Thane Rosenbaum, a law professor at Fordham Law School, has published a commentary for the Daily Beast that has Nazis painted all over it, yet it actually has nothing whatsoever to do with, well, Nazis. This emotionally digressive piece is Rosenbaum’s personal proclamation that a democratic and civil United States should rethink the First Amendment and instead of protecting free speech, government should try to measure “social costs” that are deemed to be injurious to others. He champions the cause that government should assume the role of regulating, or making criminal, the use of speech that invades the emotional space of others.
So therefore, emotional harms – one person’s subjectively-based perceptions – should be equated with physical injury, which requires force, or an act of aggression. He writes:
And recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in 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 emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic. Physical pain subsides; 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. Emotional distress can, in fact, make the body sick. Indeed, research has shown that pain relief medication can work equally well for both physical and emotional injury.
Professor Rosenbaum goes on to say that a civil society should protect individuals from emotional harm caused by the actions or speech of others wherein the perceived victim is “made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.”
Mr. Rosenbaum, a law professor, manages to write this entire article while escaping the use of the words “private property,” but then again, when the pedagogues of academia precipitate discussion of the First Amendment, the question of property as a basis of free speech is rarely mentioned. Of course, when private property is trespassed upon, there has been an act of aggression, or a crime. However, the ‘violation’ of a person’s peace and sensitivities are not ascertainable and therefore one cannot dispassionately measure that person’s sense of being violated (meaning offended). Yet Rosenbaum seeks to right the wrongs of bad behavior by viewing such behavior through a criminal lens.
Most libertarians are acutely aware of Murray Rothbard’s explication of free speech from “The Ethics of Liberty.” His most basic passage is the following:
Take, for example, the “human right” of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.
I find it disturbing that Mr. Rosenbaum takes to portraying highly subjective emotional sensitivities as being not only analogous to physical aggression, but he also points to the notion that Congress, courts, and cunning lawyers can somehow measure “emotional harm” and criminalize speech or non-aggressive and non-invasive actions that superficially put others in a state of emotional strain.
The overbearing Nazi art gracing the article’s header is, by itself, an emotive maneuver designed to associate all crude and unpopular speech and actions with something that is so easy to abhor: a gaggle of flag-bearing hate Nazis pouncing on our beloved central government’s turf to show support for an egregious dead guy who has become the symbol for all things that demand government action in order to stamp out individually-held hostility by punishing bad behavior as hate crimes.
In truth, an outrageous notion such as criminalizing the triggering of emotional discomfort and couching it as a “public welfare concern” that needs to be regulated and punished is more “Nazi” than the picture the author has attempted to paint for the reader. Just think of the Nazi Special Courts wherein the Reich bypassed conventional legal channels in the existing courts by creating special jurisdiction for declared “war crimes” that allowed the Reich regime to be free of judicial constraints so that it could arbitrarily silence speech that dissented against Reich totalitarian policy; questioned the fascist economy and takeover of private interests; or engaged in unregulated, unapproved radio broadcasting.
So consequently, Mr. Rosenbaum advocates for a United States Special Court to mimic the courts created by the Nazi regime as an antidote for all the horrible stuff that a few Nazi types, anti-gay loonies, and racist protestors project upon a peaceful populace that can simply choose to walk away and not listen.5:39 pm on February 5, 2014 Email Karen De Coster