Pro-Life Speech in the Era of “Trigger-Warnings”

By Clare Cortright

A new tactic to censor or suppress pro-life speech has emerged from the far and not-so-far left over the past few years. The tactic demands that speakers self-censor, or if necessary be censored by others, to accommodate the psychological sensitivities of those who are (or may be) listening. This political fad aims to redefine what is commonly accepted in our culture as “offensive” to include nearly any speech on controversial topics and to further enshrine those new standards in law. It should be resisted.

Many are aware of one manifestation of this political fad: the so-called, “trigger warning” policies on college campuses. A trigger warning is a disclaimer given by a speaker to the effect that the speaker is about to say something that may cause a listener to have a powerful, emotional reaction. The ostensible purpose of the trigger warning is to allow a single listener the opportunity to become prepared for what she is about to hear or to exercise her prerogative not to listen at all.

The justification for trigger warnings asserts that speech is the same as physical violence. The earliest iterations of trigger warnings related to warning listeners that a speaker may be about to give graphic depictions of rape or other sexual violence that could trigger traumatic memories in victims of rape or sexual violence. Insofar as speech called up memories of physical violence it was classified as being a form of violence.

However, the categories of potential victims warranting special sensitivity soon expanded to include a laundry list of non-personal, political grievances wherein the underlying trespass against the victim in no way involved physical violence. In practice, the trigger warning policies and other related phenomena have become de facto censorship policies that can be deployed against minority viewpoints on college campuses to silence speakers, including pro-life speakers.

A trigger warning allows a listener the opportunity to interfere with the speaker’s right to speak and/or to interfere with the right of other audience members to listen before the discussion even begins. In order to have a policy of preemptively warning against a book, movie, or classroom discussion that could be “triggering,” someone has to determine in advance—quite apart from whether an real person suffers any real psychological distress—which topics or viewpoints will be “triggering,” and which of the infinite variety of potential sensitivities will be accommodated. That is, someone must act as censor and impose her tastes, beliefs, and prejudices on others.

It comes as no surprise that academics from the left and right are harshly critical of trigger warning policies and have spoken out loudly against a trend that is irreconcilable with the basic purpose of education to challenge unexamined ideas. It is now a common fear among academics that their employers will punish them for having offended a member of a group whose grievances are politically popular at the moment. An English professor recently published a widely read op-ed entitled, “I’m a Liberal Professor, And My Liberal Students Terrify Me,” documenting the trend of students using sensitivities—whether sincere or insincere—as a pretext to stop free speech and debate, and/or as a tool to punish professors with whom they disagree. The opposite phenomenon has also occurred. A professor who battered a pro-life protestor and robbed her of her protest sign at the University of California, Santa Barbara, cited her allegedly having been “triggered” by the protest signs.1

To date, raising being “triggered” as a defense to physical battery is not a viable legal defense, and was not for the UCSB professor. But, similar sorts of arguments—that speech can and should be silenced because it may “trigger” a hypersensitive or violent audience—have been raised in court cases with varying degrees of success to silence pro-life speech.

For instance, in May of last year, the federal Court of Appeals for the Second Circuit held the speculation that “road rage” might occur because of personalized “Choose Life” license plates justified the New York DMV’s refusal to approve the personalized plates. (Children First Foundation, Inc. v. Fial, 790 F.3d 328 (2d Cir. 2015). The Second Circuit upheld the New York DMV’s determination that “Choose Life” plates could be banned—without violating the First Amendment’s prohibition against governmental censorship—under a regulation permitting the DMV to refuse to approve “patently offensive” messages. The Second Circuit swallowed the New York DMV’s patently absurd contention that “Choose Life” could be characterized as (objectively) “patently offensive” by allowing the DMV to equate “patently offensive” with “politically charged or emotionally sensitive” issues.

Putting aside the absurd notion that “Choose Life” is offensive in any objective sense, the Children First case also breaks with a well-established legal tradition of interpreting the First Amendment. That tradition requires that if the government chooses to act to keep the peace as between a law-abiding speaker and an inflamed audience threatening unlawful violence (“hecklers”), the government must take reasonable steps to protect the lawful speaker and his speech from unlawful violence. Only where reasonable measures taken to protect the speaker cannot succeed in quelling an imminent ‘riot,’ may the government take steps to silence the speaker in order to preserve the peace.

Other federal appellate courts have applied this tradition to punish law enforcement officers who chose to arrest lawful speakers in violation of the speakers’ First Amendment rights. In one such case, Cannon v. The City and County of Denver, officers arrested a woman for refusing to cover up a sign she was carrying in front of an abortion clinic that read, “The Killing Place.” Some bystanders had threatened violence against the protesters. The officers attempted to argue in a subsequent civil rights suit for false arrest that the pro-life signs were not lawful speech protected by the First Amendment, but were instead a class of speech that can be legally punished or censored: “fighting words.”

The federal Court of Appeals for the Tenth Circuit adhered to the law in finding the phrase “The Killing Place” are not “fighting words.” Fighting words are insults directed at the person of the hearer; that are inherently likely to cause a violent reaction, and play no role in the expression of ideas. The court went on to note that “although the words ‘killing’ or ‘murder’ are certainly emotionally charged, it is difficult to conceive of a forceful presentation of the anti-abortion viewpoint which would not assert that abortion is the taking of human life.”

While some courts may succumb to political pressure to break the legal tradition and accept hypersensitive or insincere assertions of “offense” as reasons to allow governmental censorship of pro-life speech, these attempts are unlikely to be successful in the long run against the strong and established contrary tradition. When speaking in a manner that is within the contours of speech protected by the First Amendment, pro-life speakers should feel confident that even if they are the victims of illegal, governmental suppression, the far more likely scenario ultimately is that their rights will be vindicated.

Pro-life speakers encountering demands to self-censor from private organizations (not bound by the First Amendment) may feel the call to alter how they speak out of consideration for the psychological wellbeing of another presents an unquestionably good goal. Christian pro-life speakers may even hear in it a familiar call to humility and mercy that the telling and hearing of hard sayings needs. As the Psalm says, “If you, O Lord, laid bare our guilt, who could endure it?” But pro-life speakers should not self-censor to accommodate the goal of concealing the truth or its psychological effect. Instead, pro-life speakers should convey their message in whatever way they judge will be most effective at the time in light of the audience they seek to reach.

1 https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/20/uc-santa-barbara-professor-steals-young-anti-abortion-protesters-sign-apparently-assaults-protesters-says-she-set-a-good-example-for-her-students/

 


Originally published in Lifeline Vol. XXV, No. 1 (Winter 2016)

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.