Friday, April 21, 2006


This recent decision by the 9th Circuit court seems to suggest that speech is not protected when it might potentially "destroy the self-esteem" of someone else. Eugene Volokh comments:

Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.".

This isn't limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a "severe or pervasive" requirement such as that requirement to make speech into "hostile environment harassment" (a theory that poses its own constitutional problems, but at least doesn't restrict individual statements).(Emphasis mine)

Once again, we are witness to freedom being sacrificed on the altar of political correctness. We are to assume that it is a protection of free speech for a certain group (of course, they must be a protected "victim" group to qualify) to march, protest and/or have their viewpoint expressed; but anyone who counters their viewpoint does not have their speech protected because it might hurt the victim group's feelings and damage their self-esteem.

This is not good for free speech. Those who today delight in such decisions simply because they assert that homophobia is "wrong" and must be squashed wherever it pops up, might have second thoughts when the authorities decide that their viewpoint on something is "wrong". For example, imagine the outrage if this T-shirt were banned at a school.

I happen to think that K-12 schools should have some limited rights to control students' behavior and even speech within the school in order to maintain some discipline. Students are not adults; and the courts have generally upheld some restrictions on their speech for this reason. Nevertheless, in the Harper case, it was the school itself that apparently permitted/encouraged the first political demonstration/statement for gay rights, that led to Harper's response. If the one position is ok with the school; then the other must be permitted--or so it seems to me.

Even worse, is the politically correct rationale--the "self-esteem" issue. In a previous post on this topic, I wrote:
For years now, pop psychology and its gurus have mesmerized the culture at large. All their self-help tenets have percolated through K-12 educational curricula; and been accepted wholeheartedly by the cultural elite of Hollywood and the intellectual elite of academia.

The triumvarate of contradictions that claims to be based on "scientific" psychology includes the hyping of (1) self-esteem (increasing your self-worth without having to achieve anything; (2) hope (achieving your goals without any real effort) and (3) victimhood (it's not your fault that you haven't achieved anything or made any effort).

In a previous post, "Self Esteem Is Not Necessarily Good For You" I stated:

The pop-psychology that promulgated the widespread belief that if you nurture kid's self-esteem neglected to mention that if the sense of self was already damaged, all you managed to do was to create a narcissistic was a waste of time and money--as this article reports. If the 19th century was the age of hysteria (and basically, Freud was responding to the excessive sexual repression present in that century); then the 20th was the age of narcissism. In this new century, that narcissism seems to be morphing into an even more malignant sociopathy that pervades society and impacts almost all our social, political, and educational institutions.

Our cultural focus on enhancing "self-esteem" has resulted in the near-worship of emotions and feelings at the expense of reason and thought; on emphasizing "root causes" and victimhood, instead of demanding that behavior be civilized and that individuals exert self-discipline and self-control--no matter what they are "feeling".

We see the people who have inhaled this "psychology-lite" everywhere around us, and in all levels of society. Particularly we can notice it in the elites of Hollywood and Academia; who alternate between acting out their narcissistically empowered superiority -- demanding to be noticed, admired and loved (by you); and playing the narcissistically empowered victim -- demanding their inalienable rights and priveleges (at your expense).

I suppose hyping self-esteem, hope, and victimhood seemed like a good idea at the time. But now that we can see how foolish and deceptive it is---and how ineffective and counterproductive--perhaps it is time to end the influence of pop psychology in public policy?

Or have I just asked an insensitive question that will generate a new group of victims composed of people who feel belittled and hopeless about all this?

You may think that the issue involved in the Harper case is confined to K-12. Think again. Just recently, we had the adult version outrageously displayed in all its glorious feel-good narcissism at Ohio State University where several individual faculty were upset at a librarian who recommended books they disagreed with and charged him with "sexual harassment. The OSU Mansfield faculty as a group then voted to launch a sexual harassment investigation because a librarian offered book suggestions in a committee whose purpose was to solicit such suggestions.

Do you begin to see what a society based on bruised feelings and deficits of self-esteem may lead to? I may seek legal redress myself, since the damage to my own self-esteem is incalculable when morons people who don't agree with me read books I don't like, while wearing nasty tee shirts that hurt my feelings.

This kind of politically correct nonsense is probably the greatest threat to our individual liberty that exists today. I am hardly a legal scholar, but politically correct pop psychology and feel-good pseudoscience seem to me to be dangerous foundations on which to base legal decisions about free speech.

The only comfort is in knowing that the 9th Circuit's Judge Reinhard--who authored the majority decision--has a record of having his opinions overturned by higher--and more sensible-- courts.

The law is reason, free from passion. -Aristotle

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