Hate speech. Cancel culture. Civility. Safe spaces. Trigger warnings. Microaggressions. Pronouns. Gag orders. Doxxing. Parental controls. Twitter and Facebook suspensions. Misinformation. Disinformation. Fake news. Alternative facts. The dark web. TikTok bans. Hot mics. Discord leaks. Oversharing. Earmuffs.
American law and culture is preoccupied with speech, its effects, and its limits. As historian Kristin Olbertson documents in her delightfully readable new book, this preoccupation long predates the First Amendment—at least for one segment of the population. The Dreadful Word: Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776 argues that white, male colonial elites asserted and maintained their power and authority by policing the speech of their lower-status counterparts. They also sought to control the speech of women and Black people, and they were torn between viewing Indigenous speech as noble or as just plain savage. But it was the noise, threats, cursing, contempt, perjury, false reports, and defamation of white, plebeian men that consistently prompted criminal prosecutions in Massachusetts. By criminalizing that speech, Olbertson contends, colonial gentlemen sought to establish themselves as part of “the new polite-ocracy” of the broader transatlantic British empire (54).
The newness of this genteel social order lay in its redefinition of the nature of transgressive speech. Olbertson maintains that early modern and Puritan “concerns about speech as sin were joined by, and often superseded by, concerns about speech as fundamentally impolite” (20). If sinful speech threatened hierarchies of both gender and religion (think Anne Hutchinson), then impolite speech illuminated socio-economic stratification among colonial Englishmen. Olbertson finds that most speech crime prosecutions involved violations regarding rules of deference by the lower and middling sorts toward their social “betters,” as well as occasional breaches of courtesy among elites. Seldom were members of the lower orders held accountable for transgressive speech among themselves. Whereas historians such as Cornelia Dayton and Terri L. Snyder have demonstrated the important legal and cultural role of colonial women's speech, Olbertson suggests that decreasing prosecutorial scrutiny of their illicit speech reflects the declining discursive relevance of women in the new, genteel order. Gentlemen defined themselves and consolidated power against women and lower-status men by associating polite, civil speech with the ability to govern themselves and their households. As colonial elites became less worried about the ability of vocal utterances to cause actual harm to individuals through curses, witchcraft, threats, or verbal abuse, they increasingly emphasized the potential for speech to challenge civil authority and disrupt the peace, whether by spreading false reports, defaming prominent men, displaying contempt for legal officials and processes, or simply by making undue noise, profanely swearing, or lying. None of these utterances were unique to men of the lower orders. The difference was that their work, socializing, and family life tended to occur in quasi-public spaces where they were subject to more scrutiny, and therefore censure, by higher-ups. Like the coercive physical violence that some householders routinely exercised against their wives, children, servants, and enslaved people, the speech of elite men was shielded from criminalization by its privacy. When elite men did want to make their potentially defamatory speech public, Olbertson astutely observes, they could dress it up as satire to avoid prosecution.
Olbertson's carefully researched study advances scholarship in several areas of legal humanities inquiry. Her analysis of transgressive speech as one pretext for “policing the low” (56) deepens our understanding of the broader exercise of the police power, as theorized by Markus Dubber. In early American contexts, this preservation of the king's, the people's, or the public peace has been analyzed by William Novak, Christopher Tomlins, Laura Edwards, Bryan Wagner, Sal Nicolazzo, and Kate Masur. Olbertson's attention to ritualized ceremonies of deference and legal-cultural anxieties about the artificiality, dishonesty, and dissemblance requisite to displays of politeness invites a consideration of early American law as performance, in conversation with Julie Stone Peters' work on legal theatricality in Europe.
Much as the Puritan construction of speech-as-sin gave way to the cosmopolitan, imperial understanding of speech-as-impoliteness, the American Revolution prompted a re-evaluation of illicit speech—this time as disloyalty. Political and popular censure of disloyal speech had the leveling effect of authorizing and empowering lower-status men to speak out against royal officials and other hitherto powerful polite gentlemen. In the nineteenth century, the elite culture of sensibility, civility, and credibility was gradually succeeded by a middle-class culture of respectability that tended to be enforced through norms rather than law. Thus, even as more and more Americans could retreat to private spaces of their own, Olbertson suggests, they found “no similar shelter from the supervisory gaze of the market” in an industrial capitalist culture where success often “meant . . . offering oneself up for economic valuation and sale of sorts, and [where] managing one's speech appropriately was simply another means of product promotion” (285). The world of likes, influencers, and virtue signaling would not be far behind.