Offence and Freedom

An issue that I have noticed occurring very frequently at the moment is the relationship between freedom and offensive speech. In fact it is not just offensive speech but various other actions that whilst doing no physical harm, are seen as offensive. A far from exhaustive list of related controversies include the ban on religious hate speech, Danish Cartoons and most recently the building Cordoba House near Ground Zero. So this raises two questions, first what makes words or actions offensive and secondly how should we react to offensive speech and actions. The definition of offensiveness is that it causes ‘anger, displeasure or injury’. For the sake of this discussion I’m not concerned with actions which cause physical injury, as we can generally accept that they are wrong, with a few exceptions. What interests me is the causing of anger or displeasure.
I also want to make a distinction between legal and moral, two things that are surprisingly often confused. For this article legal refers to the laws that governments make and moral refers to what individuals should or shouldn’t do. (Of course both these definitions are sketchy, but this blog post is not an academic essay.) What I want to argue is that individuals are morally obliged to try to avoid unnecessary offence, but that this should not be a legal matter. In other words it is wrong for me to call someone a prick but it should not illegal for me to do so. Why? There are three reasons I shall go through.
The first reason is the subjectivity of offence. Say I’ve go two friends, Dave and Mike. One evening, down the pub I greet them by saying ‘how are you two bastards doing?’ (Not the best banter ever I realize, but what can you do?) In this example Dave responds with a witty response, but Mike finds my greeting offensive. (We needn’t go into the reasons why.) The point here is which one, if either is in the right? I didn’t intend to offend either but the fact is I did. Now is this offensive, or is that just the case that Mike cannot take a joke. It seems to me that the answer is both; it offends Mike because he cannot take the joke and that makes it offensive. This illustrates one reason why it offence should not be a matter of legality. We frequently give offence without meaning to, and in ways that offend one person but not another. How therefore is the law, which by nature must deal with a large number of humans, supposed to regulate this?
Related to this is the second and to my mind most important reason. Offence is frequently an unintended consequence of criticism. Willingness to give and recive robust criticism is vital to many endeavours. Who hasn’t been told things that they are doing wrong, or could do better? Similarly if I disagree with your point of view, then the way for me to try and convince you, is to criticize that view whilst offering reasons to follow mine. Of course not all criticism is seen as offensive but it can be hard to predict what will be. There is also the fact that sometime the way to make a point is to do it in a very direct and robust value. If you try to soften a criticism you can obscure the point.
The third reason is that we are not talking about physical injury here. I would also include things like defamation whereby there is an obvious harm and a clear test as things we can legislate. But when it comes to statements, critcisms and actions, where the worst they do is insult and which aren’t lies then it seems that there are two things to be done. The first is to grow a thicker skin and the second is to try to avoid and challenge offence, but to do so individually and with words rather than anything else. An issue that I have noticed occurring very frequently at the moment is the relationship between freedom and offensive speech. In fact it is not just offensive speech but various other actions that whilst doing no physical harm, are seen as offensive. A far from exhaustive list of related controversies include the ban on religious hate speech, Danish Cartoons and most recently the building Cordoba House near Ground Zero. So this raises two questions, first what makes words or actions offensive and secondly how should we react to offensive speech and actions. The definition of offensiveness is that it causes ‘anger, displeasure or injury’. For the sake of this discussion I’m not concerned with actions which cause physical injury, as we can generally accept that they are wrong, with a few exceptions. What interests me is the causing of anger or displeasure.
I also want to make a distinction between legal and moral, two things that are surprisingly often confused. For this article legal refers to the laws that governments make and moral refers to what individuals should or shouldn’t do. (Of course both these definitions are sketchy, but this blog post is not an academic essay.) What I want to argue is that individuals are morally obliged to try to avoid unnecessary offence, but that this should not be a legal matter. In other words it is wrong for me to call someone a prick but it should not illegal for me to do so. Why? There are three reasons I shall go through.
The first reason is the subjectivity of offence. Say I’ve go two friends, Dave and Mike. One evening, down the pub I greet them by saying ‘how are you two bastards doing?’ (Not the best banter ever I realize, but what can you do?) In this example Dave responds with a witty response, but Mike finds my greeting offensive. (We needn’t go into the reasons why.) The point here is which one, if either is in the right? I didn’t intend to offend either but the fact is I did. Now is this offensive, or is that just the case that Mike cannot take a joke. It seems to me that the answer is both; it offends Mike because he cannot take the joke and that makes it offensive. This illustrates one reason why it offence should not be a matter of legality. We frequently give offence without meaning to, and in ways that offend one person but not another. How therefore is the law, which by nature must deal with a large number of humans, supposed to regulate this?
Related to this is the second and to my mind most important reason. Offence is frequently an unintended consequence of criticism. Willingness to give and recive robust criticism is vital to many endeavours. Who hasn’t been told things that they are doing wrong, or could do better? Similarly if I disagree with your point of view, then the way for me to try and convince you, is to criticize that view whilst offering reasons to follow mine. Of course not all criticism is seen as offensive but it can be hard to predict what will be. There is also the fact that sometime the way to make a point is to do it in a very direct and robust value. If you try to soften a criticism you can obscure the point.
The third reason is that we are not talking about physical injury here. I would also include things like defamation whereby there is an obvious harm and a clear test as things we can legislate. But when it comes to statements, critcisms and actions, where the worst they do is insult and which aren’t lies then it seems that there are two things to be done. The first is to grow a thicker skin and the second is to try to avoid and challenge offence, but to do so individually and with words rather than anything else.