Feb 08

Bay’s Opposition to Limitation of Expression

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.


Amendment I

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.

My Position—

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.


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  1. As I stated in my response to your last article, Don, I have NO problem with the notion of free speech as we commonly define it; as an American, you can say anything. I agree that the hate speech issue is very tough to define as is bullying, and laws designed to prohibit it are flimsy.
    I still maintain that there is a fine line between expression without limit for the purpose of proving or making a point and that of expression that is designed to hurt or insult simply because the speaker does not respect the target of their ‘free speech’.
    Objection by the target to that speech must not be expressed by murdering the speaker, however.
    Political cartoons are a powerful way to express views on behalf of the publication in which they appear. They can be thought provoking and they do serve a genuine purpose in the political landscape. Your example of “Under God” is a good one. It makes a point without insulting believers necessarily. It attempts, I think, to point out a flaw in our so called separation of church and state which the constitution also provides for.
    I’ve taken the time to look at some past Hebdo cartoons…..pretty tasteless in some cases. Yes, they do attempt to prove a point. But tend to be pretty insulting, at best, when doing so. Do the cartoonist deserve to die…absolutely not.
    Charlie Hebdo has made a career out of satire directed towards organized religion. For the most part, I find organized religion funny all by itself, but Hebdo often goes to the dark side to lambaste it.
    I can understand Muslim outrage. I can not accept that murder should be the expression of that out rage, however……..an eye for an eye will make the world blind.

      • Don Bay on February 9, 2015 at 16:54

      As I have said in the piece and again to Jim, I am close to being an absolutist except for an exception. To me, it makes no difference that there is a fine line between making a point and merely hurting or insulting the target. In fact, the alleged frivolity is just the point. It needn’t be obvious. The murderers were insulted and hurt that their religion was mocked, but the point of the insult was to emphasize that the religion and Mohammed were fair targets just as Christianity, Jesus and Moses have been targeted before. Why should Islam be out-of-bounds simply because it was mocked in a hurtful way.

      A number of the Charlie Hebdo cartoons are alleged to be tasteless and insulting. Perhaps so. Isn’t the tastelessness or insult in the eye of the beholder? Like hate speech, one man’s insult is acceptable to another. Charlie Hebdo was founded on the premise that no person or group was above being lampooned or challenged.

      I agree that a line has been crossed when the attacker’s expression advocates taking action as for example, “Go get those Muslims, Niggers or Jews.” This call to action is different from insult or offensiveness that is free of any call to action. If I were a believing Muslim, person of color or an adherent of Judaism, such a call to action as I’ve just mentioned is akin to a declaration of war entitling the person or group to take civilized action involving the police or the courts. Notice, please, that I’ve used the word “civilized.” In my view, nobody is entitled to self-help, to strike first in order to avoid being struck. As you say, “An eye for an eye will make world blind.”

  2. I think I said most of this in response to your previous post, and Dave has made some of the same points. Essentially, my arguments are that if your free speech gets me killed then you had no right to say it. You can criticize me all you like, calling me anything you like, making fun of any part of me or my actions, etc. etc. But if your free speech says we have to kill that (nigger, faggot, etc., etc.) then it’s not ok. You recognize the “fire in the theatre” limitation and telling people to kill me is exactly the same.

    Again, with the bullying, you have the right to call a fellow student vicious names, but if you say we have to beat, burn, kill the fellow student it’s not ok.

    And again with Charlie Hebdo, they have the right to make fun of every stripe of religion or politics, and no one has the right to kill them for it, but they did risk backlash from extremists. So I have the right to say anything about anyone (above exceptions noted) but I might want to watch what I say about the gang leader on the next block because it might get me killed. Almost all I have read about CH is about their rights, with which I agree. Hardly anyone I have read has talked about what turns out to be their reckless behaviour.

      • Don Bay on February 9, 2015 at 13:37

      As written in the piece, I am close to being an absolutist when it comes to freedom of expression/speech. I certainly agree with you that killing—indeed, any violence—is totally unacceptable in responding to something that insults you, your religion or your way-of-life. As can’t be said often enough, the antidote to expression you don’t like is expression you do like. To this I have added my view that the response must be afforded a place and time equal to that objected to.

      You mention “risk.” There is no question that publishing something that another finds objectionable involves some degree of risk. While taking the risk involves knowledge of the risk and courage, few expect that irrationality will rear its ugly head. Charlie Hebdo experienced enough violent attacks in the course of its existence to be aware they were taking a risk. It’s doubtful that they expected the level of violence that was used. Nevertheless, they courageously continued to provoke.

      Religion—and most certainly Islam—takes offense at any attempt to lampoon or even politely critique the religion. The irrational Islamists want to insulate Islam from any and all forms of criticism in the hope/expectation that the religion’s critics will let them believe their nonsense without disturbance. Let us hope that the sane and even the cartoonists among us will continue their efforts to get radical Islam—indeed, Islam generally as well as all religions—to recognize that their religious belief system is irrational. The 21st Century beckons and it’s past time to join the parade toward rationality.

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