Mirror of Justice

In the wake of the decision in Snyder v. Phelps, I have been thinking a little about the contexts in which law recognizes the pain that words can inflict.  There are interesting tensions across various spheres of law -- collisions of values -- between the good of speech and the evil of speech.

Consider criminal law.  One might think that criminal law is totally unconcerned with speech -- what difference does it make that someone says something nasty insofar as the criminal justice machine is concerned?  But actually it can make a big difference: words can be highly relevant.  Hate crimes are one example.  So are crimes of heat of passion upon adequate provocation.  The old common law rule was that words alone, no matter how outrageous or provocative or painful, could never transform a killing that would otherwise constitute murder into manslaughter.  That category of mitigation was restricted to very specific situations, one of which was the discovery of one's spouse in flagrante delicto.  Perhaps surprisingly, the modern trend is to admit the possibility that words alone might well be enough to render an ordinary intentional killing a different sort of killing -- one which is punished much less severely.  And states that follow the Model Penal Code approach take an even more liberal view of the evil of words: so long as a jury concludes that a defendant acted with extreme mental or emotional disturbance when he killed, he will be convicted of manslaughter, not murder.  The onset of extreme emotional disturbances is frequently actuated exactly by the infliction of verbal pain.

Why is the criminal law concerned with the infliction of verbal pain?  What is its relevance?  I know of two explanations, both of which may have interesting implications for the law of free speech.  The first is that people who are provoked by words that they find exceptionally painful, and who react to the infliction of verbal pain by killing, are weak people -- people acting out of a kind of akrasia.  Given our collective fallenness -- our post-lapsarian wretchedness -- we can understand empathetically how a person might succumb to the animal urge to violence in response to the infliction of verbal pain; we can excuse such acts.  The second explanation is quite different: the infliction of verbal pain warrants some sort of response, justifies it.  It is wrong to inflict verbal pain, and he who is wronged in such a way is entitled to have the wrong righted.  Of course, he is not entitled to kill the provoker, but his killing in response to the infliction of verbal pain is less wrong -- and therefore more right -- than it otherwise would have been.

Here is the puzzle for the law of free speech as well as criminal law: generally (with only a handful of exceptions -- pornography, fighting words, and a few others), we assiduously protect the content of speech, particularly when it deals with a matter of public or common concern.  We do this because of the goodness of speech -- its familiar and much touted intrinsic and instrumental benefits.  But how do we square this near-absolute protection for the content of speech with the rule that words alone can and often will mitigate murder to manslaughter?

It is often said that the most absolute protection for speech is warranted where the content of the speech concerns political or moral issues.  Speech critical of the United States or the Catholic Church, as in Snyder, for example, merits the strongest and most absolute sort of protection.  But notice that criminal law makes no such distinctions.  If A is an extremely devout Catholic who takes insults about the Church very badly, and B says, "Your church is a damnable abomination" with attendant comments about pedophilia and the like, and A, in response, kills B, it will make no difference at all to the criminal law that B's speech was on a matter of public concern.  The question whether his reactive killing warrants mitigation will be put to the jury just the same as if B had directed some highly personal and embarrassing insult at A. 

The puzzle is that while in the free speech context, we say all of these wonderful things about the value of speech on matters of public concern -- how democracy-enhancing it is, how Millian in all the happiest and most rational ways -- in the criminal law context we are generally inclined to recognize the evil of speech, even speech that is concerned with core First Amendment matters.  The disjunction is most difficult to square up if adequate provocation mitigation is taken to be a partial justification -- if we feel that inflicting verbal pain is a wrong that deserves to be righted, not by exonerating the defendant but by mitigating his punishment.  How could it be right, good, to react violently to something which is goodness itself?  But the tension remains even if we think of adequate provocation mitigation as an excuse.  For if speech is really so good, so truth enhancing, so unqualifiedly beneficial, such an unambiguous blessing, why should an ordinary, fallen man react to painful speech with violence -- and not just any violence, but the worst kind?  Below the glassy surface of our sunny encomia to free speech, especially speech prototypically protected by the First Amendment, our real feelings and intuitions about it are actually much more mixed -- speech can be, and often is, just as evil as it is good.