When Should We Prohibit Offensive Speech?

September 4, 2009

Never.

That was an easy question to answer. If we believe in free expression, then the government should not be allowed to censor speech or penalize speakers, no matter how disgusting or repugnant their expression. And, yes, this includes speech that most humanists would find deeply offensive and revolting.

Which brings me to the ill-advised decision by Dutch prosecutors to charge an Arab cultural group for hate speech because they published a cartoon suggesting that the Holocaust is a fabrication. The rationale for this prosecution is that it insults Jews as a group and, therefore, is illegal under Dutch law. (See link at bottom of post.)

I'm no expert on Dutch law so I will not venture an opinion about whether the cartoon violates the letter of Dutch law. If so, however, the law should be changed.

In defending free expression we cannot pick and choose. Some may find cartoons unfairly ridiculing Americans or American leaders offensive -- but, presumably, we don't favor censorship of such material. Either we allow everyone to have their say, as sickening and as biased as their views may be, or we have the government deciding what is "too offensive." I prefer the former option.

Some of those familiar with American law might ask about the so-called fighting words exception to the Constitution's Free Speech Clause. It is true that, in theory, someone can be prosecuted for verbally assaulting someone else. But the United States Supreme Court has restrictively interpreted that doctrine so that "fighting words" must pose a threat of an imminent confrontation and serious violence. Essentially, the offending person must be literally in the face of another person. Publication of a cartoon obviously fails to meet that criterion.

Anti-Semitism persists. It is a sad reminder of the stupidity of some humans that the most absurd prejudices continue to exist. But suppressing speech is not the answer. That will only succeed in people masking their true sentiments and making martyrs of those prosecuted. Bigoted speech should be confronted not by government censorship, but openly by the outraged public, who can freely express their justifiable condemnation of speech motivated by racial or religious hatred. Picket the offices of the group that published the cartoon. Criticize them vigorously and repeatedly in editorials, articles, blog posts and so forth. But let the idiots have their say.

Because no one's speech is safe when the government decides which speech is safe.