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13.

DIGNITY BY RIGHT

FOR ALL THOSE bullies and brutes who cannot resist the impulse to harm another human being with unremitting insults and humiliation, it is a good thing they do not live under the moral and legal maxims of the Talmud—the primary source of Jewish law and theology. Unlike the First Amendment, Jewish law does not have a similar get-out-of-jail-free card for everlasting free speech or an automatic exemption for lethal and malicious slips of the tongue. Most other countries, free societies, too, have a greater appreciation for the damage that can be done by words and signage alone. The weaponizing of “sticks and stones” is unlawful under many legal systems, including in the United States. Taking a bat to someone’s head is aggravated battery. Some legal systems, however, are more progressively inclined to criminalize words used as weapons, too. And boorish behavior unbecoming of an advanced society should not deserve a pass, either.

There is a wonderful Talmudic commentary about the legal implications of causing humiliation in a fellow human being. It is no small transgression. Indeed, it is referred to with the same dramatic impact as if the injured party has been drained of his or her own blood. There is even a physiological demonstration to prove this point. An embarrassed victim immediately turns red-faced after being humiliated—the natural outcome of being shamed, especially in public. Soon thereafter, however, one notices that all color is gone, and an ashen pale complexion sets in. The disappearance of color—the turning to white—mirrors the shedding of blood. It is the look of abject dishonor. The injury has lost its outward manifestation and has now become fully internal. It is no longer capable of leaving a bruise, but there is a good chance that it might cause an ulcer.

A Midrashic commentary (on Jewish scripture) from the Babylonian period, attributed to Rabbi Menachem L’Beit Meir, which has universal appeal since everyone has, at some point, been embarrassed, said that “[o]ne who is humiliated, his face first turns red, and then turns white, because due to the magnitude of the shame, his ‘soul flies away,’ as if it wanted to leave the body…once the blood returns to its source, the face turns white, like someone who has died.” Others attribute a similar commentary to Rav Nachman bar Yitzchak.¹⁰⁹

Talmudic scholars have devoted centuries to examining the legal and moral implications of this tortious act—the humiliation of another person. If blood is shed—internally released and symbolically expelled—then why should humiliation be punished any less harshly than a homicide? Must blood only be splattered on the street before the law takes notice? Yes, of course, a body pronounced as dead is no longer among the living. But that is also true for many people who are, technically, among the living. There are people walking around who have suffered profound emotional damage from humiliation and indignity, betrayal and loss, and although their bodies are in motion, they are not experiencing the full sensations of a living being. Writer and Holocaust survivor Primo Levi once described such damaged souls as the “hollow man.”¹¹⁰ Many movies and TV programs are in vogue about the walking dead. One does not have to be an actual zombie to be incapable of life. There are the lifeless among us who are perfectly healthy in their vital signs. It is just their inner worlds that are numb and without vitality. They are hollowed out, so empty and bereft inside they might as well be dead. Scholars of legal history, however, know well that the murder of the soul is not a common law crime. Law professor Patricia Williams noted this absence when she referred to racist verbal violence as “spirit murder.”¹¹¹ The Talmudic mandate that regards the humiliation of another human being as a blood-shedding act is a medieval object lesson in progressive wisdom: Injuries caused to human dignity ought to be taken as seriously as damage done to the body. Ancient rabbis were clearly onto something.

After all, dignity matters. The psychological and physical impact of indignity and the overall damage to the human body and brain that arises from it is considerable, largely misunderstood, and wholly underappreciated.

One of my earlier books, The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right, focused on the legal implications of violence, inwardly experienced, that leaves no bruise to the body but still has devastating effects on human life.¹¹² A more recent book, by psychologist Lisa Feldman Barrett, made a similar claim about the trivialization of emotional harm under the law. “The law protects the integrity of your anatomical body but not the integrity of your mind even though your body is just a container for the organ that makes you who you are—your brain. Emotional harm is not considered real unless accompanied by physical harm.”¹¹³

There is a fundamental paradox at the heart of the American legal system: A good deal of conduct that causes harm to another human being has no remedy under the law because the wrongdoer’s action was verbal, and not physical, in nature. Our legal system has adopted all manner of criminal statutes, tortious liability rules, and case law, and applies each of these rules severely against those who bother to leave physical, material, and external evidence of the damage they cause. Yet, when it comes to wrongdoers and tortfeasors who do violence in more invisible, but no less annihilative ways, there is an indifference—a social allowance and legal exemption—as if such injuries are beyond the capacity of the law to both judge and punish. Harm done by speech does not even rise to the level of a misdemeanor, while even minor damage done to the body can raise all manner of felonious outrage.

How is that justifiable?

This dichotomy between the physical and spiritual spheres of life, the tangible and intangible, the external and internal, and the objective and subjective, has many facets that plays out to dramatic effect under the law. We all know that the legal system conventionally addresses tangible harms and material damages—broken bones, breached contracts, theft of property, homicides, the negligent performance of affirmative duties. These are all crimes and torts that leave demonstrable evidence of themselves.

Morally, however, we are all even more familiar with conduct that results in damaged dignity through overt humiliation and the disgrace that comes with being dishonored. Such actions admittedly leave less of a detectable mark—without the bandages and breakages that constitute the bread and butter of a forensic examiner—but nonetheless still produce even longer-lasting effects on the victims of such behavior. After all, scars fade with time and bruises simply disappear, but emotional harm is never erased from the memory bank and often carries a physical dimension that results in actual sickness. Wounded dignity is relived easily with a casual recall. Dishonoring someone, especially in front of family members and others, causes immeasurable injury far beyond any material harm. Broken bones do not have the same levels of staying power nor do they leave any lasting impression on psychic health—unless they coincide with psychological harm, where verbal violence combines with a physical assault. But in situations where there is just physical injury, the brain does not reexperience or recall the moment of breakage. There are no splints for such injuries. A broken arm by itself, years later, will never become the source of an ongoing traumatic memory. Pain of this sort is rarely remembered. Only the cast serves as keepsake.

And yet the law, at least its American variety, seems to have no interest in making an offense against dignity actionable.

All of this is especially relevant in the realm of the First Amendment. After all, free speech, by definition, allows for the taking of liberties when it comes to expression, and those liberties may cause all manner of emotional distress, indignity, and dishonor. Understood in this way, the First Amendment, freshly minted within the Bill of Rights, was an injury waiting to happen right from the very beginning of the constitutional era. It was a liberty born to create offense and to be used offensively. “Congress shall make no law abridging . . .” is, by itself, affirmative and declarative. Speech is the given; the hold is placed on the government to refrain from the abridgment of speech.

Dignitary rights, by contrast, go unmentioned. They are internal in nature, purely possessory and passive. Dignity is upheld and maintained even for those who wish its diminishment. To sustain one’s dignity, one must be willing to defend it. Speech is asserted, often full-throated, sometimes with voices raised and high-pitched and thrust upon unwilling listeners.

When speech is on the offense, dignity digs in to play defense.

The problem is that America is not one of those societies where dignity is spoken of as a claim of right. The legal implications of trespassing on private property is well understood; trampling upon someone’s dignity sounds more like the making of a nineteenth-century duel—pistols at dawn, count off ten places, turn and fire. Dignitary and emotional harm do not expressly fall under the protection of the Constitution. Unless speech threatens or incites imminent violence, intimidates, or provokes a fight, a speaker is relatively free to insult the dignity of another without violating the Constitution. The word does not appear in any of America’s founding documents—neither in the Declaration of Independence nor in the Bill of Rights.

It is a startling omission. Any society that prides itself on the promotion and preservation of liberty is fully aware that exercising rights is only one phase of the democratic process. Rights fall within a matrix of competing values, and the rights possessed by others must cohere into a workable social arrangement. The social contract has many signatories. All that decorative penmanship sometimes results in sharp elbows. Each has surrendered private rights for the public good and general welfare of society. A truly liberal, pluralistic, and democratic system of law should also expect its citizens to perform reciprocal duties as part of the privilege of possessing those rights. Living within a democracy is more than merely claiming the rewards of citizenship. There are also burdens—surely, the payment of taxes and the defense of the homeland—but also a fellowship among citizens, affording to each other the mutual respect that is an essential consequence of the consent to be governed.

Everyone has the right to expect to be treated with dignity. What is the point of having freedom if it means that more aggressive citizens will use theirs to strip others of their self-worth? Free speech absolutism, as practiced in American society, is inconsistent with a no less important and equally nonnegotiable right: one that protects the intrinsic value of the self. The German philosopher of the Enlightenment, Immanuel Kant, was the godfather of human dignity, elevating it to a categorical imperative. He famously wrote in 1785 that a human being “is not to be valued merely as a means to the ends of another or even to his own ends, but as an end in himself, that is, he possesses dignity (an absolute inner worth).”¹¹⁴ This principle only has meaning if all citizens understand that the dignity of others is not to be trifled with. Damage done to dignity is rarely self-inflicted—it comes from the outside and destroys a person’s inner worth.

Kant wrote that “[e]very man has a legitimate claim to respect from his fellow men and in turn is bound to respect every other.”¹¹⁵ The essence of citizenship hinges on the possession and protection of personal dignity. Kant further wrote that “no man in a state can be without any dignity, since he has at least the dignity of a citizen.”¹¹⁶ For Kant, upholding one’s honor often requires measuring one’s worth in relation to others in the community. That is difficult to do in a society where self-respect can easily be undone by indignity and humiliation. Injury caused by speech—“verbal injuries”—has the potential to strip victims of their sense of honor and do damage to their inherent dignity.¹¹⁷

And yet, the word “dignity” appears nowhere in America’s vaunted catalog of rights.

In 1942, the anti-Nazi dissident group known as the White Rose, comprised of a mere five students at the University of Munich, typed up leaflets with inspiring words warning Germans not to relinquish their liberal, humanistic culture to the death cult of the Third Reich. Jews and the disabled were already being murdered in what was still the early days of the Final Solution. The White Rose’s second leaflet addressed the situation faced by the Jews, but the focus was on something even more elemental than mass murder. “Here we see the most frightful crime against dignity, a crime that is unparalleled in the whole of history. For Jews, too, are human beings.”¹¹⁸ When humanity sinks to its lowest depths, what is noticed first, and lamented most, is the disappearance and annihilation of human dignity.

Law professor Steven Heyman was probably not thinking of the Talmudic injunction not to symbolically drain the blood of another human being through humiliation, but he might as well have been when he wrote, “When the speech degrades the individual in front of others, it also constitutes an attack on social personality that is analogous to defamation.” Yes, defamation, not because of an untruthful accusation, but because what was published or said was dehumanizing—the annihilation of the human personality itself. We all possess an inviolability of personality, our lifeblood and life force, the essence of who we are as individuals. “The law would be deficient if it failed to protect against such affronts, which cause injury far beyond any tangible harm.”¹¹⁹

Dignity and equality are not separate facets of citizenship. In fact, they are codependencies, symbiotic—the diminishment of one calls into question the existence of the other. No one treated with indignity can feel like anyone’s social equal. And true equality requires mutual respect and the dignity afforded by citizenship. Treating people with contempt constitutes a denial of their worth as human beings. And speech that targets a person’s right to equality is anathema to democracy. There is no greater offense to our pluralistic tradition than the desecration of citizenship itself. The psychologist Kenneth Clark astutely observed, “Human beings . . . whose daily experiences tells them almost nowhere in society are they respected and granted the ordinary dignity and courtesy accorded to others will, as a matter of course, begin to doubt their own worth.”¹²⁰

The civilizing of society is like a vast public works project. Roads and dams, bridges and buildings—but dedicated to the dignification of people. One facet of civilization is the expectation that citizens can leave their homes without fear that their property will be invaded or plundered. Another is that, once outside their home, they will not be humiliated and subjected to discrimination and indignity. Waldron explained it this way: “Each person . . . should be able to go about his or her business, with the assurance that there will be no need to face hostility, violence, discrimination or exclusion by others.”¹²¹ It is an implicit right to be protected from social harassment because, without these guarantees, the enjoyment of rights is impossible, and the social status conferred with citizenship is valueless.

Words are both instruments of communication and violence. The First Amendment functions as a smokescreen, the violence of speech obscured in the red, white, and blue haze of patriotic fervor. Only those with a sturdy constitution can avail themselves of this constitutional liberty. If speech came with disclaimer language, many patriotic citizens might choose silence. And for good reason. Law professor Richard Delgado observed that “mere words . . . can cause mental, emotional, or even physical harm to their target, especially if delivered in front of others or by a person in a position of authority.”¹²² And President Lyndon Johnson explained the moral necessity for the passage of the Civil Rights Act in 1964 by saying that “[a] man has a right not to be insulted in front of his children.”¹²³