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.