Benjamin Bestgen: The right (not) to be offended (Free Speech II)



Benjamin Bestgen

Benjamin Bestgen takes a further look at free speech this week, see last week’s jurisprudential primer for part one.

Open a newspaper or look through social media and you will find people expressing their upset about all kinds of real or perceived wrongs.

Taking offence with expressions of other people is probably as old as humanity itself. Priding ourselves at being somewhat civilised, we have stepped back from stripping offenders naked and flogging them in the town-square. Our pillories are largely digital now.

Debates about cancel culture, trigger warnings, intellectual “safe spaces”, non-platforming or call-out culture rehash an old issue with freedom of expression: it appears that to some people, freedom of expression must be restricted where a person expresses views that are deemed offensive to others.

In recent years, various debates across political and social spectrums seem focussed on the offensiveness of expressions rather than their veracity. Even generational divides opened up: elders complain about young “snowflakes” who immediately cry about some “-ism” and are accused of being overly sensitive regarding issues of environment, equality, ethnicity or sex and gender relations. In retaliation, younger people point out that “boomers” and “gammon” are equally sensitive if they get called out on their greed, casual race- and sexism, environmental ignorance or affinity for nationalism and parochial attitudes.

Freedom of expression and harm

Philosopher John Stuart Mill argued for largely unrestricted freedom of speech for everybody, believing in utilitarian fashion that in an idealised “marketplace of ideas” all thoughts should be heard and examined, no matter how immoral they may seem to some. The best ideas would eventually float to the surface and benefit society at large.

Mill’s main test for permitting limitations on free speech was whether a particular expression would cause harm to the rights of other members of society.

But arguably a lot of political and religious speech is bigoted, immoral, deceitful, offensive, dishonest or hateful. Does that cause enough harm to the rights of others to justify limiting political or religious expressions? And what about violent movies, videogames or pornography? These are partially empirical questions, hard to answer from an armchair.

Offence

Some thinkers believe the harm principle is too narrow. Even Mill acknowledged that certain acts and expressions, if done publicly, could be a nuisance and offence against others which may be censored.

Philosopher Joel Feinberg argued that some expressions are so grossly offensive that even if they don’t cause direct harm to another’s rights, society can be justified in prohibiting or restricting them.

Political scientist David van Mill discusses Feinberg’s proposal, noting various considerations before deciding whether an expression should be restricted for offensiveness: “These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community.” Context also matters: a controversial expression may be appropriate at university, where great social value lies in the unrestricted debate and exploration of ideas. The same expression may be entirely inappropriate in a restaurant or courtroom.

But to critics, offensiveness seems too fickle and aesthetically driven to justify censorship. Many people are easily offended, be it because they are overly sensitive, ignorant or prejudiced. Others take offence not because of what was said but because of who the speaker was or how they said it. Still others find humour in topics that are deadly serious to their neighbours.

Satire is often an interesting test case for offensive expressions and censorship: in recent years, one might consider the “Juice Media Controversy” in Australia, the exploits of British comedian Sacha Baron Cohen or the violent retaliation against cartoonists lampooning the prophet Muhammad.

Rights not to be offended

Few countries in the world have freedom of expression rights as unrestricted as in the US, which places a very high value on individual rights to say and do as one wants. Most liberal democracies recognise that there some expressions which an objective, fair-minded observer would probably deem intolerable if we are to live together in a reasonably peaceful manner. In a way, laws against harassment, defamation, bullying or discrimination are rights which at least partially protect the victim against offensive acts or expressions in some areas of life.

Legal philosopher Jeremy Waldron also makes a case for prohibiting hate speech, which are expressions that voice hatred and/or encourage violence against a target due to their sexuality, gender, ethnicity or religion. Hate speech undermines over time the target’s standing as an equal member in society, their claim to basic rights, liberties and recognition, their reputation and dignity. Permitting hate speech normalises and gives a platform to the messages against the intended target with a corrosive effect on how we think about and treat the affected people.

Therefore, limitations to grossly offensive expressions can be reasonable as they protect societal cohesion. They also help minorities or less powerful persons to make their interests heard without being further marginalised, excluded or even dehumanised by persons or groups more powerful than them.

The ongoing question is always where to draw the line between offensive expressions we must tolerate and those we can justifiably prohibit. This is a line we are constantly challenged to negotiate together as a society – if we don’t, somebody will do it for us and we might not like the results.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.



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