Limiting Free Speech (50): Harassment of Funeral Mourners

The Phelps family and their Westboro Baptist Church – notorious nutcases and media whores – won an important Supreme Court free speech case. In Snyder v Phelps, the Court decided that the First Amendment protects public protestors insulting dead soldiers during their funeral (“thank God for dead soldiers” was one of the insults directed at the Snyder family).

And indeed, free speech rights do and should include the right to be offensive, obnoxious, insensitive, indecent, disturbing and plain stupid, even if being so causes sincere and predictable discomfort for some. Moreover, the Phelps’ were in a public space and were “discussing” a topic of public interest (the war in Iraq and the permissibility of homosexuality). Those facts make the Court’s decision look inherently sound.

However, things look entirely different when we take some other facts into account. There’s for example the mourners’ right to privacy. Westboro’s picketing was a clear violations of this right. There’s nothing as private as mourning at a funeral, and the mourners are definitely captive: they can’t just go an mourn elsewhere in order to avoid the protest. Westboro on the other hand can easily stage their protests elsewhere: they can for example respect a decent distance. Their speech is not directed at the mourners anyway, but rather at the general public, so speaking outside a buffer zone around the cemetery would not, at first sight, limit their speech. An effort to balance both rights – speech and privacy – should therefore, at least in this case, come down on the side of privacy because the cost to privacy of permitting speech is much larger than the cost to speech of respecting privacy. (And rights have to be balanced; speech is not the most important right but rather one among many equally important rights).

Still, Westboro may disagree. It’s likely that they see their speech as inherently connected to their lack of decency: it’s precisely this lack that creates the controversy and that gives their speech the impact that it wouldn’t have outside of the buffer zone. The problem with this argument is that it confuses the right to freedom of speech with a right to maximum impact speech. And the latter right does not and should not exist. We have a strong right to free speech but no right to maximize the impact of our speech at the expense of other people’s rights.

Limitations of free speech in cases such as these can be argued, not just on the basis of the right to privacy, but also on the basis of the right to health. It’s not outrageous to assume that distress of the type caused by Westboro can lead to health problems such as anguish, depression etc. Again we have a conflict of rights, and again it’s a case in which limitations of free speech would impose a smaller cost – given the alternative forms of speech available – than the health cost imposed by the lack of such limitations.

All of this proves that we are dealing here with a case that’s about more than mere offense. But perhaps it’s also about more than privacy and health. Free speech does not include the right to use other people as mere instruments of your speech. And instrumentalization of this kind is clearly what Westboro is all about. They don’t give a damn about the mourners and use them as a stage for venting against homosexuality (they see dead soldiers as God’s punishment for allowing homosexuality in the U.S.):

the outrageous disturbance of a military funeral is newsworthy precisely because it is such an abhorrent and extreme act.  In essence, the speakers are using the mourners and their vulnerable and sympathetic position as a stage prop to get their message out to a different audience. (source)

And although there is no right to be treated as an end rather than a means, this does seem to be a solid moral principle.

Go here to read about the similar case of residential picketing. More posts in this series are here.

Limiting Free Speech (24): Political Correctness

Political correctness (or PC) is a form of speech that is characterized by the willingness to avoid offense to certain groups in society, often groups which have a history of suffering and rights violations.

It is a form of speech that excludes certain concepts and phrases that are thought to be expressions of hatred, discrimination and rights violations. Such expressions, it is believed, serve to keep these violations alive and well, and protecting human rights therefore requires the exclusion of these expressions. Examples of these expressions and concepts or phrases are “nigger”, “women should play the main role in the household”, “black people are genetically less intelligent than white people”, “affirmative action is discrimination of whites”, the systematic use of “he” to describe a person, or of “man” to describe a member of the human race etc.

Hence, political correctness is a limitation of free speech that is believed to be necessary in order to protect other rights. Politically incorrect speech is a strategy in the continuation or reinstatement of rights violations, for example discrimination of women, racism, or unequal opportunities. Language determines the thoughts, mentalities and actions of both the speakers and listeners. For example, convictions regarding negative stereotypes are facilitated by the availability and widespread use of pejorative and stereotypical labels. A user of these labels will be confirmed in his or her believes, and a target of these labels will suffer a loss of self-esteem and will, as a result, find it difficult to escape from his or her unequal position in society. Hence, using politically incorrect stereotypes contributes to the continuation of inequality. On the other hand, “outlawing” such stereotypes forces people to think about how they describe other people and forces them to focus on individual characteristics rather than stereotypes.

Proponents of PC believe that language should be used for good purposes rather than bad ones. They don’t want language to be a tool to oppress. They seek cultural change through linguistic change, but this has an impact on the freedom of speech: certain types of expressions, phrases or concepts are off limits according to the proponents of politically correct speech, and other types are mandatory. Speech should be as inclusive and neutral (gender neutral, race neutral etc.) as possible. Hence constructions such as “s/he”, “African-American”, “holiday season” instead of Christmas etc.

PC can be criticized in several ways. I just pick two types of criticism that seem most convincing to me. Politically correct speech is a kind of orthodoxy or an example of dogmatic thinking or group thinking, which is why the concept of PC is mostly pejorative. Politically incorrect speech on the other hand can be seen as rebellious, original and individualistic. It can be very useful in identifying hidden assumptions, prejudices etc. Of course, political incorrectness can become a prejudice in itself, obscuring the need for real debate on some human rights issues.

Whether or not PC is justified depends on the effects of language on rights violations. There is certainly some effect. Especially in the early, formative years, people can be influenced by speech, and can grow up to become persons with mentalities that are inimical to human rights. And they will certainly act on these mentalities. But I believe that the proponents of PC overstate the importance of the causal link. It’s not true that sexist or racist language always and necessarily produces sexism and racism. These rights violations have a myriad of causes. Hence it is dangerous to identify certain forms of speech as the main causes, and consequently “outlaw” them, perhaps not legally but morally. This can result in cultural communism, a totalitarian and intolerant “regime” censoring and punishing dissent and “heresy”. It is not unheard of that people lose their jobs and/or reputation because of a sin against PC.

By the way, one particularly funny instance of political correctness are the annual arguments about Christmas. Christian traditionalists and PC people who think that a Christian holiday may be an insult to other religions, outdo each other in silly talk.

Limiting Free Speech (20): Flag Burning and Flag Desecration

Flag burning (or other types of desecration of national flags) is a form of speech. It may not be a very refined or profound expression of opinions or ideas, but it is an expression nevertheless. Flag burning expresses disgust and hatred for a certain country or a country’s government and policies. It’s typically a very emotional form of speech, devoid of rational argument and reduced to simplistic slogans, and most often used in a setting of mass protest.

Given that it is a form of speech, it should, a priori, enjoy the protection of the right to free speech. However, in certain exceptional circumstances there’s a rationale for prohibiting it. It is a form of hate speech, and the rules governing limitations of hate speech apply here as well. In a nutshell: hate speech can be prohibited when it incites violence.

Now, it’s not impossible to imagine cases where flag burning can incite violence (burning the flag of Israel in front of a surrounded Jewish enclave when a pogrom is imminent, for example), but I guess that most cases of flag burning are much less harmful. So a general law forbidding flag burning doesn’t seem justifiable. There have been several attempts in the U.S. Congress to vote for an Amendment to the U.S. Constitution to allow a ban on flag burning:

On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states. (source)

Much of this is of course political posturing of politicians trying to be the most patriotic. Given the rarity of flag burning in the U.S., it’s also a typical example of a solution in search of a problem.

Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. Richard Savage (source)

The fact that patriotic people are offended by flag burning isn’t a sufficient reason to ban it. (I’ve argued here against a right not to be offended).

Limiting Free Speech (16): Fighting Words

Fighting words are written or spoken words expressed to incite violence. This is related to the topic of hate speech, but it isn’t quite the same thing. Hate speech isn’t necessarily intended to incite violence (just simple hate in some cases).

In Chaplinsky v. New Hampshire (in 1942), the U.S. Supreme Court decided that “fighting words”, words that tend to incite an immediate breach of the peace, are among the

well-defined and narrowly limited classes of speech [which] the prevention and punishment of have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Speech that merely causes anger, offense, insult or outrage does not amount to fighting words. Fighting words must present an actual threat of immediate violence or must “reasonably incite the average person to retaliate.”

It’s not true that certain words inevitably provoke violent reactions by individuals. Rather, one should take into account the context in which the words were uttered, not merely the content of the words themselves.

Given the rules for limiting free speech described in this post, the case of fighting words is rather simple. Inciting violence leads to violations of individual rights to security and bodily integrity, and in many cases these rights should take precedence over the right to free speech. It seems difficult to accept that hurting someone is a lesser evil than limiting someone’s right to speak and threaten.

Limiting Free Speech (6): A Right Not to be Offended or Insulted?

In the previous post in this series I concluded that insulting or offending speech should not be forbidden, and is not a legitimate reason to limit the right to freedom of speech. Such limits are possible in general but should be exceptional given the importance of the freedom of speech. In the current post, I’ll flesh out the argument against limits on offending speech.

Offending speech is a slightly broader category than derogatory speech. The latter can be said to imply the intention to offend, ridicule or belittle, but offending speech in general does not imply this intention. People can be – and regularly are – offended by speech (or actions) that is not meant to offend.

Let’s assume, for the sake of argument, that there is such a thing as a right not to be offended. Such a right would create a duty not to offend. This duty goes much further than the duties normally assumed to be generated by tolerance. Tolerance forces people to abstain from

  • interfering with other people’s beliefs or practices
  • suppressing other people’s beliefs or practices
  • persecuting people with other beliefs or practices.

The focus is on the duties to abstain from actively interfering, suppressing or persecuting (or coercing in perhaps other ways). Tolerance forces us to leave people alone, even when – or rather especially when – we dislike, disapprove of or feel insulted by these people, because only then will we be tempted to intervene. We will not be tempted to intervene with people who leave us indifferent, in which case tolerance and the duties that arise from it are irrelevant.

A presumed right not to be offended can therefore be thought of as an exception to the duties of tolerance. When we accept such a right, we in fact claim that this right trumps some of our duties of tolerance in certain cases, namely in the cases when other people offend us. We should not tolerate offense, and the right to free speech of the offenders (of those who cause offense) should be limited by our right not to be offended. I say “some of our duties” because I don’t think that many people would claim that a right not to be offended should make it possible to go beyond limiting free speech, and should for example allow us to persecute offenders (some Muslims went this far in the case of the Muhammad cartoons).

If we assume that there is a right not to be offended and that this right has the consequences for tolerance which I have described, then we’ll quickly run into some insurmountable difficulties – and these difficulties will be a reason to reject the right not to be offended.

What are these difficulties? Let’s make a difference between active and passive offense. We can offend others by merely having certain beliefs or ways of lives. This passive offense does not result from an intention to offend. Active offense takes place when

  1. we knowingly and intentionally seek to offend others, by for example making certain derogatory claims about their beliefs and ways of lives, AND
  2. these others take offense.

If we focus on passive offense, then we must accept that it cannot be in itself offensive or disrespectful to have certain beliefs or ways of lives. Offense should entail the active intention to insult and cause offense. If we do not accept this, then we have to conclude that a right not to be offended triggers the duty to change beliefs or ways of life. And that is obviously outrageous.

Now, regarding active offense, the issues are, at first sight, much clearer. However, the problem is that there is no clear distinction between active and passive offense. It can be part of my beliefs and way of life that I should subject all views to rigorous criticism. And such criticism can cause offense. I know this, but still insist that I should criticize. Hence, I create active offense. A right not to be offended would then imply the duty to change my views and way of life, again outrageously.

Or it can be part of my beliefs that everybody should hear the word of God (my God). This as well can be insulting to adherents of another religion, who consider me to be a sinner, a false messenger leading humanity astray. A right not to be offended would again force me to deny myself.

Another problem with a possible right not to be offended is the fact that everything can be considered offensive by some people. It is impossible to predict what will or will not be considered offensive by someone, somewhere. A duty not to offend would ultimately lead to a duty to remain silent.

So, if offense is to be prohibited, and freedom of speech limited, then the only options would seem to be:

  • remain silent
  • force people to change their beliefs and ways of life
  • force people to be hypocrites.

Any one of these options is a nightmare. And the second one is self-contradictory because the rationale behind the proposal for a right not to be offended is precisely the necessity of respect for people’s beliefs and ways of life.

So it seems that offense and disrespect are a necessary price to pay for freedom of speech and the right to live your life according to you own choices and beliefs. However, this doesn’t mean that offense, ridicule, belittlement and disrespect are virtues. We shouldn’t make them illegal, but they shouldn’t be cherished either. They make it more difficult to have a rational debate on important subjects. They poison the debate and make it difficult to argue and persuade. So there are good reasons to avoid them, even if there are no good reasons to prohibit them.