Monday, January 12, 2015

Gratuitous Offense

by Michael Dorf

Last week, a colleague half-jokingly asked me whether, in support of freedom of speech, I would be republishing the cartoons that played a role in inspiring the anti-Charlie Hedbo terrorists. My negative answer was taken as a sign of my cowardice. Perhaps it is, but here I want to argue that it is not only a sign of cowardice. It's also justified by my not wanting to give gratuitous offense.

Before making my point, however, I want to credit what I take to be the strongest argument for the contrary position. It goes like this:
The more that society gives licence for people to be offended, the more that people will seize the opportunity to feel offended. And the more deadly they will become in expressing their outrage. There will always be extremists who respond as the Charlie Hebdo killers did. The real problem is that their actions are given a spurious moral legitimacy by liberals who proclaim it unacceptable to give offence.
That's a quote from a forceful piece by Kenan Malik, but I think it is nonetheless wrong if taken as an argument for the proposition that there is always some sort of duty to liberal democracy to publish material that others will find offensive simply in virtue of the fact that they will be offended--which appears to be how Malik intends it. The same idea was lurking in my colleague's accusation that any liberal's failure to republish material that others find offensive is a cowardly betrayal of free speech principles.

A more limited version of this idea also led Mel Nimmer to say the words "fuck the draft" during the oral argument in Cohen v. California, notwithstanding CJ Burger's admonition not to "dwell on" the facts. Nimmer reasoned (correctly in my view) that his failure to say the word "fuck" in the Supreme Court would undercut his argument that his client had a right to wear a jacket bearing that word in a California courthouse.

So I acknowledge that it is sometimes helpful, indeed necessary, to give offense in order to protect the right to give offense. Sometimes, but not always.

The legal questions here are pretty easy. Is there a right to speak even when some people find the message offensive? Yes, definitely. Should people who commit horrific acts of violence because they find others' speech offensive be excused from liability in any way? No, of course not. But the questions of how any particular private citizen (including bloggers) should act are more complex.

Imagine that a humor magazine published articles that referred to gay men as "f-----s" (hereinafter "the f word"), thereby deeply offending and causing emotional distress to gay men and others. Now suppose that a small but militant minority of gay activists engaged in deadly terrorism against the humor magazine. Would it be sensible for other journalists to start using the f-word, in defense of the principle that people should not be intimidated out of their freedom of speech?

I suppose that's not a completely irrational response but it hardly seems to me the best response. After all, using the f-word would not merely communicate that journalists won't be intimidated. It would also give offense to perfectly innocent people.

The f-word should be regarded by everyone as offensive.  Indeed, many constitutional democracies (though not the U.S.) ban some such words as hate-speech. By contrast, a visual depiction of the Prophet Mohammed, absent more, would not be hate speech even in countries that forbid hate speech. And so one might think that use of epithets like the f-word is generally offensive, whereas depictions of the Prophet, absent more, are only offensive to some devout Muslims.

But so what? Is there any good reason to deliberately offend some substantial group of people? There might be if the taking offense is itself offensive. Suppose that a racist finds pictures of interracial couples holding hands offensive. His taking offense is itself an expression of his offensive racist view, and so non-racists would be giving in to racism by self-censoring pictures of interracial love.

Some religious views may be justifiably understood by non-adherents to the religion as offensive. For example, if some religious people find depictions of happy same-sex couples offensive, well, that's just not a good reason for any of the rest of us not to include such depictions in a magazine or elsewhere. The religiously-inspired offense here comes at the expense of others, and so we shouldn't credit it.

But that's not true in the actual example. Finding depictions of the Prophet offensive does not marginalize or denigrate anyone else. As a non-Muslim, I don't find depictions of the Prophet offensive but the fact that other people do find them offensive does not offend me in any way.

Now I suppose that might not be true of others. If someone believes that there were no true prophets after Jesus or Ezekiel or someone else, she might also think that Mohammed was a false prophet and so she thinks that when Muslims are offended by visual depictions of him, their offense taking is itself offensive. But in this case we would more properly say that she is offended by Islam itself. And in a pluralist society, that seems like a very weak reason for taking offense at someone else's taking offense on religious grounds.

Perhaps I'm being overly solicitous of others' feelings but it seems to me that one ought to have a good reason to do or say something that will offend, and thus hurt, many other people when their offense and hurt are not themselves problematic. And simply wanting to give offense, or to make a point that can be made equally well in a non-offensive or less offensive manner, is not a good reason.

Here's another analogy. It seems to me appropriate for a public high school teacher to assign her students Huckleberry Finn, notwithstanding its use of the n-word because the offense and hurt can be mitigated by sensitive contextualization, and to the extent they cannot, the offense and hurt are outweighed by the fact that the book is great literature. By contrast, use of the n-word in many other contexts, even many contexts not involving minors, would be gratuitously offensive. Consider Michael Richards, for example.

What would count as a good reason to depict the Prophet in a society with many people who would be offended? There would need to be some countervailing interest, like knowledge. Suppose an archeologist found some important items that included such depictions. A magazine devoted to archeology would then have good reason to show them, just as Jytte Klausen had a good reason for republishing the Danish cartoons in her study of the controversy surrounding their original newspaper publication--or at least she had a substantially better reason for doing so than the newspaper that first published them did. Klausen says that the newspaper's aim was to offend for the sake of provoking, whereas her aim was to shed light on the controversy, even if doing so had the marginal additional impact of giving offense.

Let me conclude with two fundamental points. First, I am talking here about appropriate standards for mature adults to impose on themselves as a matter of civility and respect, NOT about legal restrictions. A well-functioning democracy with respect for freedom of speech will not subject people to any sort of punishment for a great many uncivil and disrespectful acts and statements.

And second, it goes without saying (but I will say anyway and again) that uncivil, disrespectful acts and speech cannot remotely justify or excuse violence in response. People who resort to such violence should be punished to vindicate their victims' right to freedom from violence and also to protect freedom of speech, because private threats of violence can have a profound chilling effect on speech.

Thus, I agree with George Packer when he writes that the anti-Charlie Hedbo gunmen were "soldiers in a war against freedom of thought and speech, against tolerance, pluralism, and the right to offend—against everything decent in a democratic society." But there are many ways to fight back on behalf of those precious ideals. It is not necessary to give offense, or at least not always necessary to give offense, in order to defend the right to offend.


Shag from Brookline said...

Self-editing is an important task in writing. Is it the writer's intent to offend? The self-editing can be difficult at times. That's just a start. Those whose writings are also edited by others before full publication are a next step.

The quote from Malik is not marked. Could the first line's "offended" be in error? Should it be "offensive"? Is the "license" that of the "offender" or that of the "offended", or both?

A remote example of Malik's "And the more deadly they will become in expressing their outrage." may be those extremists here in America who may think that the 2nd A trumps the 1st A. Fortunately such extremists are few and far between, . But is "self-defense" in the mind of the person "offended"? (Keep in mind that per Erie there is no federal common law so that it would appear that the concept of "self-defense" per Heller - 5-4 - would be determined at the state level and we have seen changes from the common law to statutory changes such as "Stand Your Ground" regarding the concept of "self-defense").

Should there be some balancing of rights of "offenders" and those "offended'? That's a matter of self-editing. But the late George Carlin had it right even though he lost; but George was not uncivil. Some people are overly sensitive. If there is a right to offend, is there a right to be offended? Does it depend upon the degree of each right? "My right to extend my arm ends at your nose." Granted, we are not talking about a physical injury here by the offender but consider how the offended might react. Do offenders take their victims as they find them or is there a "reasonable person" standard?

Michael C. Dorf said...

On ReligiousLeftLaw, my colleague Steve Shiffrin has a post on the related question of whether European countries that ban hate speech ought to ban depictions of the Prophet Muhammed under that rubric:
His answer, with which I agree, is no. (Steve and I discussed these questions in private last week, which explains the seemingly coincidental timing.) Steve also says that he thinks a European country that bans racist hate speech could draw a different line with respect to religious hate speech. I'm less comfortable with that conclusion, however, because it strikes me that, in modern times, religious hate speech very often has an ethnic/racial dimension. Antisemitism in Europe is an obvious example and Europeans on the left today worry about Islamophobia, not because they want to protect militant Islam but because they want to protect the many Muslims who do not share the ideological/religious views of militant Islamists. Thus, the sorts of reasons advanced for banning racist hate speech in Europe apply at least as strongly--and given Europe's history, perhaps more strongly--to religious hate speech. Because I take the "American" view that hate speech falling short of incitement generally shouldn't be banned, I find this question academic. But if someone agrees with racist hate speech bans, I think it doesn't make sense to distinguish religious hate speech.

David Ricardo said...

Gosh, what an excellent post by Mr. Dorf, making excellent points.

One of the best illustrations of what he is saying involves the current controversy with respect to the Washington NFL team. That team has taken a name using a term that is highly offensive to Native Americans (and many of the rest of us). The owner refuses to change the name and says that he has every right to keep using that name. And indeed he does have that right.

But the owner of the team should change the name because in a society that is comprised of individuals and organizations that show respect and compassion for others, refraining from using an offensive term should take place regardless of the right to use that term. If the owner of the Washington Potomac Drainage Basin Indigenous Persons (as called by Gregg Easterbrook, brother of Frank) were a decent individual he would change the name because that is what a decent person would do.

Mr. Dorf’s posting can be summed up as follows.

Just because you have the right to do something doesn’t mean you should do it.

Good advice.

Michael C. Dorf said...

A reader who wishes to remain anonymous sent me the following thoughtful comment by email:

I fully agree with everything that you have written here. It is possible, as a private individual, to deplore the violence as absolutely unacceptable without also applauding, or participating in, the gratuitous giving of offence. However, as a society don't we have a collective duty to ensure that violence cannot be used to silence offensive speech?

It seems to me that successfully bringing the violent offenders to justice is not sufficient for this. If the violence succeeds in ending the offensive speech then we live in a society in which violence, while being punished, has nonetheless trumped free expression. If on the other hand, the response to the violence is an echo and an amplification of the offensive speech then free expression, while still having suffered grievously (people have died, and others will be more afraid in the future to give offense), has not been trumped.

You write that "there are many ways to fight back", and I wish that you could elaborate on that. Have we fought back effectively if the violence leads to silence?

Supposing there is indeed a collective duty to reproduce the speech, then I wonder who in society should take on that responsibility? In the current situation, there was no shortage of volunteers. Most, I would say, were well motivated. But too many, surely, were happy to find legitimate cover under which to give offense. In any case, in these circumstances it is easy for any one individual to abstain because of quite legitimate scruples about the content of the speech.

A harder case would be if people as a whole were cowed. Who then, if anyone, would be responsible (supposing there is such a responsibility) to reproduce the offensive speech?

You bring up the case of scholars, such as Klausen, who are writing about the phenomenon. What do you feel about Yale University Press's decision not to reproduce the images that she was writing about? It is a very public example of a press bowing to fear of violence, and in the process weakening scholarship and free inquiry. The press certainly did not have a legal obligation to reproduce the images, but did it not have a professional duty to do so?

A similar issue has arisen with much of the US press declining to publish the cartoons. Are they not failing in their duty to act as a free press and inform? An editor of The New York Times seems to have <a href="”> lost his professional cool</a> over this question.

Michael C. Dorf said...

Thanks for all the comments. In response to the anonymous post, two quick thoughts:

1) I thought the Paris unity rally yesterday was an excellent way to combat the efforts to intimidate without reproducing the cartoons.

2) I think the position of Yale University Press was not professionally justified for the reasons you state, although there's something to be said for cowardice here. The Press has a responsibility to its readers and to the principle of free inquiry but it also has a responsibility to its employees. The same is true for the NY Times. With respect to both, I guess I would say that "cowardice" is justifiable (or at least excusable) so long as the publications are not giving substantially more weight to the safety of their own than they give to the safety of others--as when, e.g., they publish material that could endanger the subjects.

Shag from Brookline said...

If these images are readily available on the Internet, and I believe they are, isn't it overkill for the NYT and Yale Press to include them as well? What if Fox News published the images over and over again as illustrative of its policies regarding Islamists? Should all in the media publish such images so that every man, woman and child would be exposed thereto? How about torture photos? Those interested can find such with fairly simple computer key strokes. Just as Mike has discretion, so too do Yale Press and NYT.

Unknown said...

Quite some time ago (in the late 60s-early 70s), Bill Cosby made a short film in which he made offensive, stereotyped remarks about just about every ethnic group, race, religion, and the genders. It was shown to some first-year college students who were asked to give their opinions about the piece. To a one, they professed to be deeply offended. The last one to comment, however, somewhat sheepishly asked, "Isn't that satire?" The professor was pleased that at least one student got it. The Charlie Hebdo newspaper is widely described as a satirical publication. Is it that people don't understand satire, or is it that Charlie Hebdo's goal was actually to offend without the "noble" intent a drawing attention to that which is offensive? The difference is important. Is MacFarlane's depiction of the Jewish pharmacist meant to offend Jews or to call attention to people who hold the views depicted? And does it matter whether Charlie Hebdo's cartoons can be thought of like MacFarlane's Jew when one is considering whether to republish them? How much must we take care lest we offend those who don't understand our intent?

Joe said...

HUSTLER MAGAZINE v. FALWELL touches upon the "value" of offensiveness, including the argument by the defenders of Hustler that it can be a means to cut down to size certain powerful people or groups.

Some minority groups that are discriminated against at times can purposely offend or be outrageous (leading some supporters to say "hey, i agree with ya, but can you like tone it down, a tad?") the other side. They do not just do things like hold hands but something more explicit.

A sort of "fu" is one way people protest, rebel and/or express themselves. It might be hard at times to draw a line between this and some sort of totally gratuitous offense.

Anyway, it's a touchy subject. After the murders, some people had a set line "we are with Charlie Hebdo and they have a right to say what they did." Surely. But, at times, legal satire can also be gratuitous satire. I strongly oppose those who are against same sex marriage and other things. I still cringe at times when reading some of the crude things people say about such people. It to me is not necessary and demeans us at times to do things like that.

Polite disdain at times can be the best weapon.

Unknown said...

Some points I think worth considering which in turn help bolster the argument made by this article are:

1. The claimed offense, depicting Mohammed, is not actually prohibited by the Koran, as Some have claimed.

2. Neither is insulting One claiming to be a Prophet.

3. Even if such actions were prohibited by the Koran, it does not condone, much less command, the use of violence in response.

4. (And here is where I bolster the argument in the article) Even if the Koran did do as claimed, demonstrating thoughtful and conductive reflection before offending the Innocent helps to undermine whatever cause violence seeks to achieve.

Greg said...

I would argue that in a free society it is important that "someone" exercise their freedom to utter the words that everyone else finds offensive and distasteful.

The reason for this is that it is only by ensuring protection for speech that everyone considers offensive that we can protect valuable speech that a few would find offensive. It is only by having people who say that which no one else would dare say that we can ensure that our laws protect all people's viewpoints and right to express them.

To be fair, I view expressing such offensive viewpoints, if done simply for the sake of expressing them, as a form of enduring personal sacrifice for the greater good. It is not that I think people who say the unsayable should not be subject to public ridicule, they should be publicly condemned. However, privately I also understand that it's only by protecting the patently offensive that the simply unpopular can be protected.

This is what bothers me so much about European-style hate speech laws. These seem to amount to agreement that certain forms of speech are so offensive that they should not be allowed to be spoken. However, if there is agreement that any kind of speech can be illegally offensive, how can society protect those who hold minority viewpoints that tomorrow might be considered so extreme as to be illegally offensive?

CEP said...

I'm going to take gratiutous advantage of the "war on" meme, and of my experience as a military officer, and agree with Professor Dorf for two separate reasons.

(1) Economy of force: If one knows that the offending works have been republished in a sufficiently wide-availability form, adding one's own republication is just a waste of ammunition... unless one has something specific to say that requires direct reference (as opposed to reliance on general availability). In short, expecting everyone to shoot at once is bad tactics and bad logistics... and then there's the whole problem of "collateral damage" that arises from excessive application of firepower.

(2) Not everyone is cut out to be a soldier... and being not cut out to be a soldier does not make one a traitor. More directly, one is not betraying the cause of free speech by failing to lob a verbal Molotov cocktail at every opportunity.

In that sense, I'm a gratuitous soldier. But I'm a professional. ;-)

Anonymous said...

David Ricardo writes, "Just because you have the right to do something doesn’t mean you should do it."

I am not persuaded by this line of thinking because it comes close to advocating for the obsolescence of free speech by desuetude. This was a major point of the career of MLK summed up in his favorite "bounced checked" analogy. Simply insisting that a person has a formal legal right to do something but yet it's not the type of thing that "decent" people do is exactly what often happened in the South, still sometimes happens in the South.

We ought to insist on vigorous and robust, even offensive public speech. The burden of proof should be on the listener to justify his or her sensitives, not on the speaker to justify his need to be blunt. The whole idea of freedom of speech is to protect the right of the aggressor. Phrased differently, freedom of speech isn't a balance test; it is the presumption from which exceptions get carved out.

Yes, of course, the essence of ethics is that not every thing that one can do is what one should do. Nevertheless, it is also a truth that rights are like muscles--if they are not used they waste away. The Founders, it seems to me, in putting Freedom of Speech in their first amendment were much more concerned about this process of wasting away than they were of giving offense.

Joe said...

I'm not sure we have to worry about offensive speech in this day in age happening in society in general.

I don't think offensive speech will "waste away," e.g., if we don't have a football team with a name that was a traditional epithet akin to calling it the D.C. Coons or something.

Offensive speech will still thrive in enough places not to have died out.

Joseph said...

I agree with much of this. What I do find unfortunate is that some news outlets absolutely refuse to show the cartoons even though they are news-worthy and serve to provide people with knowledge. I find this most acutely with the latest Charlie Hebdo cover (far less so in showing past covers). Aside from the religious offense of depicting Muhammed, the latest cover is a response to the act of terror and the response thereto (the cover is not at all obscene, sexual, or violent). I think its relevance greatly outweighs the offensiveness that some perceive. We can rationalize the decision not to show it based on the existence of the internet which provides ready access to the image, but that's a poor excuse for exluding a news-worthy image (as CNN has done, for example).

It is nearly impossible not to conclude that Islam is being shown more respect than other religions. The new cover should be shown by any respectable news outfit not as an endorsement or gratuitous exposition, but to show an important part of the story.

Joe said...

In general, Christianity gets more respect in this culture than other religions.

The fact that in certain limited cases fear of insult might be an exception might be true [though the magazine here insults far right Christian types too & I'm unsure how much mainstream media sources would -- except maybe South Park -- provide crude images of Jesus] but really how much does that diminish the usual rule?

Shag from Brookline said...


"We ought to insist on vigorous and robust, even offensive public speech. The burden of proof should be on the listener to justify his or her sensitives, not on the speaker to justify his need to be blunt."

should be evaluated with the "fighting words" doctrine under the 1st A. Also, consider the 1st A's "free exercise" clause; might this clause afford a defense to one exercising his/her religion by protecting (in his/her mind) it?

Is James suggesting that non-vigorous, non-robust and/or non-offensive public speech (or the exercise of other rights under the 1st A and other of the bill of rights) would be wrong? James' burden of proof requirement may apply in a court of law but not necessarily in the "court of public opinion."

Unknown said...

The burden of proof should be on the listener to justify his or her sensitives, not on the speaker to justify his need to be blunt. The whole idea of freedom of speech is to protect the right of the aggressor. Phrased differently, freedom of speech isn't a balance test; it is the presumption from which exceptions get carved brush
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