Issues to Watch

Hey Beautiful or Heck, No!: Street Harassment Catcalling and the First Amendment


Hey Beautiful or Heck, No!: Street Harassment Catcalling and the First Amendment

Andrew Berg*

            French officials are fed up with street harassment and verbal abuses by men.  The trending hashtag on social media in France is #BalanceTonPorc, translated to “Expose Your Pig.”  Dan Bilefsky & Elian Peltier, France Considers Fines for Catcalls as Women Speak Out on Harassment, N. Y. Times (Oct. 17, 2017), https://www.nytimes.com/2017/10/17/world/europe/france-harassment-twitter-weinstein.html?emc=edit_th_20171018&nl=todaysheadlines&nlid=25519591.  Women in and out of the French government are encouraging more women to speak out against harassment they have experienced from men.  Id.  The #MeToo social media campaign in the United States, becoming popular in response to Hollywood producer Harvey Weinstein’s decades-long alleged engagement in sexual harassment, is also contributing to the broader conversation to protect women from male aggression.  Id.  The French social media campaign is moving the conversation towards the creation of a new law that would make street harassment, like catcalling and unwanted verbal behavior towards others, a finable offense.  Id.  Men make women feel uncomfortable in several facets of American society, across generations, races, and ethnicities.  See generally Talia Hagerty et al., Stop Street Harassment, Know Your Rights: Street Harassment and the Law (2013), http://www.stopstreetharassment.org/wp-content/uploads/2013/12/SSH-KnowYourRights-StreetHarassmentandtheLaw-20131.pdf.  While touching another person is an obvious and well-established common law tort, sometimes even characterized as a crime, saying something that bothers another person is not thought of as such an offense in American law.  See id. at 6, 11.  Words alone are rarely a tort, or rarely a crime, but they can be objectionable.  As such, the First Amendment often protects language and words that some find offensive and bothersome.  See id. at 11.

I. FRENCH “PORC”

In France, a bill has been introduced by Marlène Schiappa, a minister for gender equality, to make catcalling a crime.  Bilefsky & Peltier, supra.  Similar laws are in place in multiple European countries, including Portugal and Belgium.  Id.; see also Elizabeth King, 6 Countries That Are Fighting Back Against Catcalling, Complex (Jan. 28, 2016), http://www.complex.com/life/2016/01/international-catcalling-policies/ (listing Belgium, Portugal, Argentina, Canada, New Zealand, and the United States).  Essentially, the existing laws make catcalling a finable offense, in hopes to deter anti-women and anti-gender speech that undoubtedly make women feel uncomfortable and undermine their own rights to walk in peace.  See King, supra; see also Hagerty et al., supra, at 15–268 (analyzing state street harassment laws in the United States).  These laws make words alone, communicated in public, a criminal offense.  See King, supra; see also Hagerty et al., supra, at 15–268.  While a private party still cannot sue based on the catcalling, the State can impose fines, and even sentence the perpetrator to prison.  See King, supra.  These laws aim to modify behavior and can help educate people about ingrained systemic sexism.  Id.  The proposed French law could help increase the number of sexual harassment convictions.  In 2014, a paltry six-percent of French sexual harassment cases led to a conviction.  Bilefsky & Peltier, supra.

II. FIRST AMENDMENT PROTECTIONS

Speech is generally protected by the First Amendment of the United States Constitution.  See U.S. Const. amend. I.  However, in the interest of safety, many localities have statutes, including those on college campuses, that attempt to curtail gendered language that could make a person feel unwelcome or uncomfortable.  King, supra; see also Hagerty et al., supra, at 14 (describing laws that protect harassment that takes place in and near schools and universities).  Nevertheless, many of those American statutes have failed muster, being struck down by courts, asserting “the right, however moronic, to say what we’d like.”  Maureen Sherry, France Wants to Outlaw Catcalling. Here’s Why the U.S. Shouldn’t, Fortune (Aug. 31, 2017), http://fortune.com/2017/08/31/france-catcalling-street-harassment-marlene-schiappa/.

While it is admirable to protect people from feeling uncomfortable, there are times when the First Amendment triumphs.  For example, universities across the country have attempted to implement policies that mimic the proposed French law’s intent, but those policies have failed to withstand constitutional challenges.  See Kathleen M. Sullivan & Noah Feldman, Constitutional Law 961 (18th ed. 2013).  Concern for protecting students on college campuses from verbal harassment was prevalent in the 1980s, and it continues in today’s society.  See id.  Both federal and state courts have held that university policies that curtail speech on college campuses are unconstitutional, mainly on the basis that they are vague and overbroad.  Id.; see also Doe v. Univ. of Mich., 721 F. Supp. 852, 867 (E.D. Mich. 1989) (finding the University’s policy on discrimination and harassment to be “so vague that its enforcement would violate the due process clause”).  A policy at the University of Michigan stipulated disciplinary actions for “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of . . . sex, [and/or] sexual orientation . . . .”  Doe, F. Supp. at 856.  A similar Stanford University policy that was struck down by a California Superior Court in 1995 read: “Speech or other expression constitutes harassment by personal vilification if it: a) is intended to insult or stigmatize an individual . . . on the basis of their sex . . . ; and b) is addressed directly to the individual or individuals whom it insults or stigmatizes . . . .”  Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Santa Clara Cty. Feb. 27, 1995); Sullivan & Feldman, supra, at 961 (quoting the Stanford policy).  These universities were trying to protect their students, including female students, from the aggressions and verbal abuses by men, but were not successful because of the strong free speech culture that persists on campuses, and throughout American society.  Sullivan & Feldman, supra, at 961.  In Corry especially, the court ruled that the overbroad statute infringed on people’s ability to speak “insults that did not threaten to provoke immediate violence.”  Id. at 961–62.  Essentially, speech without the threat of immediate violence is protected speech.  Id. at 961.  This is the standard that courts often use in assessing how much protection the First Amendment affords to speakers.  Id.

A statute that could exist in France would probably have an uphill battle in the United States due to the existence of the First Amendment.  Traditional public forums, including  sidewalks and streets, have been held to allow the broadest and deepest free speech protections.  See, e.g., Cox v. Louisiana, 379 U.S. 536, 554–55 (1965); see also Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“[U]se of the streets and public places [for assembly, communicating thoughts between citizens, and discussing public questions] has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”).  Thus, many manners and matters of speech are enjoyed in American public forums, including the likes of catcalling, name-calling, religious speech, anti-government speech, and more.  Cox, 379 U.S. at 551–52.  Speech can be provocative, prejudicial, and unsettling.  Id. at 552.  States can, however, institute time, place, and manner restrictions as long as proper notice and limited content-neutral restrictions are made.  Id. at 558.

Accordingly, American laws cannot realistically prevent a man from catcalling a woman on the street.  The Constitution’s First Amendment free speech principles are quite strong in allowing the expression of speech that is “porc.”  American society will have to stop this type of verbal harassment without the assistance of state action if it wants to protect women from uncomfortable situations of catcalling and street harassment.  Private suits against catcallers and exposing catcallers and harassers publicly may prove to be the most effective means of changing catcalling culture.

 

*Andrew is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review.  Andrew is also a member of the Royal Graham Shannonhouse III Honor Society. In the summer of 2017, Andrew served as an Equal Justice Works AmeriCorps JD Student interning at the Bar Association of Baltimore City’s Senior Legal Services organization.  Andrew currently works at the litigation firm of Schlachman, Belsky, & Weiner, P.A. as a law clerk.  Additionally, Andrew will be participating in the National Telecommunications and Technology Moot Court Competition, while also sitting on the Moot Court Board.

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