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.
A simple and straightforward statement. No wonder it incites so much hatred of its contents!
First things first: how did such a wonder come into existence? Well, the original Constitution didn't have any provisions guarding civil liberties, and the people of America had just gone through a revolution and war against a ruler, a governor and an army, all of whom dispensed and withheld civil liberties at whim.
Also, most of the States (Rhode Island being the exception) had laws that favored one church over another. Atheism was defined as a crime, and Jews were sort of tolerated. (Heck, even Maryland outlawed Catholics from government office!) I think it was Virginia that had a tax that went straight into the church coffers; Thomas Jefferson's declaration of religious liberty in Virginia put paid to that! One or two states had laws that required church attendance; tough tiddlywinks if you believed the Sabbath to be Saturday. Basically, the newer denominations were either outlawed, barred from meeting or faced an impossible job of raising money to meet. So the newer Christian sects began to campaign for fairness; ironically, a few of them are the same ones who now call for less religious tolerance!
Free speech was put in there because everyone remembered the draconian ways the British stopped it. Freedom of the press because the British were prone to shutting down the presses if they printed something nasty about the governor or the monarch. The English Bill of Rights (1689) wasn't thought to apply outside of the UK...
Fast forward to contemporary history, and what you have is a situation where people on the left and the right tell us that certain speech and expressions must be banned. Usually they want to ban whatever to protect, erm, free speech. (Some things never change, by the way.) There always seems to be some idea of protecting something, a bit of culture, someone's sensibilities, a standard of decency, a whatever. You can't wear your pants like that because it's indecent; men can't have long hair, or wear earrings, because it makes them effeminate (here, we're starting to define gender roles), women can't wear pants because it's not feminine, and so on. You can't say that because this group, or that group, will be offended. You can't protest this because to do so is harken back to the days of the KKK. Believers must believe a certain way, any other way is apostasy. Unbelievers are to be penalized, because this interpretation is the one true interpretation. And so on. People want to apply plenty of restrictions.
A corollary that always accompanies restrictions is that some authority must be respected. Not, you note, some individual sensitivity, but some authority. The usual one is the authority of the church, or the father in a "Christian household". We see this in the age-old demand that we respect our elders. Asking "Why?" is deemed, rather simply, not to be a question! An army runs on discipline and respect for authority; a democracy can never do so. A democratic institution might warrant respect (the British Prime Minister, the American President, an MP, a Member of Congress, etc), but the individuals who hold those offices have to earn the respect of their constituents. It is not automatically granted, even in landslide elections. They may gain authority, but that is different to respect. And they do not have the authority to demand you like them!
In a democracy there is always the temptation to curtail what someone can say. In a dictatorship, this is never a problem - you're only allowed to say certain things, anyway. Uttering the wrong thing can be detrimental to your health and not favorable to your continued existence. If you offend the ruling junta, or challenge its authority in any way, you will find yourself in a perilous position. What is the similarity between curtailing speech because it offends and subjugates someone, and the dictatorship?
Social pressures can act quite effectively to prevent certain speech. Two South Carolina Republicans just discovered that mean-spirited syllogisms are offensive; they ended up apologizing for their inane and actually anti-Semitic words. Jan Moir is finding out that public condemnation is quite powerful - as it should be. But officially barring her sentiments would be the wrong thing to do.
Ms Moir's words are despicable; they hold no inherent value whatsoever. But is that enough to preclude them being printed? Another writer, in the US, wrote a story, long ago, about a boy who seriously questions the morality of not returning a slave to his "rightful" owner. Huckleberry Finn never seems to the list of books parents want removed from libraries. No, I am not comparing the literary value of Mark Twain to Jan Moir (she doesn't even warrant being the rag with which other, more worthy writers, can use to shine Mr Twain's shoes), what I am comparing is their ability to offend. Mr Twain offends because people fail to read his story (they seem to skim it and find it offensive; these individuals never seem to think about his story. Nor its timelessness.) Ms Moir offends because her words simply are hateful. Ms Moir's words will be remembered by the staff of the Press Complaints Commission and the Daily Mail solely for the quantity of outrage expressed against them. I repeat: there is no intrinsic value to them.
But we can't ban her from writing whatever she wants.
An example of hate speech was on Dru's blog, it was a comment to another Daily Mail news article:
One of her flock, no doubt. Perverts are like irrepairably broken machines. Can't be fixed. Should be disposed of. Rid the world of their defective genome.
- Ray, Liverpool, 17/10/2009 18:19
Ray of Liverpool was responding to a story about the death of a woman. Apparently the story revealed something about the woman's history: she was a transwoman. Dru wondered if it was legal to publish such information (turns out, the relevant law says nothing about such things, meaning they are legal).
There's two issues at stake, both related to free expression. One is the woman's history - if we are denied to report facts, because they might be inconvenient to an individual, how can we also claim that Trafigura's quashing of a press investigation was immoral, or against the public interest? Society should not be in a position of dictating what can and cannot be published in a newspaper. Which is why the 1st Amendment contains the bit about freedom of the press.
Is the woman's history relevant to the story of her murder? Perhaps, perhaps not. Is its telling important within the framework of story telling? It's actually essential! Do people have a right to know someone's history? The public bits are open for discussion, whether the public has a right to know depends entirely on context. As even the most draconian dictatorship has found out: you simply can't stop gossip, and it's impossible to try. (If her history is unimportant, is the private history of a gay-bashing, virulently homophobic, Congressman to be concealed, as well? How about the raging homophobic pastor's personal history? I'm sure the names of the two hypocrites can't be too far from your mind.)
Now, Britain has a peculiar history with the press. The tabloids have basically abused the idea of freedom of the press; their wild reporting resulted in a desultory "Press Complaints Commission". Clearly, there is a conflict between a free press and this body, but it's not one I'm going to address, here. That is was required indicates something amiss!
The other bit of Ray of Liverpool's words is that it turns out they are hate-speech in the UK. And, as such, can be investigated by the police. (Who, it seems, are doing so.) In the US, as reprehensible as such speech is, the police do not have any jurisdiction. His right to offend is protected by the 1st Amendment. He can be reviled for his words (and should be), but he can't be prosecuted for them. He can't be investigated for them. Ironically, if he was investigated for his hate-filled words, he would likely find the local ACLU chapter providing legal assistance to him! No matter how hateful the words - the right to say them is to be preserved.
That's why the ACLU defended the American Nazi's who wanted to march through Skokie, Illinois. A Jewish lawyer took the case, and the march went ahead. Why Skokie? It turns out quite a few Holocaust camp survivors lived there. This case is often forgotten by those who decry the ACLU. The idea is that only by exposing the putrid ideas to the sunlight of public scrutiny will they be truly defeated. That's why so many closet racists and anti-Semites stay in the closet - they truly don't want to be identified with their own odious beliefs.
In any free society you will find someone who is willing to offend others. This person might be offensive, inane or even ridiculous, but society - through its government - has no right to silence that individual. For a few reasons: because the 1st Amendment gives him the right to be offensive if, because imposing thoughts on another is immoral, and if you silence one line of thought, is the next one so far away as to be untouchable?
That's the more important one, the foundation of the First Amendment. If I hold views you find reprehensible, you might try to pass a law preventing me from stating them. Because bills of attainder are also illegal (and immoral), the resulting law has to be fairly broad. Let's say you author a bill banning speech that may offend or cause mental harm to someone else. You add in a further clause: you don't want the targeted group to be subjugated, so you go on to say "no one can subjugate another". You get the law passed, and I am silenced. I can now use your own law against you. Because your law offends me, causes me mental anguish as I try to resolve my thoughts and bring them into line with yours. You have imposed your views upon me; I am banned from holding mine. Your views assume a grand status, and your thoughts now exceed mine; equality has been discarded in favor of preventing offense to some group.
What if the offending group was a group of slave-owning plantation owners?
They wanted to keep slavery (not for moral reasons, but purely for economic ones) - and some states did pass laws that said you couldn't question slavery. Never mind if slavery is immoral or not - which is more immoral: the idea that you can prevent me from objecting to slavery, or the fact that some find slavery economically beneficial?
How do you, if you deem the offensive to be offensive, address the concerns of someone who sees an entire neighborhood changing, immigrants moving in and changing the nature of the area he or she grew up in? Have spent their entire lives in? Are they racist because they don't like the change? Should they be silenced, lest they offend their new neighbors? (As long as no one stops the new neighbors moving in, I see no issue in the person voicing their concerns, dislikes and so on.)
(Important point: your right to swing your fist in a bout of self expression ends at the tip of my nose. Rhetorically speaking; in my case, try that with me and it's likely to end a little sooner.)
Some men, particularly fundamentalists, deem it offensive to even consider the idea that women are equal to themselves. Some nations have enshrined in law their insistence that it is offensive to criticize the national religion. Are they to be respected, and not judged as immoral, simply because saying that such laws and attitudes are offensive is offensive?
It is not an unimportant, or irrelevant, argument. It is the very essence of free speech: can you utter the offensive? If you say "no", I'll let you decide how you're going to define what is offensive, what to do about satire and irony, and also decide how you're going to handle such wonders as Huckleberry Finn. I'll also let you figure out how you're going to persuade everyone else that what you consider offensive actually is offensive.
So, how do you ban Huckleberry Finn?
Carolyn Ann