More Catcalling Debate Room Needed at New York Times
[Update below]
So, the New York Times today has up another in their series called “Room For Debate”. Today’s topic is “catcalling”, and the supposedly relevant question for debate is “Do We Need a Law Against Catcalling?” The ‘debate” is based on the “catcalling video” that has gone somewhat viral the last couple of days. First off, let us stipulate that catcalling is disgusting and reprehensible, and there seems to thankfully be a bipartisan consensus on that. But does the New York Times make it a fair debate when it comes to criminalization of public speech? No, of course not, there are three contributors who specialize in seeking to restrict clear First Amendment speech on this subject against one token policy guy from the ACLU who gives the “whoa, hold on there” position. Hardly a “fair and balanced” fight, but the framing itself makes it crystal clear the Times did not want a fair fight.
Frankly, the fact that the NYT was determined to push the knee jerk attack on free speech side was patently obvious from the fact of their title “Do we Need a Law Against Catcalling” and that is exactly what they put up. Which, considering that the New York Times has led the pantheon of First Amendment law for decades, is a rather astounding and depressing thing. I guess the Times’ love and protection of the First Amendment tails off quickly when their own rear ends and press rights are not on the chopping block. A disturbing position.
This is but the latest example of a growing victim culture trend that is willing to abandon the founding Constitutional principles, and shift inherent burdens of proof, out of emotional angst. There is the attempt to criminalize speech in via so called “revenge porn” laws. There is the astoundingly intellectually backward desire of Ezra Klein to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. And now this.
These are all feel good laws fighting against things that are detestable – revenge porn, non-consensual sex and flat out rape on college campuses, and verbal harassment of women on city streets and in public places. Those are all terrible things that we should all be firmly against, and I am. But just because there are terrible things out there in our world does not mean there is always an appropriate path to eradicate it through ever more broad and vague criminal laws. That is a path our founders took great care to protect against, and one we would do well to keep in mind when emotions try to overcome Constitutional protections.
So, in conclusion, no, we most certainly do NOT need a law against catcalling. Furthermore, in the true spirit of Halloween, I boo and hiss in the general direction of the hypocritical New York Times, who apparently view the First Amendment as protecting them, but not the rest of us non-journalist common citizens.
[Note: It is my belief that this will be one of multiple entries from a group of friends who are either practicing criminal defense attorneys, or heavily involved in the criminal justice system. Our own “More Room For Debate” if you will, because the Times will never seek out actual practicing criminal defense lawyers when talking about, you know, criminal laws. Those in for the debate, or hopefully contemplating it, are: Scott Greenfield from Simple Justice, Gideon from A Public Defender, and Liliana Segura from The Intercept. All of these people, and their blogs, are simply superb, and you should be reading them. When and if they post their entries at their sites, I will update with links here]
Update 1: And Scott Greenfield has weighed in with his take.
you’re right that being able to make sustained, unsolicited, unwanted, and very creepy statements either shouted or spoken at women as they walk down the streets of some cities in the united states is a civil liberty well worth defending. i find your sneering at affirmative consent laws to be remarkable, however. do you really believe that anything other than sustained, active, uninterrupted resistance to sexual advances must be called consent? is it really your contention that the standard of due process in an administrative hearing at a university must be set at the same level as in a criminal proceeding in a court so that someone bullied or intimidated into not saying no to unwanted sexual contact can have no recourse? is it really your belief that rape is an appropriate penalty for having too much to drink at a party?
you’re a remarkable advocate for the right to privacy and the first amendment but it seems you have a blind spot when it comes to rape.
What a scurrilous load of crap. And, no, I never said that “the standard of due process in an administrative hearing at a university must be set at the same level as in a criminal proceeding in a court”, those are patently false words that you have taken it upon yourself to put in my mouth. What I DO believe, however, is that when punitive action, that stands to remove vested interests in a person’s education, scholarship, and lifetime reputation is undertaken by an arm of the government, and that is precisely what state universities are, then there should be basic due process and it is unconscionable to shift the burden of proof to the accused to prove innocence. And your little question “is it really your belief that rape is an appropriate penalty for having too much to drink at a party?” is a ridiculous and insultingly absurd thing to ask. Exactly where do you get off?
There they go, proving Rush Limbaugh right again: “Feminazis”, indeed. Right down to using the Big Lie and mob action to get their way. And it’s of a piece with the speech codes that shut down academic freedom and debate (except when it’s pro-torture, in which Professor Yoo gets to keep his job).
I hold no brief for catcalling, abuse, or sexual assault. But, I have to say, the way things are going the safest course for men will be to just leave the harpies alone. Give them what they want. (But then they’ll be shrieking about “looksism” or “impossible demands for submission to the oppression of so-called ‘good manners'” or whatever.)
Fuck ’em. If they’re such delicate flowers that they can’t stand up to anything that offends their feelings, they should just shuffle off and leave those who can, alone.
when i ran across your statement “. . .to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. ” i interpreted that as meaning you favored a “beyond a reasonable doubt” standard since i wasn’t aware of an intermediate standard between that and the “preponderance of evidence” standard called for in the affirmative consent law and most university hearings, for that matter. if that interpretation was wrong i regret the error.
as for the question you found insulting and absurd i can only say that it refers to the very real consequences of the status quo which you seemed to be defending. if you are not defending the status quo, then again, i regret the error while insisting that the topic of the question is neither ridiculous nor absurd.
If you read the “yes means yes” provisions that are being bandied about, it sets up a scheme where the accuser is presumed credible and the accused guilty. It further severely restricts, if not outright eliminates, the accused right to confront and cross-examine the accuser. Those are procedural due process guarantees against government sanctioned punishment that should never be eviscerated. As to burdens of proof, of course there is an intermediate standard, it is known as “clear and convincing evidence”.
I agree bmaz.
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I’m really uncomfortable with the yes means yes thing, because it isn’t obvious how it is any different from no means no. It is a difficult thing to sort out what happens when there are only two people involved and that fact doesn’t change by swapping the language. The problem on college campuses has a lot less to do with the yes/no conundrum than the fact that colleges go to great lengths to cover up anything that happens on campus that might make them look bad. Until that changes, administrative punishment or prosecution of any sort of crime will remain difficult.
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As for catcalling, how on earth would one even begin to enforce such a law? And where does one draw the line? I agree with Jim that making such behavior socially unacceptable is really the only way to stop this sort of thing.
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No, I also don’t see a need for a new law. What gives me hope, though, along the lines of what I think needs to happen to put these practices in the past is another viral video that preceded this one. The video I’m talking about is the one from the Dallas-Fort Worth airport, where a bigot is verbally and then physically assaulting someone just because they are gay. The second the interaction went physical, though, a guy who looked to be maybe 60 and sported a well-worn cowboy hat immediately jumped in and took the bigot down until police took over.
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The main thing that it takes to stop heinous practices is for other people to make it clear that they will not be tolerated. I’m not saying that all interventions need to get physical (airport cowboy was not justified to go physical until the bigot did), what I’m saying is that calling out bad behavior publicly will go a long way toward ending it.
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Consider one of the more stereotypical situations of catcalling, where a woman walks past a group of men. If one of the men calls out something inappropriate, I look to the day when one of the other men of the group will say something along the lines of “I’m very sorry for what my associate has said. It appears that we can’t take him anywhere.”
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I know this sounds like a lot to hope for, but if a cowboy in his 60’s can stand up for gay rights at DFW, we are getting closer to the day when it can happen.
I think that can happen. Although far from perfect, there is far less such analogous offending speech directed at people of color and the gay than there used to be exactly because of this type of societal learning. Still too much of it, but things are better. This too can improve.
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But we have way too many criminal laws already. For legitimate stalking, physical threats and unwanted touching etc. there are already statutes on the books. “Catcalling” may be crude and vulgar, but it is not, and should not constitutionally be, criminal.
Laws can address discrimination but they cannot address bigotry or misogyny. Laws can address institutions, which are privileged legal creatures in a way they should not address individuals under the Constitution. The New York Times “debate” is a distraction by men to protect men.
Just as we have a white privilege problem in the US, we have a male privilege problem as well. It goes to the assumptions of the implied social contract between men and women, one which hinges on gender roles, gender identities, and social status. When you shut down debate over the appropriateness and cultural restraints on behavior and the social norms of showing respect to other people, of course the only other brake on abusive behavior short of violence is legal. And women in highly misogynistic states are arming themselves.
Males, who dominated cultural and social discourse until very recently, have creating this abusive environment to protect their “club”. They have used the abusive environment for male bonding and rally in defense of jerks as a matter of gender loyalty. Conservatives and other pseudo-libertarians have defended jerks as exercising their freedom.
Someone better come up with the key to cultural change in male attitudes because laws won’t do it, and there is a growing movement among women not to put up with it anymore. And stand-your-ground laws make it possible for the subject of abuse to think they can blow the offender away.
Like i said, the New York Times article is a red herring in the debate.
Yes, TarheelDem, and this street harassment video is a demonstration of both privilege problems. The male privileges explicit, and the video itself a demonstration of white privilege. See Trudy’s enlightening analysis over several hours on teh twitterz
White privilege? They have now admitted that whites were selectively edited out of the video. That’s fairly damning I think.
Yep, I saw that Hollaback was called out on that. And bmaz, I agree with this part of your post, too:
This is news to you? Bradley Manning, Bradley Manning, Bradley Manning. Whose trial NYT had to be shamed into even covering in the slightest, much less supporting the concept of free speech and discussion, informed consent and democracy, transparency.
Maybe this is too much of a driveby response to a first scan of this post, sorry, and since I haven’t seen the videos (js turned off) and I’m leaping to free speech not sex speech or rude speech or hostile speech, so uh oh. But if there’s a law against catcalling, will there also be a law against viral videos of catcalling? Also I don’t recall the First Amendment saying free speech for just journalists, I thought it was free speech for all, me and you, him and her. Wait, I’ll check:
Which I see is your point:
I didn’t read the NYT either, are they asking for a law, not an amendment to the Constitution? What’s up with that?
btw, I very much like your tag “Galactic Stupidity.”
Seems innocuous to me.
Luckily, the NYT will have more real estate for this type of fair and balanced reporting, since they’ve eliminated their Autos section.
i dont think Scott Greenfield sheds much light.
Because obviously words are not human creations, and modified by human interaction /sarc And apparently, a woman’s effort to define the behavior in the video as harassment does not meet with this man Greenfield’s approval. For words mean what this white, patriarchical, born-in-colonialism society (the Ur-Humpty Dumpty) says they are.
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By the way, Nielsen allows that a violation of the law could be a tort, which Greenfield ignores as he misrepresents her position.
Torts are irrelevant to a discussion of whether the same conduct should be criminalized. And, to be honest, what Nielsen is arguing is that it is important to criminalize this amorphous conduct so that after conviction it could be then further leveraged in a civil tort case for damages. What Neilsen wants is to not only pass a vague and over broad law criminalizing protected (even if noxious) free speech so that constitutional infringement can then be even further leveraged against a defendant in a civil court, where the criminal conviction would be admitted as per se evidence of liability. This is an even more heinous and asinine position than just seeking to merely criminalize the conduct. I am sure this is indelicate, but Neilsen can shove that crap.
As to Greenfield, it may not strike you that way, but he is exactly correct in that set, definable, elements of a crime, and objective facts, are what matters , not a victim’s “feelings” or overwrought “emotions”. Sorry, that is just how it is.
Legislating manners is a very slippery slope with a major issue being the offender’s age and another being whether these laws would apply in private as well as in public.
Ludicrous to even contemplate such a thing.
Fundamentalist Muslim culture is way ahead of us on this issue. They solved the problem of catcalling and other unwanted attention from men by means of the burqa. Liberal western societies could learn much from Islamic tradition.
When you’re all done mansplaining the free speech issue, maybe you’ll take the time to look at the real problem of harassment and abuse and its root cause, and then mansplain the way to a real solution.
You could start by looking at the massive volume of material women provided via Twitter hashtag, #YesAllWomen — what is it these women have in common? They live in societies around the globe where women’s rights are suppressed, where their ability to freely walk in public is abridged, their expectation to justice after physical and mental abuse is limited.
This includes the U.S., where complaining about harassment, threats, abuse, and inequity earns us not only rape and death threats in response, but getting shouted down with claims that women are threatening men’s First Amendment rights to free speech. (Example: see the cases of Anita Sarkeesian, Brianna Wu, and GamerGate. ‘But it’s about ethics in journalism,’ my ass.)
If you’re a man making an every day casual trip to the store, do you worry about parking under lighting or near a security camera? Do you carry mace/pepper spray/keys protectively to and from your car? Do you avoid walking alone anywhere? This is not freedom, yet these are examples of the measures women take daily in a so-called free society.
You may make fun of women traveling in packs to the restroom, but we don’t do it just to gossip. We do it because we are often harassed between the restaurant table and the restroom and back again.
We can’t even reasonably go to popular public events like San Diego Comic Con — which published an anti-harassment policy this year for the first time — without worries we’ll be harassed or abused anyhow (yes, at least one assault did happen this year anyhow).
The problem isn’t the First Amendment. The problem is a society where in spite of overwhelming majority control of government, men spend more time worrying about being heard, while ignoring the frequent, frantic complaints of women who’ve been harassed, threatened, and abused.
We struggle to protect ourselves. We can’t reasonably expect to use our First Amendment rights to tell men threatening us to back off, we can’t even use our Second Amendment rights to warn off men without expecting to be punished for it. (Example: compare George Zimmerman’s case to that of Marissa Alexander.)
Women know the truth of it: some persons’ speech is apparently more equal than others.
Nobody denies that. When you are done womansplaining that, you should explain why perceptive feelings should constitute a crime against every tenet of constitutional and criminal law. Sorry, this shit is just insane.
Dude, you have a daughter. Think about it, and all the crap she’s put up with or will have to put up simply for being a girl/woman.
Or ask your wife. You don’t need me to tell you, you need to listen to the women you already know. Believe me, this is a fundamental challenge for the overwhelming majority of men — when we complain about incursions on our rights, we get #NotAllMen. Or “sea lioned” — you just did it to me, asked me to defend my position after I gave you plenty of material (like millions of tweets by women isn’t enough data).
How many women responded in thread here to your post? That should tell you something. We don’t even waste our breath with this stuff most of the time. We roll our eyes at the complaints about men’s First Amendment rights. Many of us don’t even bother to report crimes like rape because we’ll too often be crucified more than the perp.
And then we get caught up in the stupid fallout when more men think they have an answer that only makes women look even worse. I’m not the villain here, nor are the women who are being harassed in this case, we’re collaterally damaged on top of the years and decades of abuse we’re already forced to accept.
Sorry, none of that means dick shit compared to the Constitution and Due Process. If I ever witnesses such behavior at my wife and/or daughter, I might pound some fuckhead, but do I think my wife and/or daughter’s interests are worth a complete perversion of the Constitution and rationality? Hell no.
THIS.
I don’t give a shit what color your skin is: if you’re catcalling at women, or following them down the street, you’re not someone I want to be around. I don’t care how nice a guy you are at home; you’re not someone I want to be around.
And if you think that the only way for me to refuse your unwanted attention is physical force – then you’re not someone I want on the streets, anywhere.
constitution and due process matters to a lawyer.. harassment towards women, matters to women.. is there some place between where each can appreciate the concerns of the other, or is a concern for one supposed to over-ride the other?