THE PSYCHOLOGY OF CENSORSHIP.

• Date: 22 December 2023
• Author: Kinsley, Jennifer M.
• Published date: 22 December 2023

CONTENTS
                INTRODUCTION
                I. THE FIRST AMENDMENT, HARMFUL SPEECH, AND TRADITIONAL
                 JUSTIFICATIONS
                 A. The Political Process Justification and the Writings of
                 Alexander Meiklejohn
                 B. The Self-Realization/Self-Actualization Justification
                 1. Justice Brandeis's Dissent in Olmstead
                 2. The Work of Professors Emerson and Redish
                 3. Modern Case Law Examples
                 C. The Marketplace of Ideas Justification
                 1. Early Origins and the Intersection with Economic Theory
                 2. Holmes's Dissent in Abrams
                 3. Modern Case Law Examples of the Speech Marketplace
                 D. Free Speech Paradigms and the Approach to Harmful Expression
                 1. Hate Speech and the Political Participation Justification
                 2. Hate Speech and the Self-Realization Justification
                 3. Hate Speech and the Marketplace of Ideas
                II. WHAT PSYCHOLOGY TEACHES ABOUT CENSORSHIP
                 A. Brehm's Psychological Reactance Theory
                 1. The Stages of Psychological Reactance
                 a. Stage One: The Presence or Perceived Presence of Freedom
                 b. Stage Two: The Elimination of or Perceived Threat to
                 Freedom
                 c. Stage Three: Arousal of Reactance
                 d. Stage Four: Restoration of Freedom
                 2. The Boomerang Effect
                 3. Reactance and Censorship: The Canadian Social Media Studies
                 B. Scarcity Theory
                III. THE PSYCHOLOGY OF CENSORSHIP AND ITS PLACE IN THE LAW
                 A. Importing Scarcity and Psychological Reactance Theories
                 into Law
                 1. Jury Instructions
                 2. Scholarly Treatment in Other Contexts
                 3. Case Law References to Reactance and Scarcity
                 B. What Scarcity and Psychological Reactance Theories Teach About
                 Censorship
                 1. Individual Harms
                 a. Intellectual Reduction
                 b. Bandwidth Limitations
                 c. Reduced Viewpoint Accuracy
                 2. Collective Harms
                 a. Boomerang Effect
                 b. Narrowing of Discourse
                 c. Polarity and Entrenchment
                CONCLUSION
                

INTRODUCTION

A perplexing question in First Amendment law, and one that is the subject of ongoing and rigorous debate, surrounds the protection of speech that causes harm to others. Professor Joseph Blocher, for example, frames the question as one of foundational origin: "[W]hat is the constitutional value of free speech" in the first place? (1) Indeed, few scholars question the underlying assumption that words can cause damage--emotionally, (2) reputationally, (3) and economically. (4) In fact, speech-related harms to both individuals and groups can be so wide-ranging that it becomes difficult to categorize exactly what we mean in this arena. For this reason, amorphous categorizations like "hate speech" or "cyberstalking" serve as catchall phrases to reference expression that generally targets a particular marginalized individual or group for criticism. (5) Why does the First Amendment protect this expression?

When it comes to so-called "hate speech" and other forms of potentially harmful speech, the United States is a comparative outlier in affording a high degree of constitutional protection to expression that many people might deem hateful, offensive, and disgusting. (6) In fact, compared to our European counterparts, American constitutional doctrine elevates to the arena of free speech significantly more expression that denigrates other people or advances discriminatory ideas about race, gender, and equality. (7) Critical race scholars like Professor Mari Matsuda have highlighted an important tension here. (8) The Fourteenth Amendment constitutionalizes equality, at least where state action is concerned, but the First Amendment, as interpreted by courts, continues to protect speech that undermines equality. (9) This dichotomy begs a number of questions. To what extent does the First Amendment cover speech that causes harm to disadvantaged persons and groups? What value exists in protecting expression that embodies discriminatory ideas? And should First Amendment doctrine be changed to address the discrete and known damage that flows from specific kinds of speech?

Much has been said, and continues to be said, in response to the latter question. (10) The fields of law, economics, sociology, cybertechnology, and ethics do not lack for quality research and debate over the impacts of harmful expression and how lawmakers and courts should address this perceived problem. (11) But, against this debate, surprisingly little discussion has occurred as to how and why the First Amendment operates in the way it does currently in the realm of so-called hate speech.12 Calls for change in any direction can be better informed by a deeper and more fulsome understanding of the current state of affairs.

Thus, rather than taking a normative position as to where First Amendment law should land vis-a-vis hate speech and other potentially harmful expression, this Article instead interrogates the justifications for how First Amendment jurisprudence has developed in the way that it has and introduces new psychological support for existing First Amendment norms. Rather than arguing for particular outcomes in terms of what speech should and should not be protected, this Article instead seeks to justify the lines that have already been drawn by looking outside of traditional First Amendment doctrine to the field of psychology.

To date, the expanding understanding of human psychology has played a pivotal role in the scholarship that seeks to examine how speech impacts listeners. (13) That knowledge is valuable, and nothing in this Article seeks to either undermine or take a position on questions regarding whether or how words can damage those who hear them and whether or how First Amendment doctrine should accommodate those harms. Separate from those inquiries, I am interested in exploring what psychology has to teach about the impacts of speech-related freedoms on speakers. (14) This Article, therefore, focuses on the contributions of psychology to the speaker side of the free speech equation.

I begin by examining whether the traditional explanations for First Amendment expansiveness support broad protection for hate speech and ultimately conclude that they do not. In addressing the hate speech paradigm, advocates for free expression tend to respond by focusing heavily on the democratic ideals underlying the protection of political expression and the marketplace function of the First Amendment. (15) They contend that airing out ideologies that undermine equality will make for a more informed and impassioned electorate and that allowing unfettered access to democratic debate will encourage a more engaged polity. (16) They further argue that eliminating a perspective from the dialogue makes the discussion itself less robust, trusting that the process of sorting bad ideas from good ones will enable only the most worthy speech to remain in the end. (17) But, as I argue, these conventional paradigms for protecting free speech focus too heavily on the internal theoretical, and not the external pragmatic, aspects of modern speech realities. (18)

This Article posits a new basis for the protection of free expression that better embraces what we know today about the relationship between speech and the human mind: that censoring expression leads to damaging psychological harm on the part of the speaker which, in the long term, solidifies censored ideas. Following on previous work exploring the therapeutic attributes of enabling expressive outlets for those with a penchant towards anger and violence, (19) this Article exposes the broader psychological truths about censorship and its counterproductive tendencies. Drawing on psychological reactance theory--which teaches that threats to freedom will produce internal motivation and, at times, outward action to restore the freedom (20)--and scarcity theory--which posits that an unmet need detracts from cognitive bandwidth and reduces intellectual functioning (21)--the Article demonstrates that attempts to censor free expression actually lead to greater fixation on the speech in question and reduced ability to consider other ideas. Censorship is therefore psychologically counterproductive. It contributes to idea entrenchment, viewpoint polarization, and reduced intellectual capacity, all outcomes that contradict the very bases upon which the First Amendment was supposedly founded.

This Article is not the first project to import modern psychological understanding into free speech theory. In Therapeutic Expression. (22) for example, I considered the therapeutic qualities embedded in the right to free expression and the likelihood that therapeutic. speech-based outlets forestall future violence. This work explored the interconnectedness between speech and violence. examining specific high-profile cases including Charlottesville and the Aurora. Colorado. movie theater massacre. (23) It relied in part upon studies from the fields of psychology and sociology suggesting a link between expression and violence prevention to support the hypothesis that the preservation of free speech may play a role in limiting aggression. rebellion. and crime. (24) That work focused on the psychological value the freedom of speech provides to speakers. (25) In this Article. I explore the potential psychological harms of censoring speakers and the results of censorship on individuals and communities.

There is good reason to believe that the broader legal profession. if not society in general. embraces such an endeavor. To date. the intersection of free speech law and psychology has been the subject of at least two acclaimed publications written for a lay audience: (1) The Coddling of the American Mind (26) by lawyer Greg Lukianoff and psychologist Jonathan Haidt. a widely discussed book that expanded upon Haidt and Lukianoff's essay in The Atlantic of the same name; (27) and (2) Hate: Why We Should Resist It With Free Speech, Not Censorship by Professor Nadine Strossen, which discussed the reasons why governmental regulation of hate speech is dangerous to those who seek progressive societal change. (28) Both of these works consider psychological justifications for protecting speech that listeners find...