WORDS, WOUNDS, AND RELATIONSHIPS: A MIXED-METHOD STUDY OF FREE SPEECH AND HARM IN HIGH-CONFLICT ENVIRONMENTS P. Brooks Fuller A dissertation submitted to the faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the School Media and Journalism. Chapel Hill 2017 Approved by: Cathy L. Packer R. Michael Hoefges George W. Noblit William P. Marshall Victoria S. Ekstrand © 2017 P. Brooks Fuller ALL RIGHTS RESERVED ii ABSTRACT P. Brooks Fuller: Words, Wounds, and Relationships: a Mixed-Method Study of Free Speech and Harm in High-Conflict Environments (Under the direction of Cathy L. Packer) This dissertation is a mixed-method, socio-legal study of First Amendment issues and social practices surrounding free expression and harm in high-conflict speech environments, such as ongoing political protests. Scholarly literature and case law on harmful speech makes clear that context is crucial for courts to understand the relative harms and values associated with speech in such environments. The outcome of a court’s contextual analysis can profoundly impact the outcome of a case involving allegedly harmful speech that falls at the borderlines of First Amendment protection. However, American courts have not articulated clear frameworks for conducting contextual analysis. Thus, lower courts have used an array of contextual factors, often implicitly and in ways that fail to grasp aspects of context that are critical for participants who engage daily in persistent, heated ideological debate in high-conflict environments. Using legal analysis and ethnographic field methods, this dissertation studies how courts conduct contextual analysis in true threats and incitement cases and how participants who engage daily in pro-and-anti-abortion advocacy at a local clinic use context to determine whether and to what extent speech causes harm. The findings in this dissertation reveal that courts and participants frame important aspects of context and harm in dramatically different ways. The apparent gaps between courts’ collective knowledge and the social knowledge of participants have important implications for how courts might choose to conduct contextual analysis and iii consider harm in true threats and incitement cases in the future. Based on a comparative analysis of the cases and the ethnographic findings, this dissertation proposes that courts adopt a contextual analysis framework that considers the following non-exhaustive list of contextual factors when deciding true threats or incitement cases: 1) the social context surrounding speech (particularly the relationship between the parties and the speaker’s intent); 2) speech’s historical context; 3) the medium of expression; and 4) the speech’s linguistic context. This dissertation concludes that the proposed framework would provide clarity and rigor to contextual analysis, which is crucial in all cases in which courts must work to determine whether speech loses First Amendment protection because of the harms it may cause. iv To my participants: This project would not have been possible without you. I am forever in your debt. I hope that a small portion of that debt has been paid through a faithful, though admittedly imperfect, account of your experiences. To readers: “It’s easy to confuse what is with what ought to be, especially when what is has always worked out in your favor.” – D. Benioff & D.B. Weiss v ACKNOWLEDGMENTS Though not sure where to begin, I must state plainly and upfront that these acknowledgments do not begin to do justice to the love and support I’ve received from the many people named in these few pages. Nor do they fairly or fully thank the countless others whose influence helped me get to this point. Simply put, there are many to whom I am indebted and for whom I am thankful. At the top of this list is my family. Special thanks go out to my mother, Connie Knight, for encouraging me throughout this process and for sharing in both my successes and my frustrations. You’ve always been one hell of a cheerleader for me, even when I’ve tried to shy away from the praise. I love you. Thanks to my stepmother, Nancy Fuller, for always listening and for giving me space when I needed to process trying moments during the past four years. I appreciate your seemingly boundless patience and the love you’ve sent my way. To my grandmothers, Lucile “Mimi” Cole and Betty “Grandmama” Fuller, you’ve both been remarkable examples of brilliance and strength for me. I honestly can’t imagine two more perfect women to have as role models. Your husbands, even though they’ve long since passed from our midst, are most certainly beaming. Many thanks to my stepdad, George Knight, for taking an interest in my work and supporting my mother tirelessly just as she’s supported me. To my siblings and cousins (aka “the sneeze”; aka NHSKAMI), I hope that I’ve been a bit less cantankerous during the last four years than during the bar exam. I love you all. When I think about the wonderful family I was given, and how it continues to grow, I’m filled with a deep and abiding sense of gratitude. To Sam Kimball, my best friend, you are like a brother to me. I’m vi grateful to know you, incredibly proud of you, and glad to have been able to turn to you at many times during this journey. To the late Lou Fuller, my loving dad and my constant example, I cannot write a paragraph that fairly or completely explains your importance to me and the role you played in getting me here. Suffice it to say that you were everything to me and I hope I’ve done you proud. You supported me wholly and unceasingly when my professional life turned toward graduate school. You read and questioned my early writing, even from a dull, sterile room at Baptist Medical Center. I will always be thankful for the breakfasts, the cups of coffee, the hugs, the rides in the Chevy and the subsequent tinkering, the stories, and the books you shared with me during the 29 years I had with you. Along with my family, many thanks are due to my wonderful committee. Thanks to Dr. Packer (whom I one day hope to call Cathy) for agreeing to serve as chair and for committing so much effort to stretching my brain and strengthening this project. I am awed by your poise and your devotion to your students. To Michael Hoefges, you have been a consummate mentor to me, especially during the first few months of this program and during my job search. Your advice and insight have been instrumental to my development as a scholar and as a colleague. The journey from a seat in your undergraduate media law class to a research assistantship with you to becoming your friend has been a gift all its own. To George Noblit, thank you for teaching me to question my many assumptions about law and life, and for doing so in new and interesting ways. To Bill Marshall, thank you for holding me to high standards, asking the difficult questions, and letting me arrive at my own answers. To Tori Ekstrand, thank you for helping me think about and critique the layers of this work and the structures that surround it. vii I am also thankful to my talented, kind, and brilliant cohort: Kylah Hedding, for always being willing to take a break from Ph.D. life to talk football and politics; Justin Blankenship, for bringing a clutch level of wit and reason to all of our discussions; Elise Stevens, for managing to find the humor in most anything and for sharing your yoga practice with us; Laura Marshall, for office chats, constant support, and the occasional old fashioned; Scott Brennen, for helping me think deeply about my project and helping me grapple with my research path and with ethnography generally; Dannielle Kelley, for always letting me vent and for sharing my affinity for Vince Staples rhymes. Additional thanks to some of the finest members of the MJ-School I had the privilege to know during my time at Carolina: Joe Cabosky, for his open-door policy and his fierce devotion to friends and to the program; Laura Meadows, for believing in me, constantly reminding me to take care of myself, for the thinking bat, and late-night shooting sessions in Woollen Gym; Jesse Abdenour, for being a stellar officemate who’s always down for Aquemini session during a writing break, “whose mind warps and bends/floats the wind/count to ten/meet the twin/…who extends himself so you go out and tell a friend;” Meghan Sobel and Karen McIntyre, for expertly timed dissertation breaks at R&R; Tanner Frevert and John Fitzgerald, for making me laugh almost daily and always giving me a hand when I need it even when I get pretty salty; Pressley Baird, for the GOAT pound cake and the talks on rides home; Sophia Noor, for one of the world’s greatest smiles and constant encouragement; Brian Dykens, for being a devoted friend and workout (and Med Deli) buddy; Chris Etheridge, for rolling with everything and being a positive force for Carroll 366; Francesca Dillman Carpentier and Heidi Hennink-Kaminski, for helping me get back on my feet after dad passed and for helping me aim high in this program; Rhonda Gibson, to whom I owe a special debt of gratitude for encouraging me to reapply to the viii program and for teaching me the value of balance in academic life; my students, for challenging me and contributing perspective to my work; and to all of the Law Dawgs for sharing your gifts with me during the last four years.