White Men Write the Laws
Verbal harassment is both the most common form of street harassment and the type that is most difficult to regulate and report.
This is in large part because the laws in the United States have historically been written by white, straight men, and often are written and enforced to only protect against the types of violence, harassment, and intrusion that they experience.
Take for example, physical forms of street harassment, they are always illegal and usually something that police will take seriously. This is not because it is street harassment but because the law is meant to protect everyone from basic acts of physical violence.
Thus, in order to anticipate and address this possible gender bias, it’s helpful to be familiar with three key legal concepts and how they apply to street harassment.
1. The First Amendment
State laws meant to protect citizens from any type of verbal harassment are necessarily narrowly defined because they cannot violate the First Amendment to the U.S. Constitution, granting us all the right to freedom of speech. Any law that broadly restricts what someone can say is likely to be ruled unconstitutional in court.
In fact, the United States Supreme Court sets a very high bar against government intervention in the case of the First Amendment, only regulating speech that is clearly intimidating, rather than merely offensive, which is what most street harassment is. In addition, regulations have to be applied in a “content neutral” way that does not target particular kinds of speech.
* In practice, the court often strikes down laws aimed at racist or sexist speech, but, as sociologist Dr. Laura Beth Nielsen’s research has shown, they have upheld laws that restrict panhandling, which is another form of potentially offensive public speech.
* In her study of offensive speech in the California Bay Area, Nielsen suggests this reflects a judiciary that is largely male and thus unfamiliar with the problem of street harassment.
This makes it difficult to prohibit catcalls and other types of verbal street harassment. But the First Amendment is intended to protect our rights in the context of political discourse and democratic debate. It doesn’t mean that we have the right to use profanity or insult each other whenever we feel like it.
2. Reasonable Man
Throughout this guide, you will find laws that include phrases like “a reasonable person” or “reasonable fear.” This is a key legal principle that makes regulating verbal street harassment challenging. These phrases provide guidance for judges and jurors in interpreting the law. Because our laws are meant to be generally applicable to society, they are often written according to how a reasonable person is expected to react to a given situation.
For example, if a law prohibits actions that would make a reasonable person fear for his or her safety, the fact that I was scared by your action is not enough to establish that you broke the law. Your action would have to be something that would cause fear for the average, reasonable person – not just the person that was actually made afraid.
Because the majority of lawmakers and judges in the United States have historically been white men, and white men don’t typically experience street harassment, or if they do, they are rarely afraid as a result, the fear associated with street harassment has not always passed the reasonable man test.
3. Fighting Words
The the fighting words doctrine is another legal principle that makes it challenging to address verbal street harassment. It applies specifically to speech and often employs the reasonable man standard.
Lawmakers can’t broadly prohibit speech, even when it is insulting or offensive to some. However, U.S. courts have ruled that the First Amendment does not protect speech that is likely to incite violence because “fighting words” do not contribute to democratic discourse and because society has a collective interest in reducing violence.
As such, words or language that would incite a reasonable person to react violently may be legally prohibited. Many of the verbal harassment laws included in this guide either refer specifically to fighting words or prohibit taunts, insults, or other language that is likely to incite a violent reaction. Fighting words are typically prohibited by disorderly conduct, disturbance of the peace, and harassment laws.
The fighting words doctrine is problematic for addressing street harassment because, although the words do not have to incite actual violence in order to be considered a violation of the law, the language has to be such that a “reasonable person” would react violently.
* Women – the typical targets of street harassment – do not usually react violently to men who speak to them on the street.
* The kind of comment that might make a man want to throw a punch often makes a woman afraid for her safety, and so she may be unlikely to retaliate with physical force.
* Simultaneously, male law enforcement officers and judges, not typically being targets of street harassment, may not find verbal harassment as alarming, intimidating, or infuriating as women do.
Thus there is little precedent for a judge to see verbal street harassment as fighting words.
It’s Time for the Reasonable Woman
The challenge of the fighting words doctrine has led some scholars to argue for a “reasonable woman” standard: if the average woman would be annoyed, alarmed, or threatened by a particular comment, it should be considered illegal speech. But changing legal precedent takes time, many court cases, and a certain amount of awareness among lawmakers, law enforcement officers, judges, jurors, and other individuals tasked with writing and interpreting laws.
What Does it Mean For You?
In the meantime, this may mean that police officers or legal officials won’t always take cases of street harassment seriously. Sadly, we can’t guarantee that every incident reported to police will result in a positive outcome. But that’s why safe spaces activism — and continuing to report serious street harassment — is so important.
“Hey, baby!” may never become illegal speech, and there are good reasons why it shouldn’t. But the more offensive insults and slurs that street harassers use are likely what a fighting words law would prohibit when directed at a man and so should be equally prohibited when directed at a woman.
By raising awareness about street harassment in a variety of ways, from creative direct action to calling the police, we can demonstrate the violent and inappropriate nature of verbal street harassment. Over time, we can achieve more gender equitable outcomes from our legal system, and we hope to move closer to those outcomes with this guide.
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