speech and respect - College of Social Sciences and International ...

The Excesses of State Regulation
was arbitrary. Although motive is central, difficulties of proof led the
government to dispense with intent. Juries shared the government's
belief that penalties were excessive. Prosecution further disseminated
hate speech, generated sympathy for the accused and resentment
against their victims, and left racists unrepentent.
//. Dichotomising Continua, Denying Ambiguity
The formal legal system dichotomises reality into what it expressly
condemns and what its tolerance implicitly approves. It does this in
part because criminal and civil sanctions are so harsh and legal
procedures so onerous that only clear moral judgments can justify
them. Tort liability, for instance, turns on whether or not the
defendant caused the plaintiff's injury, although science describes
causation in terms of continuously varying probabilities of populations
of events. Causal actors have a duty to refrain from inflicting
particular emotional injuries—being forced to witness the death of a
spouse but not the death of a lover or being told of a spouse's
death—although the actual damage varies continuously. Law's arbitrary
rupture of the continuities of experience becomes even more
troubling when the behaviour being regulated is speech. Just as
liberal abstention sends the unfortunate message that the state
condones the harms of speech, so criminalisation punishes behaviour
that is unobjectionable or even praiseworthy while exonerating
greater evils. Enforcement of American pornography laws
illustrates both pitfalls. The federal government entrapped an elderly
Nebraska farmer into buying a single copy of Boys Who Love Boys,
convicting him of a felony and costing him a job as a school bus
driver and the friendship of neighbours. At least four of the nearly
150 men convicted in this sting operation committed suicide. 10 By
contrast, New York State, with a population of nearly 20 million,
made only 23 felony arrests during a recent six-year period. Two of
the even rarer convictions involved a Rochester man who gave
neighourhood children photographs of himself having sex with a
dog. 11
Every attempt to dichotomise speech is fundamentally flawed. 12
Gloria Steinem, who once equated Playboy with Mein Kampf,
sought to evoke the shade of Oliver Wendell Holmes by insisting on
the "clear and present difference" between pornography and
erotica.
86