Thane Rosenbaum writes: All of us know, however, and despite what we tell our children, names do, indeed, hurt. 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.
We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious?
In the marketplace of ideas, there is a difference between trying to persuade and trying to injure. One can object to gays in the military without ruining the one moment a father has to bury his son; neo-Nazis can long for the Third Reich without re-traumatizing Hitler’s victims; one can oppose Affirmative Action without burning a cross on an African-American’s lawn.
Of course, everything is a matter of degree. Juries are faced with similar ambiguities when it comes to physical injury. No one knows for certain whether the plaintiff wearing a neck brace can’t actually run the New York Marathon. We tolerate the fake slip and fall, but we feel absolutely helpless in evaluating whether words and gestures intended to harm actually do cause harm. Jurors are as capable of working through these uncertainties in the area of emotional harms as they are in the realm of physical injury.
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.
