Two years into the COVID-19 pandemic, and a year after the fatal spa shootings in Atlanta that targeted and killed people of Asian descent, reports of anti-Asian American and Pacific Islander violence and bigotry have increased. Stop AAPI Hate, an organization tracking and reporting on these acts of racism that started since the stay-at-home orders began in the United States, released its most recent report this month, noting that verbal harassment continues to make up the largest share of reported incidents. Despite the fear and harm caused by the kind of street harassment lobbed against Asian Americans and Pacific Islanders, the conduct isn't criminal, leaving little recourse for its victims.
"If speech had no effect, we wouldn't be protecting it as a fundamental right of the constitution. Speech can have tremendously beneficial effects, but speech can also be really harmful and cause psychological harm and physical manifestations of the psychological harm," said Erwin Chemerinsky, dean of the University of California Berkeley School of Law. "The fact that the speech is offensive and upsetting isn't enough under current First Amendment law for it to be punished."
Chemerinsky was also the founding dean of the University of California Irvine School of Law; has written more than 200 law review articles; and authored more than a dozen books, including his most recent, "Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights." Michael Ichiyama is a clinical psychologist and chair of the department of psychological sciences at the University of San Diego. Miwa Yasui is associate professor in the school of social work at the University of Chicago. They each took some time to discuss verbal harassment from a legal and psychological perspective, looking at how it's defined and the ramifications for its victims. (These interviews have been edited for length and clarity.)
Q: In general, can you talk about what typically qualifies as verbal harassment, from a legal perspective?
Chemerinsky: The law is clear that free speech is generally protected in our society, even very offensive speech is generally protected. However, it's not an absolute right, so threats are not protected by the First Amendment. If speech is such that would cause a reasonable person to fear for imminent harm to his or her physical safety, that's not speech protected by the First Amendment. If somebody is walking down the street, and a group surrounds that person, and says things to that person that would cause that person to fear that he or she is about to be beaten, those who engage in the speech can be punished even if no blows are struck. There's no First Amendment right to cause people to feel threatened.
Harassment in the context of an educational institution or workplace is speech that's not protected by the First Amendment. If an employer says to an employee, 'Sleep with me or you're fired,' the fact that it's speech doesn't mean it's constitutionally protected. It's not. In fact, in the context of educational institutions or workplaces, the law is clear that speech that materially interferes with a person's employment or educational opportunities on the basis of race, sex, religion or sexual orientation, isn't protected.
In this context, street harassment can cover a wide array of different kinds of expression. It can be simply yelling a slur to somebody on the basis of their race or their sex. It can be offensive, sexist comments made to women as they're walking down the street. It could also rise to the level of a reasonable person feeling threatened by it. Under the First Amendment, the offensive speech is protected. You can't punish somebody just for saying something that's offensive, but if it's threatening or if it rises to the level of harassment in the workplace or the school, then it's not protected by the First Amendment.
Q: It sounds like that speech has to be like a direct threat, like, 'I'm going to hit you.'
Chemerinsky: The closer it comes to a direct threat, the clearer it is, but it doesn't have to be a direct threat. The circumstances will matter enormously, and if the circumstances are such that a reasonable person under the circumstances would fear for his or her physical safety, that's speech that can be punished.
Q: Can you talk about what typically qualifies as verbal abuse, from a psychological perspective?
Ichiyama: These involve verbal acts done with the intent to humiliate, insult, threaten, demean and/or intimidate others. These verbal transgressions often involve themes related to manipulation and exerting power and control over others.
Q: What kinds of physical responses are typically caused by being on the receiving end of verbal harassment? And how do those physical responses impact the person's physical health?
Yasui: Specifically in regard to race, there's a lot of literature now that has shown that there are mental health effects of having received discrimination or racism. There's also literature now that shows that when one encounters racism, there are effects on the person's physical health. For example, blood pressure increases, cortisol (the stress hormone within one's body) is elevated, particularly among populations where there's been consistent oppression. In studies, there's been found to be an epigenetic effect; with a group of survivors of the Holocaust, they found that the offspring of the survivors also carry the effects of the trauma from the prior generation. I think that is very clear that when there is racism, that kind of trauma has consequences to the physical body, and sometimes that can be passed down to the next generation who may not be the direct victims of the attack or the trauma.
Q: In what ways do instances of verbal harassment affect a person's mental and emotional health?
Ichiyama: These could include increased levels of overall anxiety/fear, hypervigilance around one's environment, social isolation and withdrawal, and self-degradation to name a few. If prolonged or repeated incidents, it can potentially result in despair and depression. Maladaptive coping with the resulting stress, such as alcohol/substance abuse may be present. In severe cases self-harm behaviors or suicidal ideations could occur. Verbal transgressions toward Asian Americans are frequently based on the prejudicial stereotypes that all Asians are the same ("clumping"), or that all Asians are foreigners (and not really American), or in the most recent context that Asians are responsible for the COVID-19 pandemic. Because of things like this I always look for the potential of the victim internalizing the hostile messaging they received from racially-based verbal transgressions.
Yasui: I think that the literature is quite solid in terms of how racial discrimination has negative impacts on mental health, and this is across racially and ethnically diverse populations, not just Asian Americans. These instances increase anxiety and depression. There are adverse changes to mental health status and, oftentimes, it can lead to lower self-esteem as well as poor coping behaviors. There's really a large range of the kinds of effects of racism and discrimination that one encounters. For others, it can increase depending on the type of racism. For example, I mentioned how incidents of hate crimes have really increased, especially after the pandemic started. Those who have been direct victims of such encounters may also have PTSD (post-traumatic stress disorder) and struggle from that, as well. I think that the psychological distress that comes from racism is actually widespread.
Q: In your professional experience, what can people do to care for themselves if they've experienced verbal harassment?
Ichiyama: Avoid social withdrawal. Reach out to loved ones and people you trust. Pay attention to your reactions (physical, psychological, emotional and behavioral) to the verbal transgression(s). Be open to seeking mental health treatment. Not keeping what happened a "secret" is key. Friends or loved ones can reach out to support victims of racial transgressions. They don't need to "solve" anything, but by lending a caring ear they can be "healing". Additionally, if someone hears friends, acquaintances or even relatives voicing any stereotypes or misinformation about Asian Americans, they can speak up and help correct the misconception. Such acts can help prevent future suffering.
Yasui: It's obviously important to take care of one's self individually, but I think that on a collective level, what can be very important in the healing process is to be able to share these experiences and have acknowledgment of them. One of the things that has been difficult for Asian Americans in the U.S. is that because they are a racial minority, and because of the 'model minority myth,' a lot of times Asian Americans are pitted against other racial groups, so the experiences of discrimination and racism sometimes have not been understood as well as other groups. What can happen is that the voices of Asian Americans may sometimes be overlooked, and I think that is something that the younger generations have particularly struggled with. They've grown up here in the U.S., so they're not like their parents or grandparents who migrated, who may have a way of coping with racism by thinking 'Well, this is not my country. I have come here for a better life.' While that doesn't justify the acts of racism they've experienced, that might be one of the ways that they cope. For those who've grown up in this country, though, they don't have those ways that their parents and grandparents have in coping with racism because this is the only place they know. Living in this position of being pitted as a 'model minority,' but also constantly viewed as a foreigner, has landed Asian Americans in a unique position where they've had to really navigate what it means to be part of a minority group. What does it mean to be Asian American and what does it mean to be American?
What I've found, and I've seen this increase since the pandemic started and with the rise of Asian American racism, is that the young people have come together to start sharing their experiences. This has spread to local ethnic organizations bringing about discussions and allowing for spaces to talk about what it means to be in America and what Asian American identity is. What is racism? What does it look like? That's something I've found to be really encouraging.
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