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 theater Slander and libel Harassment Intentional infliction of emotional distress Threats of violence Treason Incitements 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 business You 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 unjustly But 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