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.

Gossip

I saw a newspaper article recently in which two writers accused an educator of psychological and physical abuse. The evidence presented suggests that the accusations were true,ⁱ but that's not the point. Clearly the article was exciting. It was an exposé that, by its front page placement, was sure to attract readers. The content can only be described as lashon hara (gossip – literally “evil speech” in Hebrew) and the accuracy of the information doesn't change that.ⁱⁱ

Whether true or not, the article must have been harmful to the individual accused – even if he was prepared to shake it off. And it certainly raised questions for me about the writers. According to the Talmud,ⁱⁱⁱ the spreading of lashon hara “kills”^iv three – the accused of course, but also the speaker and the one listening. The letters in response to the article make it clear that there were many who were damaged by “listening” – not a big surprise when dealing with a front-page exposé. Some supported the accusations, and some were hurt by them. In fact, one of the letters contained accusations against another party – one not mentioned in the original article – against whom similar accusations were made.

There are authorities who deal with abuse, even in the country – not ours – where the alleged actions were said to have occurred,^v but there was no evidence that the article's authors had contacted them.^vi More likely they probably believed that their article would provide the information needed by those who were able to correct the situation and the publicity would force them to do so. And the authors would probably argue that those capable of correcting the problem were aware of it and didn't act, so that the publicity was warranted and no purpose would have been served by their going to those authorities. Moreover they claim the abuse is widespread, and that it is largely accepted and ignored by all parties.

Perhaps that is the case. But while the spreading of such information (read “gossip”) is occasionally permitted – for example when someone is entering into a relationship that he would avoid if he knew all the facts – the limitations are severe. In this particular article, the authors wrote, “it’s long been an open secret that …,” so it's hard to argue that this article would provide information unavailable elsewhere. Ideally, however, for such an act to be justifiable, there should be no better way to deal with the bad situation than the spreading of that “information.” And, according to Jewish law, the witnesses to an anticipated specific criminal act should have first warned the party that the act was prohibited, and they should have indicated the penalty for it. Perhaps the authors consider their article to be such a warning, although neither a particular anticipated offense is named nor is its penalty specified. Rather, this is the kind of article in which the accused is guilty. There is no presumption of innocence.^vii Unfortunately, that's the way it is with gossip. There's no balance. It's all accusation.

We're all guilty every time we start talking about someone else. Whatever our goals, whether to hurt someone else or to build ourselves up – or even to help someone else – it would be better if we found another way. In the particular case described, the authors might have spoken with the accused, letting him know the charges that had been given them, and allowed him to respond to them.^viii That would certainly contribute to fairness and fact-checking.  And they might have presented the charges to the appropriate authorities and let them know that if the charges were true, and fitting penalties were not applied, this would be revealed to the reading public. There would be no need to name the accused in such a story. The responsibility would belong to those in charge. After all, societies are formed because we are willing to give up some “rights” in order to gain protection from those who would harm us. And that harm is not only physical, but may be psychological or social.

Admittedly, that approach does not sell newspapers any more than not spreading gossip builds up the image of the silent one. All it leaves is the opportunity for someone else to be the bearer of ill tidings.^ix Threatening to expose those in power who are charged with protecting us but do not do so, however, may be a lot more productive in the long run. And speaking to someone of perceived offenses – “chastising the sinner” – may similarly have a greater effect than spreading rumors. It may not work, but it's worth a try.

Next episode: “One Mind With But A Single Thought” – To each his (or her) own.

i     Or at least used to be true.

ii    According to the Chofetz Chayim, the most important authority on the subject, lashon hara can best be described as any speaking about individuals, whether the comments are favorable or not. Favorable statements may evoke negative responses and comments by the listener.

iii    Arachin, 15b.

iv     “is harmful to” probably conveys the meaning better.

v     Although it is claimed that the kind of abuse about which the article is concerned is a general phenomenon, happening in many institutions.

vi    Nor could I find any indication that the matter had been discussed by them with the accused. The article was long and I might have missed it, but I don't think so. 

vii    Even if that should be the case, the retraction will not be as prominent as the accusation and it certainly won't have the same impact.

viii   Perhaps they did, but it's not at all clear from the article.

ix     In the case of a newspaper story, that means that someone else might print first. Journalistic ethical standards probably exist justifying the decision to print first and ask questions afterward – at least that's the impression I get from the media – but to the non-journalist it has the appearance of trying to cash in on gossip.