Currently the First Amendment right to freedom of speech, together with the democracy to which it is foundational, has increasingly become an endangered species. It is under attack by calls for censorship coming from both the Left and the Right.
From the Left it takes the forms of political correctness that has a stranglehold on many of our colleges and universities with its proscribing certain words and of the pernicious movements of so-called “wokeism” and cancel culture. An example of politically correct ideology run amok was Stanford University’s banning the use of the term “American,” though, after the predictable outrage, they backed down saying that they had intended merely to discourage the use of the word. An egregious example of cancel culture was the removal of a statue of Thomas Jefferson from New York City Hall’s Council Chamber because a council member felt “uncomfortable” with it.
From the Right it takes the forms of banning books from libraries, forbidding the teaching of certain topics like gender, critical race theory, and racism. A frightening statistic from a recent survey is that 62% of college students said it is “at least sometimes acceptable” to shout down a speaker, and one in five students said that using violence to stop a campus speech is “sometimes acceptable.”
What motivates all these calls for censorship is that the speech objected to may give offense to some. Thus, some Muslims at Hamline University took offense at an alleged image of Mohammed that a professor showed in his class which they thought blasphemous even though no one knows what Mohammed looked like. Had the image borne an inscription that did not identify it as Mohammed there would have been no problem. That professor was summarily fired.
Books have been removed from school and public libraries because only a single parent has deemed them offensive — a tyranny of one! There is no end to this madness. These are echoes of 1984. The 11th Commandment of these self-appointed zealots and scolds is, “Thou shalt not offend!” But why shouldn’t we? We have an unwritten right to offend by our speech if we wish, though we may be impolite or imprudent in doing so, but we have no God-given right not to be offended. Indeed, we are sometimes justified in giving offense. Thus, Socrates rightly gave offense to the Athenian leaders as Jesus did to the religious authorities.
Nevertheless, our exercise of free speech is in some cases justifiably restricted and sanctioned by law. These are cases when the speech actually or potentially harms others. These restrictions are justified by what the nineteenth-century English philosopher, John Stuart Mill, calls the “harm principle.” It was anticipated by Thomas Jefferson in his comment advocating the right of freedom of conscience: “The legitimate powers of government extend to such acts only as are injurious to others. It does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket nor breaks my leg.” It was later articulated more fully by Mill in his classic defense of free speech, On Liberty: “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
The limits that Mill places on our actions are determined by our duties to society among which are “not injuring the interests of one another; or rather certain interests which, either by express legal provision or by tacit understanding, ought to be considered as rights.”
Note that Mill distinguishes between generic interests and those that “ought to be considered as rights.” Individuals have an interest in material things like food and shelter necessary for their self-preservation, and no less an interest in immaterial things like peace of mind for their psychological well-being.
Furthermore, the public has an interest in ensuring its safety, and the state has an interest in maintaining its security — these interests may or may not conflict with those of the individual. These are generic interests. But individuals also have interests in their opportunity to speak freely, to assemble peacefully, and to exercise their conscience by worshiping, or not, as they choose. These interests are rights.
What Mill says about actions in general applies particularly to speech insofar as speech is a form of action. Speech ought not to injure either the generic interests of others or their rights. Speech injurious to the generic interests of others includes blackmail, perjury, libel, or false alarms like yelling “Fire” in a crowded cinema when there is no fire.
Examples of speech injurious to the rights of others include the press’s publishing information that would compromise the defendant’s right to a fair trial, or someone’s making public another’s medical history in violation of their right to privacy. Unquestionably, these kinds of speech do not qualify for protection under the First Amendment and are outlawed — no one has either a moral or legal right to such speech.
Should, then, offensive speech also be restricted? I think not. My reason is that offensive speech, unlike libel and incitements to riot, are not injurious to either others’ generic interests or their rights and so do not violate the harm principle. Offensive speech does not cause material harm to anyone: it neither injures nor kills them, deprives them of their wealth, nor damages their reputation. It merely offends one’s sensibilities; taking offense is a form of indignation. As the saying goes, sticks and stones may break my bones, but words will never
I cannot imagine that the Muslim students offended by the depiction of Mohammed or the council member discomforted by Jefferson’s stature were so psychologically devastated that they consigned themselves to psychiatric care.
People have been fired from their jobs for offensive speech such as making racist or homophobic remarks. But the only justifiable grounds for firing them is their inability or unwillingness to do their job.
However, such people should be censured if not censored. Mill distinguishes between legal and social penalties. Legal penalties, for example, would be those imposed by the courts on libelous speech. Social penalties, on the other hand, would be those imposed by the court of public opinion and would in some cases be appropriately imposed on offensive speech.
Mill again: “The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going to the length of violating any of their constitutional rights. The offender may then be justly punished by opinion, though not by law.”
Thus, the appropriate penalties for personnel making offensive remarks in the workplace would be their being shunned or remonstrated against by their colleagues.
In conclusion: We ought to enjoy to the maximum the right of freedom of speech, foundational to democracy, unless it materially harms others.