Offensive Speech and Behavior

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Offensive Speech and Behavior
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Arguments for Restrictions

• Speech is other-regarding
• It can harm others in various ways

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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

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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

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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

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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?

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Offensive speech

• Hate speech
• Fighting words (Chaplinsky v. New Hampshire,
  1942)
• Obscenity
• Ridicule

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Offensive behaviors

• There are offensive behaviors we ban without
  controversy
• Public nudity
• Public sexual acts
• Public displays of dead bodies
• Loudspeakers in residential neighborhoods

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Offensive behaviors

• There are offensive behaviors we tolerate without
  controversy
• Sticking out ones tongue
• Making faces
• Hissing, booing
• Toilet humor
• Whats the difference?

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Offensive behaviors

• Flag burning
• Cross burning
• Obscene gestures
• Inappropriate laughter (University of Connecticut
  speech code)
• Looks, leers, stares

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Platos 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, were justified in prohibiting it

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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

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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

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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, were justified in restricting behavior to
  protect it

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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 dont have to tolerate intolerance

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Speech and action

• How does speech differ from other other-regarding
  actions?
• If it doesnt, freedom of speech freedom of
  action in general
• But obviously we can restrict freedom of action
  to protect others

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Speech and action

• To protect them from unjust harm, yes.
• But to protect them from offense?
• Were back where we started

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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

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Arguments for Free Speech
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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."

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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)

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Infallibility

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

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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"

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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)

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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

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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)

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Practicality Argument

• The availability of media makes censorship
  impractical (Milton)--
• except (even?) as carried out by a totalitarian
  (and ruthless) State

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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

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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

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Incentives Argument

• Rewarding offense produces more offense
• People have incentives to claim to be offended
• Restrictions inevitably spread

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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?

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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