Terrell Harper does not like cops. Relly, as his friends call him, does like Asian people, though if you’ve heard of him only recently, you might think otherwise.
Relly was caught on camera letting loose a torrent of what can only be described as intentionally provocative and racist invective at Chinese American NYPD Detective Vincent Cheung, a 16-year veteran of the force. It included stuff like: “F***ing Asian marts last week, how they treat dogs there, motherf***ers?” And, miming shaking sauce out of a bottle: “Soy sauce. Soy sauce. Soy soy soy soy soy soy.” And: “Dog food eater. Goddamnit. God damn cat eater.” And: “Can’t even see right. ... Eyes are slanted.” And: “Oh, are you mad? Are you gonna judo chop?” And, what really cuts to the heart of why Harper was yelling at Cheung: “You put that uniform on and act just like them.”
Before the pandemic, Harper told the Washington Examiner, he was working two jobs as a cook. After the police killing of George Floyd, Harper got swept up in racial justice activism, spending almost all his time “organizing” and protesting for police reform.
That led him to Manhattan, where on March 11, he attended a protest organized (in theory) to support transgender and racial equality. There, he squared off with Cheung, who, as a result of some useful earlier pushes for police accountability and reform, was wearing a body camera.
When Relly explained his problems with cops to me, a broad political critique and voguish political slogans merged with a personal sense of having been wronged by them. He told me about being arrested earlier when he had raised his arm peaceably to show what it said on a bracelet he was wearing, and a police officer claimed this looked like he was going to strike someone.
Five days after Harper’s encounter with Cheung, a deranged, homicidal lunatic shot up several massage spas in Atlanta, killing eight. Six of the dead were Asian. The media jumped to process this as the apotheosis of building anti-Asian violence caused by a rise in anti-Asian rhetoric that had been sparked by Donald Trump the previous year, despite no evidence in favor of this narrative and quite a lot of evidence to the contrary. In fact, the mass murderer seems to have been motivated by a twisted, self-loathing sexual neurosis having a tenuous-to-nonexistent connection to the racial identity of the victims. But the sensational, racially incendiary media narrative was set.
So, the public was gripped by a very strong concern for anti-Asian hate, specifically, at the exact moment when a union for the NYPD held a press conference a little over a week after Relly Harper yelled all those nasty things at Detective Cheung. The union announced it was taking the “innovative” and unusual step of suing a citizen in civil court on behalf of a police officer. The press conference featured the video of Harper berating Cheung, and before the video plays, there’s a warning screen:
“Warning: Graphic language. Stop Asian hate.”
An NYPD detective’s shield, the logo of the Detectives’ Endowment Association, a union representing some 17,000 active and retired cops, sits between the two lines. Trigger warnings are no longer the province of Columbia University and NYU; they’ve made their way into the communications of New York’s Finest.
Taking the lectern, a resolute-looking Cheung made his case, saying, “Given the current climate of Asian hate, a verbal assault like that on a uniformed NYPD detective only leads to violence in the streets. Any type of hate speech directed towards just the general public, what would be the end result? Only violence.”
Verbal assault is a conceptual category that does not really exist in United States law, just as hate speech is something that means something different to everyone and nothing to a court. Indeed, in the case of R.A.V. v. St. Paul, the Supreme Court specifically ruled that while some face-to-face speech acts can be ruled unprotected by the First Amendment because they’re so inflammatory they're likely to lead someone to punch you (the infamous “fighting words” doctrine), it’s unconstitutional to make special exceptions for racist speech.
The twist here is that activists of the Left are having a tactic of theirs coopted by the target of their attacks, and the suit is a test case for whether such a turnabout will become more common.
The basic fact that words are quite different from physical attacks is being eroded by the success of ideas and arguments promulgated by critical race theorists such as Mari Matsuda, who wrote the book Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Indeed, the idea that some words are or can be violence is the very heart of critical theory, understood as a political project aimed at eroding content-neutral speech protections. But the popularity of this idea has been mainly concentrated among younger members of the left-wing media, or the aficionados of "the Squad," or rarefied grad students.
Yet when I talked to the lawyer bringing Detective Cheung’s case, James Moschella, he was jazzed about the idea that words are tantamount to violence and that speech acts can conceptually blur into physical acts for the relevant purposes. “Our concern was that if this type of behavior is allowed to stand, this type of language, it will foster additional incidents like this. People will feel emboldened that they could speak like this freely to law enforcement.” The argument was specifically that words spoken at a protest will cause a political climate that’s more violent, not that they might incite violence in the direct physical area around where the words are uttered and breach the peace. Which is to say, he sounded an awful lot like someone relatively new to the application of critical theory to civil law. One gets the distinct “fighting fire with fire” sense from all this.
The idea that people could be punished for saying something that is a direct incitement to violence has been accepted, and legitimately so, in American jurisprudence. However, the idea that you could be punished if you say something that may make society in general a worse place has (thus far) been roundly rejected, no matter how many critical theorists have yowled. The separation between the specific and the general is necessary for maintaining a pluralistic and liberal society in which every verbal dispute isn’t settled in a court of law.
It’s important to remember that the entire phraseology treating uttering “hateful” thoughts as tantamount to physical violence was generated relatively recently, created and disseminated by left-wing academics with a poor grasp on American civic traditions and with bad arguments. This is how we wound up even having such phrases as “hate speech” and “verbal assault,” which rely on the idea that speech acts are not fundamentally distinct from physical acts, even though that distinction is something every child understands perfectly well, and something the First Amendment is based in.
In 1999, Andrew Sullivan took to the New York Times to discuss the creepy evolution of the word “hate,” which was just then coming to be used as we had never popularly understood it before, in an essay called “What’s So Bad About Hate?” As he wrote then, it was a novelty to think about this ordinary part of the range of human emotions in criminal-legal terms: “In 1985, there were 11 mentions of ‘hate crimes’ in the national media database Nexis. By 1990, there were more than a thousand.”
Back then, Sullivan had to explain that “we have created an entirely new offense in American criminal law — a ‘hate crime’ — to combat” this feeling. The argument had crossed over from left-wing legal theory like Matsuda’s book on “assaultive speech” to mainstream politics, and Sullivan found it being put to mischievous uses by the media and by politicians. But this was ultimately going to result in appeals to the courts that would become a problem for free speech. “The boundaries between hate and prejudice and between prejudice and opinion and between opinion and truth are so complicated and blurred that any attempt to construct legal and political fire walls is a doomed and illiberal venture,” Sullivan wrote.
He was half wrong. It is an illiberal venture, but it was not doomed. Today, not only does the entire institutional Left believe words can be violence, but somehow “silence is violence” too. This slippery nonsense should be repelled, not mirrored.
With Terrell Harper, things are complicated indeed, because as legal scholar Eugene Volokh told me, his actions were quite probably not protected speech under the First Amendment. That’s because he yelled provocative insults at Cheung, in person, directly in front of him. But that’s not because of the particular words being hateful, as such. If Harper had said the same words to a general group of passersby from a car, or if he’d said them to Cheung on the telephone, they’d be protected. What the law says about provocative insults likely to cause a fight is separate from any conception of “hate speech” or “verbal assault” that is being bandied about.
Both sides of the case told me they fully expect to win, and they’re willing to fight it out. It seems clear that the case is political in nature, but it’s not totally without merit in the strict sense of winnability in court. The statute in question requires the cops to demonstrate that Harper engaged in extreme and outrageous behavior that recklessly or intentionally caused severe emotional distress. If they prove that, they also need to make sure the speech isn’t constitutionally protected.
Then there’s the question of whether, if the cops lose, the court could make them pay Harper’s legal fees under New York’s (relatively young) anti-SLAPP laws, or rules against “strategic lawsuits against public participation.” In the press conference announcing the lawsuit against Harper, Moschella hinted at their prospective deterrent value: “Violence against individuals, violence against racial and ethnic groups, violence against police officers is up dramatically because of that rhetoric. Words matter. And what this lawsuit is about is sending a message that enough is enough. ... If the threat of getting arrested isn’t enough to these individuals spewing such hate, well, maybe getting hit in the pocketbook and having monetary damages against them will be the deterrent going forward.”
What we now know is that the cops want in on what individuals and racial and ethnic minorities are getting, as a group. And here we have the manifestation of the biggest reason, from a tactical if not moral standpoint, that criminalizing speech was so harebrained. The tactics that the Left long ago adopted to limit the liberty of people who want to say unpopular things are being adopted by the people who patrol the citizenry with guns.
No doubt all sorts of lies about what the police do, the realities of crime, and how many abuses against the public they commit have become popular to believe in New York City. New York prosecutors are systematically refusing to take action against criminals in a way that has contributed to a massive increase in crime whose victims have been primarily people of color. My own Brooklyn neighborhood has become noticeably and materially worse since the slogan “defund the police” was painted all over it, and not coincidentally. And, I don’t know if Detective Cheung is playing it up when he claims to have been traumatized, 16 years after he signed up to carry the gun and badge of a New York police officer, by having a protester yell disgusting words at him. A jury may have to sort through if his claim of having been psychically damaged to the point of needing medical attention and time off work is, in fact, true, if the case gets that far. What I do know is that what the police are doing here chills speech using winking distortions of language to get the law to punish people where they cannot win debates. This is wokeism where you don’t usually find it, and where it is arguably more dangerous.
Harper, for his part, told me that immediately after the exchange, which he also recorded on his Instagram app, he thought he looked bad and deleted the video. He said what he was trying to do was part of a sort of ironic device he uses as a protest tactic, in which he uses rhetoric to make people feel what he believes people like him are made to feel all the time. He’s since apologized, though not in the form of a direct public apology to Cheung. He says he’ll be using different rhetorical tactics from here on out. It took some time for process servers to get to Harper, but now the case is in the system, he’s been served, and he’s gotten a lawyer, who just asked for an extension into the early autumn.
Part of what has made the culture war in America so intense is the looming specter of the legal system as an arms dealer in it. The Left often can’t figure out why the Right is whining so loudly (as they see it) about “cancel culture,” because they can’t see the HR department and the liability judgments HR represents lurking behind them. Woke people live life blithely unaware that such a thing as a “compliance” department might feel oppressive, though they may feel differently when compliance means compliance with whatever rules you have to follow to keep the police from being unhappy with progressive protesters and prosecutors. So, they go on claiming all sorts of things are “incitement” that are not legally speaking incitement, as though that is a debating tactic and not a threat to sue. Or, New York Times staffers claim some article puts them in danger rather than mount an actual persuasive editorial reply, because a claim like that can’t be rebutted without running afoul of the Labor Relations Act. They can’t see what a dramatic escalation this is, because to get legalistic in this way, to abuse language in this plausibly deniable but ultimately fraudulent way, is a threat built into their words, and one they forget they’re making. They can’t remember what it feels like not to have the government on their side of the culture war.
And it is these abuses of language that are so dangerous, since the double talk always threatened to cause opponents to give in to the impulse to resort to the same sleazy tactic. Now, the police are suing a black protester using the cynical argument that in this climate, words are violence, and we can’t let citizens speak freely without fear of being “hit in the pocketbook” lest the incitement goes on. It was dangerous before, when the Left did it, and it is dangerous now, when armed agents of the state who feel embittered by how they have been treated by politicians and the press are doing it.
Many of us across the ideological spectrum have warned that restrictions on speech help whoever is in power, and people are abusing language to grab power. In this magazine, I write a column about various distortions of language and attempts at speech policing that create the conditions in which only the culturally dominant side gets to be read generously. The New York Times's Michael Powell recently chronicled how the ACLU has given up on free speech, according to, well, the people who now run the ACLU, and why this supposedly progressive development is really a depressing step backward according to, among others, the people who used to run the ACLU. You can find avowed socialists joining right-wingers and political nondenominationals in common cause on this matter, because the monoculture of American public opinion has turned against its own first value.
The detectives’ union president told me that if the suit against Harper is successful — even if the case is thrown out or the cops lose, but it works as an effective deterrent against the protesters and the rhetoric America’s police feel besieged by right now — they wouldn’t rule out suing over language that’s nonracial too, such as slurs against cops as “pigs.” I’d never say what Terrell Harper said, but I hope the police aren’t able to use him to make us all glance over our shoulder for a process server all the time. I can’t imagine leftist and critical race theorists and full-time protesters will be happy in that world, and neither will those of us who have been worried that there will be terrible consequences all around to breaking down what words mean so badly that the language of trauma and the difference between violent assault and saying nasty and repugnant things can’t be expressed persuasively. Well, we told you so.
Nicholas Clairmont is an associate editor at Arc Digital and a regular contributor to the Washington Examiner.
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