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23.

“STICKS AND STONES” ARE NOT THE ONLY CAUSE OF SERIOUS HARM

IF THERE IS one industry that knows something about broken bones, it is the National Football League. The thirty-two franchises of the NFL are stocked with gargantuan men who, as little boys, were undoubtedly once told during their more tearful moments of adolescence that “sticks and stones can break my bones, but names can never hurt me.” (Of course, this all assumes that the future professional football player was at least once the victim of a schoolyard bully, and not the other way around.)

It is a wonderful nursery rhyme and probably an effective way to prevent a bloody nose by resolving a conflict with the turn of a childhood cheek. The problem, however, is that very few kids are gullible enough to buy it, and I imagine that even future gridiron greats of the NFL had thought the rhyme to be nonsense, too. Name-calling, and the humiliation that follows such torment, does hurt. While it may not involve the breaking of actual bones, it does result in the brokenness of spirit, with tangible physical consequences. The myth that emotional and physical harms are entirely distinct—and that the former is impossible to verify while the latter is demonstrably more damaging in degree—was always false. And now, thanks to advances in neuroscience and the imaging of the human brain, it is becoming much clearer that emotional injuries are not only verifiable, they produce physical consequences to both the human brain and body.

This medical confirmation that psychological harm is never trivial and that it leads to actual sickness was intuitively obvious, but the legal system was always hostile to intangible harm even though it never doubted that emotional and psychological injury was a reality of life. It was just not one that the law had an obligation to redress. Since the 1960s and the expansion of civil liberties, it has been particularly true that free speech was always privileged, even if it caused harm. Courts did not even bother to question whether words could actually wound. It was treated as a given. As law professor Frederick Schauer said in 2018, “[T]he claim that speech was harmless or casually inert was never true.”²²¹

But such injuries were not considered the business of the court. Priests and psychotherapists seemed better equipped to mollify these grievances. There was scant interest in affording mental peace the same respect as was routinely lavished on the body. Courts generally discredited the possibility that emotional harm could ever be as severe and scarring as physical scrapes that left tangible evidence. And, of course, it never occurred to juries and the judges who instructed them that emotional and psychological harm can actually bring about physical sickness and damage to the body.

Ironically, as technology advanced and society evolved, citizens were given more opportunities to harm one another with words. Today, thanks to the immediacy and reach of the Internet, a person can be attacked by anonymous, venomous trolls repeatedly without any means of self-defense. Reputations can be easily besmirched, if not outright libeled and defamed, resulting in concrete harm. The value of one’s good name is dragged along the digital highway like a dangling muffler. Meanwhile, courts have exponentially expanded the free speech guarantees of the First Amendment, protecting offensive communications with ostensible political messages, while at the same time downplaying the harm these dubious claims to speech maliciously produced.

Not only did courts immunize violent speakers from government regulation, applying the First Amendment as a shield for thugs, it doubled down in the arena of civil actions, with wounded plaintiffs denied recovery for their injuries in tort. Tortious remedies for emotional harm mirrored the liberalized atmosphere for free speech in criminal cases: Whether the government tried to assert its regulatory powers in the interest of social peace or wounded individuals looked to tort to redress the personal, emotional harm they endured, the First Amendment got in the way, protecting the speaker over the one he or she injured. Moreover, should a plaintiff assert a claim for emotional injury in tort without showing physical evidence of that harm, his or her chances of recovery were limited still further. Yet, curiously, even though relief was denied, courts did not dispute that the hurt was real and that the psychological health of millions was being sacrificed to the cause of free speech.

Law professor David Goldberger acknowledged this legal paradox when he wrote, “One of the most puzzling aspects of the judiciary’s stance protecting racially, ethnically and sexually offensive public speech is that it has rarely questioned the validity of the claims of harm. On the contrary, the judiciary has often conceded that offensive speech causes emotional harm while ruling that such speech, nonetheless, is entitled to constitutional protection.”²²²

But now, after taking a time-out, let’s get back to football.

A hard-hitting tackle can surely scramble a brain. The mere expression of words, however, strategically chosen, can bring on an altogether different configuration of cobwebs. Words intended and delivered to cause harm—verbal abuse, assaultive speech, bullying, and taunting—have a way of taking down even the giants among us. Constitutional scholar Alexander Bickel, writing decades ago, was aware that, “[t]here is such a thing as verbal violence, a kind of cursing assaultive speech that amounts to almost physical aggression, bullying that is no less punishing because it is simulated.”²²³

The crushing nature of verbal violence proved to be particularly true for one NFL offensive lineman. One suspects he is not alone. It can happen to anyone. If words can topple a guard or tackle, the behemoths of their sport, then no position player is safe. After all, these men on the offensive line are blocks of granite. Their job is to protect quarterbacks from blindside blitzes and to plow holes through their genetic equals on the defensive line. And yet, despite all that muscle, their skin may not be thick enough to withstand the kind of emotional torment as that which former offensive lineman Jonathan Martin experienced and that led to his shortened professional career.

Indeed, Martin’s aborted NFL legacy demonstrated just how vulnerable even the most imposing players can be to verbal abuse. Surely for most people, the NFL does not conjure a place of rampant workplace harassment. These are, after all, the most selective of jobs with the most specialized of physical requirements. Martin, for instance, who at the time played for the Miami Dolphins, stood six feet five inches tall and weighed 312 pounds. He had been an All-American at Stanford University before entering the professional ranks. All those natural talents, however, did not prepare him for a foe that ultimately chopped him down to size in 2013, shredding him of his dignity and stripping him of the confidence and will to play the game. He played only two more seasons, walking away from the sport not because of a physical injury, or even an illegal block, but on account of a bully who never outgrew the schoolyard and brought his dirty game with him to the NFL.

One of Martin’s teammates, Richie Incognito, a self-styled friend, repeatedly texted and taunted Martin into an early retirement. These messages from a teammate were of such venomous, unremitting proportion, he lost interest in the game of football. He did not finish the season. Along the way, he probably also developed a new opinion about the so-called camaraderie among NFL players. (An investigative report commissioned by the NFL determined that two other teammates, John Jerry and Mike Pouncey, joined in along with Incognito as “equal-opportunity harassers.”) Martin was first hospitalized. He then checked himself into a mental health facility. His tormentors were traded to other teams, and within a few years some were finished with professional football, too.

Among the many personal yet lethal texts he received and the verbal abuse he endured, unendingly delivered over several seasons, are these examples:

There were running jokes about shooting black people and about slavery (Martin is African-American.): “Hey, wassup, you half-nigger piece of shit. . . . [L]iberal mulatto bitch. [S]hine box.”

There were some that included graphic, sexually explicit comments about Martin’s sister: “We are going to run train on your sister. . . . I am going to fuck her without a condom and cum in her cunt. . . . I am going to bang the shit out of her and spit on her and treat her like shit.”

Regardless of one’s feelings about free speech, which does not apply to friendship, it is pretty clear that most people would not wish for their friends to speak so freely. Actually, they probably would wish for an entirely different set of friends. With friends like these, it is better to surround oneself with more civilized and buttoned-up enemies.

During this period when Martin was being tormented by his teammates, he acknowledged to his mother, in a text, that this was not the first time he had been bullied: “I used to get verbally bullied every day in middle school and high school, by kids that are half my size. I would never fight back. Just get sad & feel like no one wanted to be my friend.”

The investigative report commissioned by the NFL stated, “The behavior that occurred here was harmful to the players, the team and the league. There are lines—even in a football locker room—that should not be crossed, as they were here.”

The irony was that all of the players involved in this cruel excuse for sportsmanship were offensive linemen, whose job it is to provide protection for their own teammates. For some reason they felt less protective toward one another, at least when it came to the emotional health of one of their own.²²⁴ To demonstrate the everlasting nature of psychological harm, long after broken bones are fully healed and the mind has well forgotten the sensation of ordinary, mendable breakage, the Martin case offers a poignant and unfortunate postscript of just how serious emotional injury can be. On February 23, 2018, years after Martin had retired and in the wake of a number of mass shootings at schools and places where large crowds gather, he was detained by police for posting a photo of himself on Instagram with a rifle and a message that read, “When you’re a bully victim & a coward, your options are suicide, or revenge.” Also included in his message was the name of the high school he had attended. The authorities decided to close the school on the day that Martin was questioned by the police.²²⁵ Arguably, had Martin not been bullied in high school and even more so as a teammate with the Miami Dolphins, his playing days may very well have continued, and his mental health would likely have been as robust as his body.

This is just one example of the way words can wound. In the world that exists outside of classrooms and think tanks, where the stakes are much larger than the antics of faculty politics, people cannot afford to live under the received wisdom of nursery rhymes alone. Nor can they shield themselves from emotional turmoil by simply averting their eyes. If the pen is, indeed, mightier than the sword (another popular aphorism that probably is not true either), then the words that spill forth from both pens and mouths, composed and spewed for the purpose of causing harm, are how those blows are delivered. And they can lead to the same consequences that are generally outlawed when the damage is done in more overtly conventional and physical ways—when words are not elements of the crime.

In a case decided in the summer of 2017, a Massachusetts court ruled that words alone, without any “physical” conduct, can constitute the predicate act that causes a crime. On July 14, 2014, Michelle Carter texted her boyfriend, Conrad Roy III, urging him to commit suicide. Their relationship included regular texts and Facebook messages. Both were emotionally troubled. Roy contemplated suicide and, finally, on that fateful day, he pulled into a parking lot and connected a pump that brought carbon monoxide into the cabin of the car. Carter egged him on when he started to waver, when Roy, in fact, panicked and bolted from the car. She wrote, “I thought you wanted to do this. The time is right and you’re ready, you just need to do it!” He regained his nerve, returned to the car, and soon died from asphyxiation. The court found Carter guilty of involuntary manslaughter, a pretty astonishing and highly unusual outcome. Most prosecutors in such a case would have pursued the far lesser charge of harassment. After all, the defendant was nowhere near the crime scene, and the blood on her hands was less apparent for a legal system that likes to see more bodily contact. Texting entreating words on a cell phone does not leave the obvious fingerprints of a murder.²²⁶

Many questioned whether the conviction violated Carter’s First Amendment rights. After all, the scope of her entire conduct was limited to words—no other action took place. She was hardly an accomplice in the traditional sense—handing him pills, sharpening a knife, driving a getaway car. Did she not have the right to offer an opinion to her boyfriend, encouraging him to do what he had set out to do, provided she take no other independent physical action of her own? Here, the government regulated her speech simply because it did not agree with the content and viewpoint of what she had to say. Such interference with a speaker’s point of view violates the First Amendment. Carter expressed an opinion, albeit not a political one, to a person who was a willing listener, and he regretfully acted upon it.

Of course, it is not clear that the Framers of the Constitution had these sets of facts in mind when they crafted the Free Speech Clause. They intended freedom of expression to furnish society with ideas that served the public good, not with advice on when to take one’s life. Emboldening boyfriends to commit suicide surely was not on their list of essential liberties for a new nation. And Carter’s text messages offered such “slight social value as a step to the truth,” under the Chaplinsky doctrine, that it is not clear why this claim to freedom of speech is any less compelling than cross-burnings or marching neo-Nazis. Nazis were granted the right to march in Skokie under the full protection of the First Amendment. A troubled young woman could not rely on the same liberty when the legal system convicted her of sending a text to her boyfriend.

Constitutional scholar Lawrence Tribe made a distinction in 1978 between words that are expressed as “triggers of action” as opposed to words used as “keys of persuasion.” The former is “not part of human discourse but weapons hurled in anger to inflict injury or invite retaliation.” In such situations where words are being offered not in the spirit of debate but with the malice of bringing about harm, “[m]ore talk” won’t “cure the injury.”²²⁷ Words used as “triggers of action,” for instance, like the “incitement of imminent lawlessness,” under Brandenburg v. Ohio, do not benefit from the safeguards of the First Amendment—nor should they, because they are delivered to provoke an action that will injure rather than persuade.²²⁸ This makes sense if the original intent of the First Amendment was to create a climate of civilized debate where words are introduced as “keys to persuasion.” In the case of Michelle Carter, her text messages can only be understood as “triggers of action,” calculated to bring about her boyfriend’s suicide. Perhaps that is why the court found no infringement of her speech in convicting her of involuntary manslaughter. Her words alone represented the overt act that both initiated and constituted the crime. Nothing else physical or tangible needed to occur. Cheerleading in such a deadly manner in cyberspace disqualified her from receiving the protection of the First Amendment.

In recognizing the violence that can arise from speech alone, Commonwealth v. Carter is simply ahead of its time in fully appreciating how words can lead to the manslaughter of another human being. Words alone can furnish all the elements necessary to complete a crime. In explaining the principles of Chaplinsky, law professor Hadley Arkes wrote in 1974 that, “certain forms of speech or expression may constitute an assault in themselves, even if they are not accompanied by overt acts that involve a physical assault.” The overt act is the speech itself.²²⁹ Recall that in Chaplinsky, the Supreme Court delivered what was arguably the most imaginative, if not provocative, phrase ever written in connection with the First Amendment: that there are some words “which by their very utterance inflict injury.” The very utterance of the words creates the causal link between the act and the harm. Was that mere dicta, or is there real legal authority to this concept of per se injurious words?

Simply by speaking certain words—depending upon the context in which they are uttered, and to whom—harm can occur. This goes beyond the proscribed categories of speech that the First Amendment would not protect under Chaplinsky. Justice Murphy also introduced a concept of strict liability for certain utterances. They are regarded as vocal nullities, problematic exclamations, or verbal detritus, causing harm at their inception and alien to anything that qualifies as an idea. In explaining why such injurious speech should be barred from First Amendment safeguards, Murphy deemed these words as being without “ideas” or “social value.” Some words simply and categorically serve “no essential part of the exposition of ideas” and are “of such slight social value as a step to the truth” that they undermine the preservation of civil society.²³⁰ Whatever value they might have is offset by the broader social interest in maintaining “order and morality.” Injurious speech impedes the fostering of any climate of civility.²³¹ As law professor Rodney Smolla observed, “What makes Chaplinsky quite remarkable . . . is the suggestion that there are occasions when words alone may inflict injury that society may redress without abridging the guarantees of the First Amendment, including injury to society’s moral fabric.”²³²

The quality of the words spoken—and the manner in which they are delivered—is an important and permissible limitation on the First Amendment. Yes, quality—a standard of good intention, an aspiration of refinement, an invocation of seriousness, a seal of approval that what is being offered is worthy of entering the public sphere. What degrades the quality of speech and causes it to miss the mark of acceptable discourse is any intent to bring harm to the audience. In the permissive atmosphere of free speech absolutism, where the government’s role is only in safeguarding speech, there is little thought given to protecting society from unsafe speech. This imbalance demonstrates how far we have deviated from a commonsense understanding of the First Amendment. Words should not be so casually introduced into the mainstream without sufficient attention to quality control and warranties of fitness. Like food and drugs, there is spoilage in speech that can be dangerous in the wrong dosage. Commonwealth v. Carter is an example of how words can be part of the chain of events that result in manslaughter.

A subcategory of murder is one thing, but what of the more bloodless emotional injury? A foundational question must first be introduced: Should damaged dignity and psychological harm even be addressed under the law? These are areas that continue to bedevil the legal system. In the ever-narrowing formulations of legal analysis—the dicing and slicing of court precedents—redressing emotional pain, especially when it was brought about by words, is a conundrum without a clue.