In Brief—The author explains his near total objection to limitations on “offensive” speech and other forms of expression. This should not be construed to apply to his views regarding other freedoms guaranteed under the Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Freedom Means Freedom—
As promised last week in my solicitation of reader opinions on the Charlie Hebdo killings, here’s my view of a limitation on expressions or speech that may be offensive to some people.
As I read the First Amendment to the Constitution it means that there must be no restrictions established by government to the enumerated subjects. The Supreme Court has held that because of the 14th Amendment this applies to state and local laws as well. Individuals are included.
Despite the wording of the law, we all know—or should know—that this does not give a person the right to falsely shout ”Fire!” in a crowded theater. Clearly, there are exceptions to this amendment, but rather than enumerate and discuss the allowed exceptions, a number of which violate the Constitution, this piece is aimed at the recent Charlie Hebdo massacre that occurred in Paris, France, in early January.
Assuming that some readers have been out-of-touch recently, radical Muslims took offense over cartoons depicting Mohammed in the French weekly newspaper Charlie Hebdo and murdered a number of people including the cartoonists before being killed by police. This raised the question of the right to freedom of expression versus whether something might give offense. I posted a blog piece last week soliciting views on the issues raised. You will find it in the blog following this piece.
I’ve never read Charlie Hebdo or seen the Mohammed cartoons. On reliable authority, however, I have read that Charlie Hebdo regularly printed cartoons depicting not just Mohammed but assorted religious and political figures and issues. Numerous people and groups have been offended by the paper’s articles and cartoons that were often intended to arouse strong feelings. In this case, rather than express anger or disagreement, the Islamic extremists used murder to express hurt religious feelings.
Several Islamic scholars have pointed out that the Quran does not have any prohibition against depictions of Mohammed. It’s only ignorant and radically politicized Islamic adherents that use this device as a means to prevent meaningful discussion and critiques of Islam.
Notwithstanding some unprecedented holdings of the Supreme Court and incursions by state and local governments as well as blinkered individuals, my view is that taking offense is not enough to warrant limiting individual freedom of expression. I believe that the antidote to speech or expression you don’t like is speech or expression you do like. I would nevertheless require that balancing take into account time and forum.
Real-Life Examples of Free Expression—
Here are three real-life examples explaining my opposition to the ”taking offense” rationale for limiting free expression.
Some years back there was a cartoon published showing God atop Uncle Sam engaging in a sexual act. There was no caption and no titillating images of sexual organs were shown, just God atop Uncle Sam engaging in what the average viewer would interpret as a sexual act.
Was it intended to be offensive? Yes. Did it convey the idea that America was being violated? Yes. While there’s no doubt that many would consider this image distasteful, even offensive, it clearly conveyed the idea that some citizens thought including ”Under God” on American currency was objectionable. I agree that ”Under God” was objectionable.
Over the years in America and around the world, the American flag has been burned or treated in a variety of disrespectful ways. This has been judicially approved as symbolic speech, yet many are offended by it. I agree that even though it may be considered offensive to some, it is protected expression.
Pennsylvania has enacted a law, The Revictimizion Relief Act, making it a crime to offend the families or survivors of a violent crime by allowing the criminal defendant to publicize the crime. In part, the law says the victim must be in, “a temporary or permanent state of mental anguish.”
As background, prisoner Mumia Abu-Jamal, a former Black Panther, was convicted for allegedly killing a police officer. He spoke via radio at a university graduation ceremony about America’s flawed justice system. The officer’s widow contends that Jamal has ”revictimized” her, that because of his speaking she is being drawn into the spotlight again. This law is the unconstitutional product of ignorant or fearful lawmakers and should be dumped. That the widow is offended by Jamal’s speech is unfortunate, but its impact is unquestionably excessive.
What about ”hate speech?” So-called ”hate speech” is so vague as to be virtually meaningless. What one person considers to be hate speech differs from what another person believes is hate speech. What a Palestinian considers to be hate speech is acceptable to many Israelis. To me, ”hate speech” is not only vague, it is unconstitutional.
What about bullying? Again, it is vague. Do we judge it as being unlawful if the victim commits suicide? What if the victim is alive but claims to have been harmed psychologically? While I think it is wrong to bully another, there are other simpler ways to discourage bullying. Don’t use a shotgun to kill a fly.
Stick With Freedom of Expression—
There are more instances of offensive expression than the examples provided, but the important thing to remember is that we must not abandon our support of freedom of expression simply because some of those expressions may offend somebody. Once a freedom is given away, history has shown that rivers of blood may not get it back.