When Should We Prohibit Offensive Speech?

September 4, 2009


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.


#1 PLaClair on Saturday September 05, 2009 at 5:13am

I agree that “offensive” speech can’t be limited without opening an enormous can of deadly worms. However, seeing that the radical right has mastered Hitler’s big lie strategy and is using it regularly, I am beginning to wonder whether demonstrably false speech should be limited, regulated or addressed in some fashion. I wonder whether we could devise a legal formulation that would address this problem without creating a larger one.

What we are seeing now with the birthers, the deathers, the don’t-kill-grandma ignoramuses and the don’t-listen-to-Obama crowd is a direct outgrowth, in my opinion, of Ronald Reagan’s politics. He proved that successful politics need not be based in fact. As similar strategies succeeded, they took over the population (evolution at work). If this trend is not arrested a reversed, our system of government may not survive.

#2 Ophelia Benson on Saturday September 05, 2009 at 11:39am

I second PLaClair.

I got into a protracted inter-blog argument a couple of years ago about this subject. I maintained that there is no such thing, at least normatively, as a free speech right to lie (in books and other media - private conversation is obviously another matter). Norman Geras of Normblog and a couple of philosophers disagreed with me, but I never really thought they made a case. Just for one thing, perjury is not legal; that alone would seem to indicate that there is no such right. If there were such a right would the NY Times and the New Republic have fired reporters who made things up?

What brought it up was the imprisonment of David Irving. People tend to describe Irving as controversial, offensive, wrong etc - but in addition to that Irving is known to have systematically and extensively falsified the evidence in his books. This emerged because Irving sued Deborah Lipstadt for libel for calling him a denier, and the defense hired the historian Richard Evans to do laborious, slow investigation of Irving’s citations. My view is that Irving has zero “right” to do that. I think the same should apply to tv talking heads and the like.

#3 PLaClair on Saturday September 05, 2009 at 5:15pm

I appreciate that, but you may notice that I don’t have a clear idea how to do it. That’s why I think we should put our heads together to see if we can devise a workable set of rules (laws).

#4 Nairb on Saturday September 05, 2009 at 9:59pm

This article tries to elevate Free speech abouve other fundamental rights such as equality.
Freedom of speech is important but freedom ends or should end when it begins to oppress others.
This is the basis of the restriction throgh Fighting Words in the USA. It is the same basis for the Dutch restriction of Hate Speech.

In the USA there seems to be a cultural attachment to the idea of a kind of unlimited Free speech.

Why is this?

In my opunion it is summed up in the final sentence of the article above - you are afraid of your own government.
In europe this fear is far less then something that can be far more sinister - communautarian groups with a political or religous agenda stoking up race or religous violence.

Europe has seen what this can do in the last century - 40 million dead and a continent destroyed. Attention to International and ethnic group sensibilities makes us more aware of religous and ethnic sensibilities with our countries.

Also europeans tend to see their government as being on their side and enlightened as opposed community groups who nearly always have their own interest atr heart at the expense of society.

It is europeans trust in the state over often sectarian groups that drives this.Just like in America it is distrust of the state that drives your extra attachment to Free speech.

Perhaps americans should trust their government a bit more.

#5 Ronald A. Lindsay on Sunday September 06, 2009 at 8:28am

First let me thank everyone for their comments. That said, I am unpersuaded.

I am as bothered by anyone else by materially false statements,especially when they are made intentionally for political reasons—and, unfortunately, gain currency among a gullible public.  As everyone knows, there is curently a debate over health care reform raging in the U.S. One proposal would allow Medicare reimbursement of physicians who spend time with patients who ask to discuss end-of-life options, including palliative care. Those who have labeled these voluntary consultations with patients over end-of-life issues as “mandatory death panels” provide one example of a thoroughly false and manipulative claim. 

But the way to respond to that tactic is for those who know the facts to point out the errors in the claim.  The solution is NOT to allow the government to censor or suppress claims considered false.  Think of all the claims throughout history that government or goverment-supported institutions have tried to suppress, such as the Copernican understanding of the universe, the theory of evolution, the “absurd” notion that women should be granted the same social and political rights as men, the claim that the native populations of various regions did not require the oversight of “advanced” European countries, and so forth.  The list is endless.  It is frankly surprising to me that given this history, some still advocate government supervision of speech. Which government officials are going to be empowered to determine when a claim is materially false?  Are all materially false claims to be suppressed or only those that pose a threat of harm?  And who decides what is significant harm? 

The David Irving case actually proves my point and shows how we should handle stupid, false claims.  The government did not suppress Irving’s garbage.  He was allowed to publish his books.  Lipstadt (and others)then did a magnificent job in exposing the absurdities of Irving’s claims.  Irving, of course, then brought a libel suit, which was probably the most ill-advised such action since Oscar Wilde’s libel claim. 

Lawsuits for defamation, are of course, one way to address false claims that damage one’s reputation, but these are claims brought by private parties, not the government. 

Similary, a newspaper or magazine is free to dismiss an journalist who publishes false stories because such conduct damages the paper’s crediblity. (But notice: the paper or magazine is also free to retain the journalist should it choose to do so.) The right of free speech applies against the government, not against private institutions such as employers.

The government does reserve the right to prosecute for perjury, but this deals with a materially false claim intentionally made during the course of a trial after the witness has made a solemn commitment to tell the truth.  To begin, perjury convictions are notoriously difficult to obtain, and second, the idea of turning all of our social and political life into the equivalent of a court hearing strikes me as unwise, to say the least. 

It seems to me that all three commentators are dangerously close to adopting the (former)position of the Catholic Church that “error has no rights.”  To the contrary, I believe errors have the right to be expressed—not least because yesterday’s “errors” not infrequently become today’s accepted facts. 

As to whether Americans are less trustful of their goverment than Europeans, that is a very broad claim, that is hard to refute or confirm with any degree of certainty.  I will say this: since the Bill of Rights was adopted in the United States in 1791, we have never had an authoritarian government and have been able to conduct free elections uninterruptedly, even in the midst of a civil war.  During that same time period of 200+ years, France, Spain, Italy, Germany, Austria, Hungary, Russia, and various eastern European states have had periods of authoritarian rule of one sort or the other. Government censorshp was an inegral part of the authoritarian regime in every instance.  Justification (to the extent it was given by the autocrats) was usually along the lines of “Franco, Mussolini, Napoleon, Hitler, the Tsar and so forth” know best.  If Americans are less willing to give control over free speech to a government, I must say that history proves the wisdom of their reluctance.

#6 Nairb on Sunday September 06, 2009 at 10:03am

Mr Lindsay

Government encroachment on free speech was a problem in the authoritarian regimes in europe in the 20th century. But it was not a Cause but a Consequence. Inequality and lack of solidarity (even racism) were also introduced by those regimes.

Europe is not giving up free speech by limitng it in a very mild way. Likewise the “Fighting words” exception does not mean USA has given up free speech.

What is important to note is that Freedom of speech is only ONE of a number of Fundamental rights and responsabilities. They should ALL be weighed against each other to decide on what are the best laws to apply in the interest of society.

In so doing Europe has reached a different conclusion; I dont think this is due to a lack of respect for freedom, but simply a greater concern for equality and cohesion due to a CONTEXT that is different.

Europe:  strong home culture and strong immigrant cultures (islamic)
Europe: History of extremist actions by both of these communities
USA : weaker (or more diverse) home culture, weaker (more dispersed and diverse) immigrant culture.

Probably both America and Europe have reached the

#7 Nairb on Sunday September 06, 2009 at 10:10am

Probably both America and Europe have reached the right balance in both their cases.

However I do think there is a sort popular fixation about Freedom of speech in America which seem to raise it on a pedestal above other rights.

All the varied benefits that we have in society today are not a unique consequence of Freedom of Speech.
They are the result of an enlightened constitution and a careful and rational balancing of fundamental rights , including the balancing of Freedom against other elements.

An example where Freedom of conscience should be curtailed is in the case of Seperation of Church and State. In France and USA this means that the state should be neutral relative to religions. However in France the non interference of religion in the state’s affairs is expected also.
This religous interference in affairs of state seems to be an issue that America could well do without.

#8 Ophelia Benson on Sunday September 06, 2009 at 4:54pm

“The solution is NOT to allow the government to censor or suppress claims considered false.”

But I didn’t say the solution was to allow the government to censor or suppress lies - and I also didn’t say “claims considered false,” I said “lies.” What I said was that I don’t think there is such a thing as a right to lie, or to falsify evidence. That doesn’t simply translate to saying that that means the government should censor or suppress lies or falsified evidence - and yet in fact the government does do that in courts of law, for instance, and we want it to. There are also truth in advertising laws. Would you want to see the Supreme Court throw out such laws on the grounds that they violate the First Amendment? I certainly wouldn’t - I’m not in a position to test most advertisers’ claims myself, and I want a government body to do it for me.

“But the way to respond to that tactic is for those who know the facts to point out the errors in the claim.”

I think that’s way too simple, partly because it’s too optimistic. That isn’t always possible, or practical, or compatible with keeping a job. Sometimes (not seldom) the only people who know the facts are the ones who will be fired if they divulge them. Sometimes the the only people who know the facts have a huge financial incentive to hide them. And so on. It’s complicated - and just saying that the way to respond is for someone to point out the facts is simply formulaic, and ignores all the real difficulties.

“The David Irving case actually proves my point and shows how we should handle stupid, false claims.”

But it doesn’t. If Irving hadn’t been stupid and vain and overconfident enough to sue Lipstadt, no one would ever have known about all his falsifications. It took Evans a huge amount of time and work to track them down, and he could only do it because he was being paid. Not every systematic falsifier is going to be as obligingly stupid and reckless as Irving was! Which is not to say that the government should be checking everyone’s footnotes - the idea is ridiculous. But I still say I do not believe Irving had a free speech right to falsify the evidence in his books.

#9 Ophelia Benson on Sunday September 06, 2009 at 5:05pm

A bit more.

“the idea of turning all of our social and political life into the equivalent of a court hearing strikes me as unwise, to say the least.”

It strikes me the same way! But is the only alternative defending a free speech right to lie?

“It seems to me that all three commentators are dangerously close to adopting the (former)position of the Catholic Church that “error has no rights.” To the contrary, I believe errors have the right to be expressed—not least because yesterday’s “errors” not infrequently become today’s accepted facts.”

No no no - I’m not talking about errors! I’m talking about lies - real lies - not just mistakes, not just fudging, but systematic deliberate lies, of the kind that Irving perpetrated. Altering the evidence. Irving didn’t do that by accident! There were far too many of them for that - as the court found.

I’m a big fan of free speech; I disagree with Nairb’s take; but I think lies are a different matter. I don’t mean errors, I don’t mean differences of opinion, I mean real lies. Homeopathists saying they can cure cancer might qualify.

#10 Ronald A. Lindsay on Monday September 07, 2009 at 7:24am

Thanks again to Narib and Ophelia Benson for their thoughtful observations. 

A short response to Narib: Censorship is often both the consequence and cause of authoritarian regimes.  Censorship is used to consolidate power in many cases. 

A longer response to Ophelia: First, regarding the example of truth in advertising laws, at least in the United States a distinction is drawn between commercial speech (speech that proposes an economic transaction)and other speech, in particular, speech that relates to political, social, historical or scientific propositions.  Commercial speech is entitled to less protection from government regulation than other forms of speech. It would take a monograph to discuss the commercial speech issue, but suffice it to say that I believe the Supreme Court is correct and closer regulation of commercial speech is justified.

My post obviously dealt with noncommercial speech.  I continue to adhere to my position that only minimal regulation of such speech is justified, and in particular, such speech should not be censored or suppressed because it is regarded by some as highly offensive.

Turning to your point that although the government should not be allowed to suppress false statements, there is no free speech right to “lie” and the government should be allowed to do something (censor? suppress? punish?) “lies,” a critical problem with such a proposal is the proof that would be required to establish that something is a lie as opposed to merely a false statement.  It seems to me that it would be exceedingly difficult to obtain convincing objective evidence of a “lie” in the vast majority of cases, at least not without inhibiting free speech.  Moreover, giving the government the power to regulate lies outside the commercial area almost surely will result in those out of power and out of favor being found guily of lies far more often than those in power. 

How would you distinguish between a lie and a false statement anyway?  Please do not just give the textbook definition of a lie as a “false statement made with the intent to deceive”.  “Intent,” as I am sure you are aware, is one of the slipperiest notions in both moral and legal philosophy.  In an earlier response I referenced the false claim that one of the health care proposals being considered in Congress would establish “death panels.”  Is the individual who initially coined this phrase guilty of a lie or merely a politically astute mischaracterization of the legislative proposal?  Is there a difference?  What is the difference, and what do we do with all those individuals who repeat this claim sincerely believing it to be true? 

And let us not forget the other side of the health care debate.  The Obama administration has claimed that its proposed expansion of health care can be funded without significantly increasing our budget deficit, and, in any event, only those with incomes higher than $250,000 are at risk of increased taxes.  Really?  It seems to me that this claim is disingenuous, but perhaps it is just wishful thinking.  And since projected budget deficits rely on a whole array of different economic assumptions, it would be nearly impossible to establish conclusively that this claim is a lie. Nonetheless, since you assert there is no free speech right to lie, such a claim presumably would be subject to scrutiny by some sort of government-operated Liars Panel.  Having all statements made in support or in opposition to legislation examined by the government to determine whether they constitute a “lie” would cause the legislative process to grind to a halt.  (Of course, some may welcome such a result.) 

Without belaboring the point, I think you can see what I am getting at—there is no reliable way for the government to suppress or punish lies without also affecting free speech and the type of give-and-take that is characteristic of a vigorous democracy.  And it is not just a question of the gvernment not having the resources to examine every footnote in every (allegedly) nonfiction book. The claims being made in the health care debate are highly visible.

Finally, I continue to believe the Irving case is not a relevant example.  Lipstadt and others did decisively refute Irving prior to the libel trial, although, of course, Irving’s libel claim succeeded in drawing more attention to these refutations.  Moreover, as previously pointed out, the libel suit was an action involving private litigants, with the government acting only as a neutral enforcer of the legal process.  Furthermore, Irving is a professional historian and can be held accountable for violation of objective research standards. 

This brings us back to the original subject of my post.  Do you believe the government should suppress or punish those non-historians who claim that the Holocaust is a fabrication?  As absurd and as offensive as such a claim is, I believe we should allow it to be made and that it is up to us, as private citizens, to respond as effectively as we can to such absurdities.  No, as you point out, such responses will not always be effective, but they are sufficiently effective, and private citizens taking responsiblity for establishing the facts is better than allowing the government to police such remarks.

#11 Nairb on Monday September 07, 2009 at 7:50am

Mr Lindsay said

Do you believe the government should suppress or punish those non-historians who claim that the Holocaust is a fabrication?

....private citizens taking responsiblity for
establishing the facts is better than allowing the government to police such remarks.

Yes , they should.

We allow the the goverment to police many more mundane things.
What about speed limits of 30Kmh? What about information on toothpaste?
The public do not have time to do such things and in a tense intercommunity situation it is a disastrous policy.

I agree with Ophelia. There is no reason why government should not also regulate such issues.

I think Americas fascination with Absolute Freedom of Speech is more due to a LACK of experience with Authoritarian regimes.
Authoritarian regimes dont spontaneously appear out of thin air. They can be seen coming.
They start out with religous or political communities getting away with and succeeding in getting votes through espousing hatred and exclusion and sectarianism.

This is the time to deal with hatred and control extremists, -  BEFORE they become a political force. Not (by supporting Freedom) when the extremists are in government. Its far too late then.

#12 PLaClair on Monday September 07, 2009 at 9:01am

Participants keep looking at this exclusively as a question of censorship. Another way to address the problem of lying in public discourse is to have a mechanism for disseminating facts. I’m concerned that nefarious people could gain control of our government (gosh, could that really happen?) and use the mechanism as another tool of distortion. That’s why I asked for ideas. Maybe there is a way to prevent the system from being abused. Maybe not. But considering the damage the radical right is doing to our country, by destroying its social and political fabric, it’s time to consider alternatives. No one here is advocating censorship. Please do not attribute words and ideas to me that are not mine.

#13 Nairb on Monday September 07, 2009 at 9:24am

Placlair said

I’m concerned that nefarious people could gain control of our government
In my opinion there are 2 ways of doing this.
“Prevention” : preventing others is through creating an effective action to filter out bad influence
“Dependance” : Weaken the government so that even if the govt is controlled by a hostile influence, its impact is limited.

The Absolute Freedom of Speech approach seems to fit in the second category. IMO it is a useless tool against government and an excellent tool for communities to manipuate individuals. Its effectively a tool of community promotion.

How useless it was,  is easy to see in the build up to the Iraq war. People were able to say what they want but it had no effect on the government propaganda machine.

Personally I prefer the “Prevention” approach.
Prevention could could include the following
1 A parliamentary executive instead of presidential one - ie limiting the power of the president.
2. Greater power for the states and their governments

#14 Ophelia Benson on Monday September 07, 2009 at 9:36am

“Furthermore, Irving is a professional historian and can be held accountable for violation of objective research standards.”

Ah - well that’s more or less the kind of thing I’m talking about. I’m not advocating for a role for governments to monitor lies - which would be unworkable, as you say, and pernicious in many ways, as you say. But I am questioning the idea of a right to lie. Is that incoherent? Does that automatically cash out as government monitoring? It seems to me it doesn’t.

I may just be talking about rhetoric - but I think I’m also talking about the underlying ideas or principles. People say things like ‘You have every right to say X just as I have every right to disagree with you about X.’ But I never hear people say ‘You have every right to lie about X’ - and I think that’s because most people don’t really think we do have a right to lie about X. We may have a technical right - that is to say, a legal right - but we don’t have a moral right.

Nairb, you don’t agree with me, actually, because I don’t agree that “There is no reason why government should not also regulate such issues.” I think there are reasons why government should not regulate such issues. But I also think there are complications, grey areas, differences between legal rights and moral rights, and so on.

#15 Ophelia Benson on Monday September 07, 2009 at 9:43am



“Do you believe the government should suppress or punish those non-historians who claim that the Holocaust is a fabrication?”

No. But do I think teachers in public schools should be able to teach that the Holocaust is a fabrication? Also no. Why? Because it’s a lie - it’s crap history - it’s untenable in the face of the evidence. Same applies, mutatis mutandis, to teaching creationism or ID in biology class.

So actually, in some ways, government does get into the business of suppressing lies. Ideally, it wouldn’t have to, because no one would try to teach lies in schools. But in the real world - things are different.

#16 Nairb on Monday September 07, 2009 at 10:22am

Sorry if I mischaracterised your view.

I dont believe its people’s (exclusive) job to go around informing themselves , criticising and mobilising a voice against every extremist that is trying to stir up community relations so that they can win a voting platform or get new religious converts.

Maybe this is a question of big versus small government. Its telling that europeans (despite being a diverse bunch) have gone this way.

To assume this is a recurrent failing of europeans to “get it” on how to manage a society using an absolutist approach to Freedom of speech , is not convincing to me.

#17 Ronald A. Lindsay on Tuesday September 08, 2009 at 7:14pm

Sorry to drop out of this conversation so abruptly. Today was devoted entirely to CEO matters—you know it’s not easy spearheading a humanist conspiracy to take over the world.
Anyway, I think we had pretty much exhausted this topic or at least reached a point where no one is likely to budge much more from her/his position.
I think Ophelia and I have clarified our views and have been able to achieve some measure of agreement. I agree with her there is no moral right to lie. But this is one instance among many where the government should not be enforcing morality. Legal regulation would cause more problems than it would solve. In taking a strong stand in favor of free speech I had principally the legal right to be free from government interference in mind.
About the teacher who claims there was no Holocaust: at least in the U.S. this likely would not happen (or happen for long) in a public school. Most states have “standards” for certain subjects that require certain topics to be covered in specific ways. The teacher could be disciplined for insubordination. But what if the teacher passes out Holocaust denial literature after school at some public forum, making sure that the literature makes no reference to her/his position as a teacher? Seems to me the person should have the legal right to do so.
To PLaClair:Did not mean to attribute any position to you that you do not hold. I understand you are not arguing for censorship, but would like to see developed some mechanism for responding to false assertions, at least those that might influence public policy. Interesting suggestion, but then we are back to the problem of who is going to control this mechanism for rectifying the record. As I think you recognize, if it is a government agency we might have some of the same problems we encounter with straightforward censorship.

#18 Nairb on Wednesday September 09, 2009 at 1:32am

Robert A Lindsay says
Today was devoted entirely to CEO matters—you know it’s not easy spearheading a humanist conspiracy to take over the world.

Keep up your great work. I am a huge fan.
I enjoy the comments section and hopefully this might help to build up an international community of humanists.
Hopefully one day you will create an active forum. This has been done by Dawkins and Sam Harris

I think there is a real demand for a virtual community of atheists because in many countries atheists have difficulty in connecting with other atheists.

#19 Ophelia Benson on Wednesday September 09, 2009 at 1:40am

Rock on humanist conspiracy!

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