Washington. -- The latest issue of the prestigious Harvard Law Review features a 60-page article by Northwestern law professor Cynthia Grant Bowman on the "street harassment" of women.
Professor Bowman argues that "wolf-whistles, sucking noises and catcalls" directed at women in public places -- as well as comments that "range from 'Hello, baby' to vulgar suggestions and outright threats" are part of a "spectrum of means by which men objectify women and assert coercive power over them." She wants to make these things illegal, or at least subject the harassers to civil lawsuits.
Ms. Bowman would seem to offer conservative curmudgeons their fattest target since a liberal judge in New York ruled that beggars had a constitutional right to panhandle in the subways. She says "any incident of harassment, no matter how harmless," reinforces fear of rape "by demonstrating that any man may choose to invade a woman's personal space, physically or psychologically." She ignores the possibility that a "reasonable woman" might want men to hit on her. Take it away, Rush Limbaugh.
Sometimes, though, it's too easy to be a curmudgeon. Compare Professor Bowman's arguments with those in that New York subway panhandling case. In the latter, conservatives insisted on preserving order in public spaces, even at the expense of a borderline First Amendment claim. Is the case against "street harassment" all that different? One would expect those on the right who most loudly lament the loss of civility to be the most sympathetic to Ms. Bowman's complaint.
After reading the article, I conducted an unscientific survey of female acquaintances, asking if they were in fact bothered by "street harassment." None was as distressed as Ms. Bowman is. But almost all said they were regularly harassed, at least on the "hey, baby" level. And most said they changed their routes to avoid public spaces where they thought they would be taunted.
For all her foolishness, Ms. Bowman has pointed up a violation of civility that seems to diminish public life for a large portion of the population. The problem is what to do about it. The pursuit of civility in public spaces is a difficult enterprise for Americans accustomed to framing such issues as conflicts between individual rights. Quite simply, it is impossible to describe the civil ordering of public space in terms of "rights." I'm walking down the street talking to a friend. A stranger walks up and begins to harangue me. I turn my back. He keeps haranguing. I have a "right" to be there. He has a "right" to be there too. We both have "rights." But something has to give. Worse, the question of whether we want to restrain the haranguer inevitably hinges on the content of his expression. It makes a difference if he says, "Hello, baby" or "Hey, bitch." It even makes a difference if he's funny or trite. The required judgment is almost aesthetic.
It won't do to simply note, with liberal communitarians such as William Galston, that "there is a gap between rights and rightness that cannot be closed without a richer moral vocabulary . . . that invokes principles of decency." That's true. But how do we get ourselves a public sphere that reflects this decency?
At least three approaches seem to be available. First, re-education. Amitai Etzioni, in his forthcoming book "The Spirit of Community," despairs of any attempt to put a "notch" in the First Amendment to allow the prohibition of offensive speech. But, he suggests, why not require offenders "to attend classes that will teach them civility?" This may make sense in a university setting (which is the context of his discussion). As a remedy for "street harassment," it seems pathetically inadequate. There's also something creepy about the idea of state-sponsored re-education classes.
Second, as Professor Bowman suggests, we might give "targets" of street harassment the right to sue for civil damages. Yet this seems a recipe for gross litigiousness. Do we really want every woman who feels "dissed" to be able to require a judge to assess the "reasonableness" of the dissing?
The third, and least unsatisfactory approach, is to delegate the required judgments to the police by making "street harassment" a misdemeanor, just as other sorts of public disturbances are misdemeanors. Pennsylvania already has a law penalizing anyone who intentionally "engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy" another person.
The trouble, as Ms. Bowman notes, is that this sort of ordinance typically applies only to those who repeatedly harass a single individual, not to those who harass a series of passers-by. But this defect can be remedied. If it's not a violation of the First Amendment to arrest a man who calls one pedestrian a "bitch" 15 times, why is it a violation to arrest him if says it once to 15 different pedestrians?
Few police departments would actually arrest any but the most egregious violators, of course. But the law would at least give cops a basis for telling offenders to "move along." And the law might also stimulate the cultural change that everybody, including Ms. Bowman, agrees is the only real solution. Until then, her argument will be hard to dismiss.
TRB is a column of The New Republic, written by Mickey Kaus.