren’t going to report this. But the law—our law—should stand for equality. Would a law be differentially racially enforced? Most certainly. Racial bias in policing is a serious problem that we must remedy. Rather than making this a racism vs. sexism debate, why not try to promote equality in both arenas?  

I’d start with drug laws. The speech/power dynamic works out in other areas of the First Amendment jurisprudence as well. When campaign dollars were determined to be “speech” in Citizens United, which invalidated bipartisan campaign-finance laws, the wealthy gained a lot of political power.

While I do passionately expect justice from our law, these First Amendment contradictions are not what drive my zeal to end street harassment. When I began researching street harassment more than 20 years ago, I did not expect to see a vigorous debate about the topic in my lifetime. My lived experience of being viciously, repeatedly harassed and sexualized as a young girl taught me what most Americans know and what The Atlantic article says: Street harassment is a social problem, not just an annoyance. It is an exclusionary tactic.

Invoking racist and sexist power in public places subordinates and excludes. It keeps women from going certain places, from taking certain routes, and from full engagement in society. The research is very clear on that. If we value full public, democratic, and civic participation, we have to stop the kinds of pervasive harassment that systematically exclude members of traditionally disempowered groups. And if we value the First Amendment over that, we should at least acknowledge that our First Amendment freedoms come on the backs of those members of society already burdened by hierarchies of race, class, and sexual orientation.

I appreciate the thoughtful feedback, share the desire to end street harassment, and agree that First Amendment jurisprudence sometimes falls short of protecting the speech of disempowered groups (a flaw I'd gladly resolve by interpreting it more liberally to protect the disempowered in the relevant cases). And while I won't rehash my objections to criminalizing speech that doesn't clearly threaten violence, I do want to address one wrinkle in Nielsen's argument.