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 noknowledge 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