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  • Writer's pictureJessica Jaymes Purdy

Free Speech vs. Harassment: When Abuse Hides Behind the First Amendment

How Words Can Conceal and Enable Harm: Article 9

Woman with a megaphone addressing an outdoor crowd that includes people carrying signs.  The text on the signs is not legible.

One of the most cynical ways harassers and their defenders minimize abuse is by hiding behind the rhetoric of "free speech." They claim that their hateful speech and actions are merely an expression of opinions and that any attempt to hold them accountable is an attack on their First Amendment rights. When we allow this cynical misuse of free speech principles it only serves to provide cover for continued abuse and to permit the silencing of those who are already marginalized.

To understand why this framing is so problematic, we must clearly differentiate between free speech and harassment. Free speech, at its core, is about the right to express ideas and opinions without government censorship or retaliation. It is a bedrock principle of our nation, enshrined in the First Amendment. Free speech protects our ability to voice dissent, challenge authority, and engage in open discourse.

Harassment, on the other hand, is conduct that targets an individual or group in a way that is intended to alarm, annoy, torment, or terrorize. It involves directed attacks at a specific person or group that causes substantial emotional distress and serves no legitimate purpose. Harassment can take many forms, from verbal abuse and threats to stalking and physical intimidation.

Free speech does not include the right to engage in harmful conduct against others. Your right to express your opinions does not give you license to harass and bully others.

When harassment is excused as free speech, it minimizes the severity and impact of the abuse. It suggests that the harm experienced by victims is not real or serious, but simply the cost of participating in open discourse. It equates being terrorized and silenced with being exposed to opposing viewpoints.

This false equivalence can cause significant harm to victims of harassment. It tells them that their pain, fear, and trauma are not valid or important. It gaslights them into believing that what they experienced was not abuse at all, but a normal part of public debate. It places the onus on them to toughen up and accept mistreatment as the price of admission to the marketplace of ideas.

At the same time, the "free speech" defense gives harassers a rhetorical get-out-of-jail-free card. It allows them to portray themselves as noble defenders of open expression rather than perpetrators of abuse. It enables them to paint their critics as overly sensitive censors out to destroy free speech. It helps them avoid any real accountability for the harm they've caused.

This distinction matters because harassment causes real and serious harm to its victims. Harassment can lead to debilitating emotional distress, fear, anxiety, depression, and even suicide. It can force people to withdraw from public spaces, both online and off. It can lead to reputational damage, loss of employment, and other material harms.

When we fail to differentiate between free speech and harassment, we obscure these devastating impacts. We tell victims that what they experienced doesn’t matter. We make it easier for harassers to evade accountability by claiming they are being "silenced" for their views.

This false equivalency is particularly dangerous for members of marginalized groups, who are disproportionately targeted by hate-based harassment. Women, people of color, LGBTQ+ individuals, religious minorities, and other vulnerable populations are routinely subjected to coordinated campaigns of abuse and intimidation for daring to speak out or simply exist in public spaces.

When this kind of abuse and harassment is brushed off as "free speech," it sends the message that their safety and well-being are less important than their abusers' right to say whatever they want. It reinforces the very hierarchies of power and privilege that enable harassment in the first place. The result is a chilling effect on the free expression of marginalized individuals because it them that participation in public discourse comes at the cost of shouldering the immense emotional labor being abused, demeaned, and harassed.

A society where vulnerable populations are silenced by campaigns of hateful harassment isn't a society that values genuine free speech. The whole point of enshrining free expression in the First Amendment is to foster open, equitable public discourse where all voices have a chance to be heard. When abuse runs rampant under the banner of "free speech," that discourse is inevitably warped in favor of the privileged and powerful.

That's why we must definitively reject the misuse of free speech to avoid accountability for harassment. We must insist that the right to speak does not include the right to abuse or silence others. We must make it clear that we can honor the First Amendment while still holding harassers responsible for their actions.

This will require us to think carefully about how we craft laws, policies, and rules that govern free speech and limit harassment. We must be attentive to power dynamics and disproportionate impacts on marginalized groups. We must be willing to tolerate controversial and even offensive speech while still drawing clear lines around targeted abuse. There will be difficult debates and inevitable gray areas.

But the complexity of this undertaking cannot become an excuse for inaction or equivocation in the face of obvious harassment. We cannot throw up our hands and treat the abuse of the vulnerable as an unavoidable price of free discourse. We must commit to doing the hard work of building a public square that is genuinely open and inclusive.

This means not only cracking down on harassment, but also being intentional about fostering a culture of good-faith engagement in differences of opinion. It means lifting up the voices of historically excluded and marginalized people. It means modeling respectful dialogue.

At the same time, we must clearly define what harassment is and is not and what protected speech is. The line between the two is not always clear, and we must be wary of creating a public sphere where only "safe" opinions are allowed. Figuring out where to draw these lines is difficult and will require an ongoing, good-faith dialogue.

But ceding the very concept of free speech to those who wish to abuse others is untenable. We must be able to protect both robust free expression and the basic human right to be free from abuse and harassment.

This is why it's so important that we set a firm clear boundary that says free speech ends where harassment begins. Yes, people have the right to hold and voice controversial views. But they do not have the right to weaponize those views to terrorize and silence others. Protecting free speech does not mean giving harassers free rein to abuse with impunity.

Instead, we must recognize that true freedom of expression depends on our ability to prevent and punish harassment. It requires creating and enforcing clear policies against abusive conduct on social media platforms and in other public spaces.

It also means being willing to condemn harassment even when the harassers cloak themselves in the mantle of free speech. We must unflinchingly hold the line between legitimate freedom of expression and harassment.

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