Free Speech, Gossip, Bullying, Hate Speech

I've written on the subject before,ⁱ but news of the conviction of a Rutgers student for, among other things, a “hate crime,” prompts me to do so again. The student hasn't yet been sentenced, and his lawyer has stated that there will be an appeal, but whatever the outcome, the charges and the trial themselves raise concerns.

The story is clear. The student spied on his roommate – he invaded his privacy – and invited others to do so as well. The spying was done with a live action television camera, which added to the titillation because his roommate was gay, and the viewing was to be of a gay liaison. Ordinarily it wouldn't be much of a story and it's unlikely that a trial would have resulted from it, nor would it have gotten the publicity it's received. But the individual who had been spied on committed suicide. While the accused was not specifically linked to that suicide by the prosecution, the jury was aware of it and it is likely that they were concerned about that result when considering their verdict. So a stupidⁱⁱ college prank – one eventuating in a suicideⁱⁱⁱ – ends in the criminalization and possible incarceration and deportation of an otherwise intelligent student just out of high school – a result which seems to be motivated more by the desire to “send a message” to others than anything else. The accused student invaded another's privacy and publicized aspects of his life that should have been private. His actions were irresponsible and reprehensible – and he should be punished for them in the same way that they are treated in other instances of spying and bullying – but I cannot help wondering about the piling on of statutes forbidding “bias crime” to add on to the guilt. In fact, it is hard for me not to wonder if there is any justification at all in the conceptions of “hate speech” and “bias crime.”

If there is one activity in which we all participate it is gossip. It is not always done with the intention to cause harm, but it is the basis for much of the conversation we have – whether over the telephone, by the water cooler, at a cocktail party, on Facebook, or Twitter. We live on the troubles of others, real or imagined. Soap operas, motion pictures, and television programs that chronicle those troubles fascinate us. And that's the way we view it – as a fascination.^iv We don't consider ourselves as “bad” people because we're interested in the lives and problems of others. We're good, and we know right from wrong. We know, for example, that the paparazzi have no business spying on others. Like the student in this case, they invade the privacy of their subjects and they publicize what they find. But if they have a particularly revealing photo of someone famous,^v we're eager to see it. And if a private investigator^vi produces photographs of some financier's or politician's dalliance as part of a divorce procedure or political campaign, it's sure to attract our attention. It may be invasion of privacy but no matter. They're fair game and we're interested. And if the paparazzi document activities that some view as immoral or outside society's limits, all the better. Unless they involve a “protected” group, in which case they cannot be tolerated. In that circumstance we abhor them. (But we look anyway.)

After all, crime is crime, but making fun of others – especially those sensitive to perceived insults – must be condemned. Fortunately political figures are usually thick-skinned. So late-night TV personalities can make jokes at their expense, no matter what conduct they have displayed. Even though most viewers would condemn the behavior that is belittled – even if they are “biased” against it – watching and laughing aren't crimes.^vii Actually, virtually all humor is at someone's expense. If someone weren't belittled, shown up, or criticized one way or another, it wouldn't be funny. Is the comedian biased? Is he guilty of “hate speech?” Does it matter if the butt of the humor is recognizable or not?

And does it matter if the butt cares? Who decides what is “hate speech?” Is it a function of what the accused says or how the “victim” takes it? And does labeling something as a hate crime^viii depend on the thoughts of the accused, what he says, or is the deciding factor what is perceived by the accuser and the law? The individual convicted was considered as biased because he invaded the privacy of a gay and publicized it. Does a proud gay who “outs” a fellow – who invades his privacy and publicizes it – do the same. Is the act any less troubling to the victim because it was done by someone not biased against homosexuals? And is someone guilty of sexual abuse because a statement he makes,^ix one which might be considered unexceptionable by some, is viewed as derogatory by others? At what point does free speech yield to societal preferences and prejudices? And at what point does a person's thoughts become a crime separate from whatever else he does?

We have moved far from the principles on which our country was established. At least in terms of our laws and their interpretations. As people we're probably pretty much the same. Even if we try to show our concern with insincere proclamations that we assume will only involve others.

i     See “Hate Speech,” which appeared on January 8, 2012.

ii     And mean.

iii    Although it is difficult not to wonder about the underlying mental health of an individual who would ultimately take his own life.

iv    There are many who argue that viewing crime on television leads to criminal behavior. Is the same true of watching such programs? Does it legitimize and lead to the kind of behavior we condemn?

v     Or one not so revealing; or of someone not so famous.

vi    He's not Congress but an individual citizen and not subject to the Fourth Amendment to the Constitution or to the remainder of the Bill of Rights.

vii   It's interesting that in the case described I've seen no mention of prosecutions of those who were titillated by the transmission. Were their “biases” different from the accused?

viii   As opposed to a “love crime?”

ix     Or a calendar in his locker.