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24.

ENTER SCIENCE—PUTTING THE MICROSCOPE TO WOUNDING WORDS

ON THE WEAPONIZATION of words, the law has woefully lagged behind the sciences—specifically neuroscience and cognitive psychology—which have proven the existence of psychological injury that is both real and verifiable. For instance, we now know for certain that words can cause both emotional and physical harm. Studies conducted at such universities as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and New South Wales show, among other things, through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that psychological harm is equal in intensity to that experienced by the body and is even more long-lasting and traumatic. Physical pain can subside; emotional pain, when recalled, is relived.

Pain has a shared circuitry in the human brain, and it makes no distinction between being hit in the face and losing face (or having a broken heart) as a result of bereavement, betrayal, social exclusion, and grave insult. Indeed, research has shown that pain relief medication can work equally well for both physical and emotional injury.

Of course, everyone, to some degree, has experienced the debilitating effects of emotional harm. What these studies have made empirical and undeniable have always been intuitive to most people. The legal system, however, remains stuck in a prehistoric era of mind-body polarity, clouded further by an empty-headed misapprehension of the true consequences of assaultive speech. Brain damage is thought to be impossible without blunt instruments and brain-scrambling concussions. Untangling the mysteries of the mind, and the vagaries of human emotion, has always been regarded as the legal equivalent of crossing the Rubicon. There are endless doubts about the veracity of emotional distress claims. Such injuries are believed to be impossible to evaluate, given that they are entirely subjective. Without the objective evidence of bruises, breaks, or visible wounds, how is a court to judge? How can a jury actually know the extent, no less the truthfulness, of the claimed injury? Claimants themselves are unreliable, overly emotional, ill-suited to the decorum of courtrooms. They are all individuated human puzzles, their secrets under lock and key, each harboring his or her own Rosebuds, to borrow the interior mystery of Charles Foster Kane in Citizen Kane. The very idea of psychological harm has always been anathema to the cool rationality of the law. Finding facts amid such a mess of emotions, and the general unknowability of the human brain, is thought to be beyond the competence of the law. Physical injuries, after all, can be measured; emotional harm has been difficult to determine and can also be feigned.

For decades, the perceived unreliability of the evidence and the mysteries of the cognitive world caused the legal system to regard such claims as headaches. The mind was confounded by each one of the few efforts the legal system made to embrace emotion and the workings of the human brain. This was true not just for psychological harm, but also for mental disease. What is the proper test for determining temporary insanity? A defendant operating under a mental impairment, as a matter of law, cancelled out the necessary guilty mind, mens rea, to establish the crime. He or she did not have the mental capacity to meet the threshold cognitive standard.

Civil cases presented their own mental gymnastics. How to know whether the plaintiff actually suffered from emotional distress due to the intentionally outrageous actions of the defendant? For First Amendment purposes, courts sought to avoid the infernal ambiguities of the human psyche altogether. The easiest way to accomplish that was to simply favor the prerogatives of speakers over the harms they may have caused their targets. Emotional injuries in tort were subjected to onerous evidentiary requirements that made obtaining a legal recovery for psychological harm, absent evidence of accompanying physical injury, a rare occurrence. Meanwhile, nearly anyone who purported to make a political statement or to profess even an inkling of an idea was awarded a public airing, all courtesy of the First Amendment—regardless of the consequences or harm that lingered long after that speech had subsided.

Why this blatant prejudice against the emotional world? It cannot be solely because proving damages was always thought to be more difficult. Doubt and skepticism about actual injury, after all, exists in the physical realm, as well. Rarely is it the case that the severity and degree of the physical injury is beyond reproach. Physical harm has its own doubters, no less or more than what people believe about the emotional sphere. Besides, the unknowability of emotional injury was always exaggerated. Everyone can distinguish mere insults and slight offenses from true emotional assaults calculated to bring about a severe emotional disturbance. The Restatement of Torts even accounts for this distinction between an ordinary insult and the devastation of emotional well-being—which is tantamount to an assault without battery. For the purposes of satisfying the “extreme and outrageous” element in a claim for the intentional infliction of emotional distress, section 46 of the Restatement states that “liability does not extend to mere insults, indignities, . . . annoyances, petty oppressions, or other trivialities.”²³³ There was already language in the law that distinguished a range of emotional responses that seemingly rattled the brains of judges.

Most people know what “outrageousness” looks like when they see or hear about it. In Knierim v. Izzo, a 1961 case originating in Illinois, a woman was awarded damages for the intentional infliction of emotional distress against a man who threatened to kill her husband. The court ruled that “a line can be drawn between slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility.”²³⁴ There was nothing ambiguous about the defendant’s threat. He was clear in his intent, and she had every reason to take him seriously. And such a fear instilled in a spouse could reasonably result in emotional distress without any other overt act taking place.

Juries are often faced with more ambiguity in the physical realm. Finding the necessary facts and assigning the appropriate blame, then awarding damages, presents its own evidentiary challenges. In many of these cases, no one knows for certain whether the plaintiff wearing a neck brace cannot actually run the New York Marathon. One expert is called in to testify that the plaintiff will never again lead a normal life. Another expert, equally well credentialed, testifies on behalf of the defendant and offers a completely contradictory opinion: The plaintiff is a picture of perfect health. The jury is left with insurmountably conflicting questions to resolve. Courts do not refuse to entertain tortious claims for relief simply because the extent of the physical injury is ultimately unknowable—despite expert witnesses and hospital records. Juries do the best they can to discover the facts and determine guilt in criminal cases, and assign fault in civil ones.

Given these acknowledged imperfections in the justice system, the difficulties of deciding hard cases and how they are ultimately reconciled, there is no reason why emotional damage should render the legal system so paralyzed. We tolerate the fake slip and fall—the wheelchair more prop than permanent sign of handicap—but we feel absolutely helpless in evaluating whether words and gestures intended to harm actually do cause harm. Jurors may be as capable of working through the uncertainties of emotional injury as they are in uncovering the circumstances and assessing the damages that occur with bodily harm. Hadley Arkes is correct when he observed that, “[t]he meaning of words cannot be so arbitrary and subjective. They may, of course, be borderline cases that are difficult to judge. But there are borderline judgments to be made in all kinds of cases, including murder, assault, and rape. These situations may pose a dilemma as ‘slippery’ and ‘subjective’ as anything one is likely to encounter in cases of speech or verbal assault. . . . Our standards for recognizing a verbal assault or an act of defamation are no more uncertain than the standards we have for the recognizing of other kinds of assaults. . . . The fact that mistakes may be made at times in judging matters of speech can no more stand as an argument against the law than the mistakes made by juries in cases of murder and assault.”²³⁵

Indeed, it may, in fact, be easier for lay juries to actually judge the severity of violent, assaultive speech than it is to evaluate the wreckage of physical damage. After all, jurors are routinely instructed to find the facts that can establish what actually happened in devastating car accidents. Yet, most people, fortunately, have never been involved in any kind of collision beyond fender benders or rear-end dustups. They sit on juries glancing at trial exhibits with glazed eyes and hearing from jargon-spouting expert witnesses—those professionals who study the physics of physical harm—and on what basis of personal experiences are they equipped to comprehend the extent of the damage? Yet, there are no such barriers to common understanding when it comes to emotional harm. In the world of emotions, we are all experts and geniuses. Even the emotionally crippled and empathically deficient know what it feels like to be humiliated. We all understand the contours of emotional hurt. Our minds are filled with such memories of indignity and pain. Each of us knows something about the trauma of human loss. Everyone has experienced some manner of betrayal and abandonment. In the dark recesses of emotional injury, we all know the difference between an insignificant insult and psychological ruin.

These kinds of emotional assessments are not rocket science. Is the legal system willing to accept that damage done to the human spirit is equal, if not even more severe, than anything that can be done to the human body? If it can, it will finally begin to redress the full sweep of human experience.

And it will add an entirely new dimension to our understanding of the First Amendment.

It is time to stop living with an exaggerated fear of slippery slopes and doomsday prophesies about the death of free speech. The First Amendment is grounded in both law and justice. And there is nothing legally just in a constitutional amendment that enables one group of citizens to make life miserable for vulnerable minorities who are guaranteed equal treatment under the law. Words do cause harm. The First Amendment will surely survive some modest and sensible regulation of speech in order to live up to the promise made to citizens that, by their signing of the social contract, the state will protect them from other citizens who take liberties with their own rights. Assaultive speech is non-speech precisely because there is no meaningful communication taking place. Arkes dismissed the central argument against hate speech in stating that, “it is hard to believe that we would lose our character as a constitutional democracy if a number of cities and towns suddenly took a harder line on the matter of racial and religious defamation. . . . [W]e could survive those mistakes more easily than we could survive the consequences of making no judgments at all, or professing no recognition of any standards by which one could ever hope to judge.”²³⁶

Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.

And it is especially true now, when neuroscience is providing a much clearer picture of the brain at work, of the relationship between psychological harm and physical decline, and the human mind’s cognitive and emotional properties. What brain scans reveal is that emotional harm is not trivial. The damage done from violent speech cannot simply be shrugged off, casually allowed to slide off our backs as the platitude “sticks and stones” falsely reassures—surely the least effective self-defense to psychological harm ever known to humankind.