Offensive Speech and Behavior

Arguments for Restrictions

Speech is other-regarding

It can harm others in various ways

Harmful speech

Speech can lower overall happiness and so deserve to be prohibited:

Shouting “Fire!” in a crowded theaterSlander and libelHarassmentIntentional infliction of emotional distressThreats of violenceTreasonIncitements to riot or engage in terror

Harm vs. Offense

How does offense differ from harm?

Offensive speech and behavior does not cause

physical harm

economic harm

But it may cause emotional upset and disturbance

Rights

Do people have a right not to be harmed?You have a right not to be murdered, kidnapped, robbed, etc.But you might also be harmed if someone fires you, or dumps you, or opens a competing businessYou have a right not to be harmed unjustly

Rights

Do people have a right not to be offended?At best, you have a right not to be offended unjustlyBut is there any such right?

Offensive speech

Hate speech

Fighting words (Chaplinsky v. New Hampshire, 1942)

Obscenity

Ridicule

Offensive behaviors

There are offensive behaviors we ban without controversy:

Public nudity

Public sexual acts

Public displays of dead bodies

Loudspeakers in residential neighborhoods

Offensive behaviors

There are offensive behaviors we tolerate without controversy:

Sticking out one’s tongue

Making faces

Hissing, booing

Toilet humor

What’s the difference?

Offensive behaviors

Flag burning

Cross burning

Obscene gestures

Inappropriate laughter (University of Connecticut speech code)

Looks, leers, stares

Plato’s Argument

Speech and behavior affect character

Society is justified in prohibiting what will produce vice and encouraging what will produce virtue

Some speech and behavior encourages vice

So, we’re justified in prohibiting it

Social Cohesion Argument

Restricting speech brings about greater social cohesion

Protects individuals

Protects marginalized groups

Increases mutual respect

Allows for individual differences

Lets people work together more effectively

Fundamental beliefs argument

Every community is based on certain fundamental beliefs and values

Speech can undermine those beliefs and values

Communities are justified in prohibiting things that would undermine them

So, every institution is justified in prohibiting some speech

History and Tradition

History and tradition are guides to what is truly fundamental

The history of the flag, for example, might show it to be a fundamental symbol of our nation

So, we’re justified in restricting behavior to protect it

Subversion

Similarly, we might restrict speech that aims to subvert our nation or society

So, we might restrict speech advocating revolution, violence, terrorism, etc.

We might also restrict intolerant speech

We don’t have to tolerate intolerance

Speech and action

How does speech differ from other other-regarding actions?

If it doesn’t, freedom of speech = freedom of action in general

But obviously we can restrict freedom of action to protect others

Speech and action

To protect them from unjust harm, yes.

But to protect them from offense?

We’re back where we started

Vagueness

Much speech and behavior is symbolic

It can be hard to distinguish statements or actions from threats

History shows that certain kinds of statements or actions (e.g., cross burning) have links to violence

Arguments for Free Speech

Truth

The opinion may be true.

Mencken: "All the durable truths that have come into the world within historic times have been opposed as bitterly as if they were so many waves of smallpox."

The value of truth

Truth is valuable

For what it can do for us instrumentally

For its own sake

For us to be free (cf. Mill's third condition on true agency-- to be free, one must be informed)

Infallibility

To claim no possibility of truth is to claim (unjustifiably) infallible knowledge

Partial Truth

A false opinion may contain part of the truth.

Mill: "the prevailing or general opinion on any subject is rarely or never the whole truth"

The value of falsehood

Even totally false speech and opinions reinforce truth

People who hold a truth without being able to say why hold it dogmatically

Without challengers, its vitality is likely to be lost (Mill)

Its meaning, in time, is likely to be lost (Milton, Mill)

Virtue Argument

Virtue forged by trial: without temptation, virtue is undeveloped or insecure.

”Look how much we thus expel of sin, so much we expel of virtue: for the matter of them is the same; remove that, and ye remove them both alike." (Milton)

We develop character by forming opinions and being able to defend them

Trust Argument

Who has such a superior intellectual or moral outlook to be trustworthy as a censor?

Why would such a person want to be one? (Milton)

Practicality Argument

The availability of media makes censorship impractical (Milton)--

except (even?) as carried out by a totalitarian (and ruthless) State

Neutrality Argument

Suppressing ideas is risky-- "a 'mistake' becomes whatever it is that the authorities don't like to hear" (Rauch).

Authorities are rarely neutral

Against Censorship

Pain is required for knowledge

Rauch: "A no-offense society is a no-knowledge society.”

The cost of recognizing a right not to be offended, or even offended unjustly, is too high

Incentives Argument

Rewarding offense produces more offense

People have incentives to claim to be offended

Restrictions inevitably spread

Vagueness Argument

There are many degrees of offense

The lines between factual disagreements, annoyances, irritations, offenses, outrages, and harms are vague

Where does one draw the line?

Inquisition Argument

Erasing line between speech and action causes harm

If words are bullets, then speech may be answered with violence

Science itself becomes a form of violence that has to be policed and stopped-- an Inquisition