Academic journal article
By Nielsen, Laura Beth
Law & Society Review , Vol. 34, No. 4
The legal consciousness of ordinary citizens concerning offensive public speech is a phenomenon whose legal status has been vigorously debated, but which has received little empirical analysis. Drawing on observations in public spaces in three northern California communities and in-depth interviews with 100 subjects recruited from these public locations, I analyze variation across race and gender groups in experiences with offensive public speech and attitudes about how such speech should be dealt with by law. Among these respondents, white women and people of color are far more likely than white men to report being the targets of offensive public speech. However, white women and people of color are not significantly more likely than white men to favor its legal regulation. Respondents generally oppose the legal regulation of offensive public speech, but they employ different discourses to explain why. Subjects' own words suggest four relatively distinct paradigms that emphasize the First Amendment, autonomy, impracticality, and distrust of authority. Members of different racial and gender groups tend to use different discourses. These differences suggest that the legal consciousness of ordinary citizens is not a unitary phenomenon, but must be situated in relation to particular types of laws, particular social hierarchies, and the experiences of different groups with the law.
"[H]ey white bitch, come suck my dick!"1 "I hate women; they're all sluts."2 "Monkey for a dollar!"3
"You fucking people need to go back where you came from, I'm sick of this, you come over here and think you can take everything away from us."4
I. Introduction When one experiences remarks such as these in a public place, law may be the last thing that comes to mind. However, ideas about law, both conscious and unconscious, shape how people make sense of such interactions, what types of speech they consider problematic, and what remedies or responses they believe are possible. Examining the links between people's experiences with street harassment and their attitudes about its legal regulation can shed light on the roots and consequences of the "legal consciousness" of different social groups.
In this article I analyze the legal consciousness of ordinary citizens by examining how experiences with and legal attitudes toward offensive public speech vary by race, gender, and class. I find that white women and people of color experience dramatically higher levels of offensive public speech and that these experiences significantly affect their daily lives. Yet experiencing harms from offensive public speech does not translate into supporting its legal regulation. Subjects offer a variety of reasons to justify their opposition to the legal regulation of such speech. Members of different racial and gender groups articulate distinctive discourses about offensive public speech and the law that invoke various and competing schemas regarding law. These understandings reflect their prior experiences with the law and their attitudes about the prospects for social change through law. This variation suggests that an explicit comparison of particular legal phenomenon across categories of race, gender, and class provide a more nuanced understanding of legal consciousness.
II. Prior Approaches to Offensive Public Speech
Racist and sexist speech generate much debate about the proper balance between freedom of speech and protection of historically disadvantaged groups from verbal abuse. First Amendment absolutists argue that speech cannot and should not be legally restricted (Post 1991). Critical race theorists argue that racist speech results in substantial harms for its victims (Matsuda 1993), perpetuates inequality, and must therefore be legally limited to realize the equality guaranteed by the Fourteenth Amendment (Lawrence 1990). Cultural theorists contemplate how the performative aspects of speech translate into harms (Butler 1997). …