Offensive Speech, Religion, and the Limits of the Law
NICHOLAS HATZIS
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Acknowledgements
I received invaluable advice from colleagues and friends who discussed with me the issues explored here or commented on draft chapters. I am indebted to Eric Barendt, Lior Barshack, Vincent Blasi, Sionaidh Douglas-Scott, Leslie Green, Kent Greenawalt, George Letsas, Ian Loveland, Virginia Mantouvalou, Yoram Shachar, the late Stavros Tsakyrakis, and the anonymous reviewers for Oxford University Press. For discussions on religion in constitutional law, and for unfailing support over many years, I am grateful to Nicos Alivizatos. My greatest debt in writing this book is to Gerald Neuman, who encouraged my initial interest in the relation between speech and religion and gave detailed comments on the manuscript.
I presented some of the ideas developed in the book in a series of lectures on free speech at the Radzyner Law School, The Interdisciplinary Center Herzliya in Israel. I thank Dean Amnon Lehavi, Lior Barshack, and the members of the faculty for the invitation and hospitality, and my students at the IDC for their lively interest and their questions and contributions in the lectures.
At the Press, Alex Flach and Jamie Berezin were generous with their help during the time it took to complete the work, and Brianne Bellio was instrumental in turning the manuscript into a book.
Chapter 6 incorporates some material first published in my article ‘Lying, Speech and Impersonal Harm’ (2019) 38 Law and Philosophy 517, and I thank the publisher and editors for permission to republish here.
R v Keegstra [1990] 3 SCR 697
Table of Cases
Suszkin v Israel [1998] IsrSC 52(3) 289
CANADA
ISRAEL
UNITED KINGDOM
Barnett v Kensington and Chelsea Hospital Management Committee (1969) 1 QB 428
Bowman v Secular Society [1917] AC 406
Brutus v Cozens [1973] AC 854
Casamitjana Costa v The League Against Cruel Sports, case number 3331129/2018, consent judgment (2 March 2020)
Grainger plc v Nicholson [2010] ICR 360
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) [1961] AC 388
R v Chief Metropolitan Stipendiary Magistrate ex p Choudhury [1991] 1 QB
R v Lemon [1979] AC 617
R v Ramsay and Foote (1883) 15 Cox CC 231
Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249
Robinson v Kilvert (1889) 41 Ch D 88
St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642
Thomas and Others v National Union of Mineworkers [1986] Ch 20
Taylor’s Case (1676) 1 Vent 293
UNITED STATES
Abrams v United States 250 US 616 (1919)
Baggett v Bullitt 377 US 360 (1964) .
111n.98
.115–16
92–93, 161n.20
125
Brandenburg v Ohio 395 US 444 (1969) 163–64, 165–66
Burstyn v Wilson 343 US 495 (1952) 136, 138
Cantwell v Connecticut 310 US 296 (1940) 102–3, 106–7, 137, 138
Chaplinsky v New Hampshire 315 US 568 (1942) .
Clark v Community for Creative Non-Violence 468 US 288 (1984) .
Cohen v California 403 US 15 (1971) .
69n.44, 70
. 14n.26, 85n.28
70, 73–74, 76–77, 101, 106–7, 111, 138
Connally v General Construction Co 269 US 385(1926) 124n.49
Cox v Louisiana 379 US 536 (1965) 149
Debs v United States 249 US 211 (1919) 81–82, 159, 160
Dennis v United States 341 US 494 (1951).
Edwards v South Carolina 372 US 229 (1963) .
161, 164
149
Employment Division Department of Human Resources of Oregon v Smith 494 US 872 (1990) 128
Epperson v Arkansas 393 US 97(1968)
Feiner v New York 340 US 315 (1951)
Frisby v Schultz 487 US 474 (1988)
Frohwerk v United States 249 US 204 (1919) .
Gitlow v New York 268 US 652 (1925) .
Grayned v City of Rockford 408 US 104 (1972)
Gregory v Chicago 394 US 111 (1969)
Hill v Colorado 530 US 703 (2000)
Holder v Humanitarian Law Project 561 US 1 (2010)
Hustler Magazine v Falwell 485 US 46 (1988)
Jordan v De George 341 US 223 (1951) .
Kolender v Lawson 461 US 352 (1983) .
Masses Publishing Co v Patten 244 F 535 (SDNY), rev’d, 246 F 24 (2nd Cir 1917)
New York Times v Sullivan 376 US 254 (1964)
Noto v United States 367 US 290 (1961) .
Papachristou v City of Jacksonville 405 US 156 (1972) .
People v Ruggles 8 Johns 290 (NY 1811) .
163, 164–65
129n.72
.117–18
Robertson v Baldwin 165 US 275(1897) 119n.31
Scales v United States 367 US 203 (1961) 163
Schacht v United States 398 US 58 (1970) 138–39
Schenck v United States 249 US 47 (1919) .
Sherbert v Verner 374 US 398 (1963) .
Smith v Goguen 415 US 566 (1974)
81–82, 159, 164
69n.41, 124–25, 129
Snyder v Phelps 562 US 443 (2011) 111n.100
Spence v Washington 418 US 405 (1974) 16n.33
State of Maryland v West 9 Md App 270 (1970) 119
Street v New York 394 US 576 (1969) .
Terminiello v City of Chicago 337 US 1 (1949)
Texas v Johnson 491 US 397 (1989) .
69
.147–48
68–69,
Thomas v Review Board of the Indiana Employment Security Division 450 US 707 (1981) 140n.107
United States v Alvarez 132 S Ct 2537 (2012)
United States v Eichman 496 US 310 (1990)
United States v National Dairy Products Corp 372 US 29 (1963) .
Virginia v Black 538 US 343 (2003) .
158, 165
125n.54
Walker v Texas Division, Sons of Confederate Veterans 576 US 200 (2015) 87n.34
West Virginia State Board of Education v Barnette 319 US 624 (1943) 69n.41
Whitney v California 274 US 357 (1927)
Yates v United States 354 US 298 (1957) .
EUROPEAN COURT OF HUMAN RIGHTS
Belkacem v Belgium App no 34367/14 (20 July 2017)
Bergens Tidende and Others v Norway (2000) 31 EHRR 430
Bladet Tromso and Stensaas v Norway (1999) 29 EHRR 125 .
163n.39
.162–63
83n.21
83n.21
Castells v Spain (1992) 14 EHRR 445 83n.20
EB v France (2008) 47 EHRR 21 116n.13
ES v Austria (2019) 69 EHRR 4 60, 64, 73–74, 89, 151, 156, 171
Garaudy v France App no 65831/01 (24 June 2003) .
Giniewski v France (2007) 45 EHRR 23 . . . . . . . . . .
Glimmerveen and Hagenbeek v Netherlands (1982) 4 EHRR 260 .
95n.59
. 88, 89, 109
95n.59
Gunduz v Turkey (2005) 41 EHRR 5 24–25n.54
Handyside v United Kingdom (1976) 1 EHRR 737 107n.91
Hertel v Switzerland (1998) 28 EHRR 534 83n.21
IA v Turkey (2007) 45 EHRR 30 . . .
Incal v Turkey (1998) 29 EHRR 449 .
Jersild v Denmark (1995) 19 EHRR 1 .
. . . . 60, 63, 64, 73–74, 84, 89, 156
83n.20
107n.92
Jerusalem v Austria (2003) 37 EHRR 25 83n.20
Karácsony v Hungary (2016) 42 BHRC 1 83n.20
Kokkinakis v Greece (1994) 17 EHRR 397 57, 127–28
Kuliś and Różycki v Poland App no 27209/03 (6 October 2009)
Lehideux and Isorni v France (2000) 30 EHRR 665
Lingens v Austria (1986) 8 EHRR 407
M’Bala v France App no 25293/13 (20 October 2015)
83n.21
94, 97
Malone v United Kingdom (1984) 7 EHRR 14 126
Members of the Gdani Congregation of Jehovah’s Witnesses v Georgia (2008) 46 EHRR 30
Müller v Switzerland (1991) 13 EHRR 212
Murphy v Ireland (2004) 38 EHRR 13
113n.104
75n.69
.103–4, 108
Norwood v United Kingdom (2005) 40 EHRR SE11 95n.59
Otto-Preminger-Institut v Austria (1995) 19 EHRR 34 22, 56–57, 63, 64, 73–74, 80, 83–84, 89, 104–5, 108, 156, 166–67, 170
Pavel Ivanov v Russia App no 35222/04 (20 February 2007)
Redfearn v United Kingdom (2013) 57 EHRR 2
Selisto v Finland (2004) 42 EHRR 144
95n.59
96, 97
. 83n.21
Silver v United Kingdom (1983) 5 EHRR 347 126n.59
Sunday Times v United Kingdom (1979) 2 EHRR 245 126
Tagiyev and Huseynov v Azerbaijan App no 13274/08 (5 December 2019) 60–61
Tierfabriken v Switzerland (2001) 34 EHRR 159
Thorgeir Thorgeirson v Iceland (1992) 14 EHRR 843
Wingrove v United Kingdom (1996) 24 EHRR 1
83n.21, 105
83n.21
. 59, 64, 73–74, 84, 89, 108, 115–16, 156
EUROPEAN COMMISSION ON HUMAN RIGHTS
Choudhury v United Kingdom App no 17439/90 (5 March 1991) 116n.14
Table of Legislation
CANADA
Criminal Code s 319(2) 27
GERMANY
Criminal Code s 130 26
Criminal Code section 166 141–42
IRELAND
Blasphemy (Abolition of Offences and Related Matters) Act 2019 122–23
UNITED STATES
Espionage Act 1917 81–82, 159 Smith Act 1940
Stolen Valor Act 2005
UNITED KINGDOM
Criminal Justice and Immigration Act 2008, s 79(1)
Public Order Act 1936 s 5
Public Order Act 1986
Racial and Religious Hatred Act 2006 29–30 s1 28–29
List of Abbreviations
ACHR American Convention on Human Rights
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
Introduction
I learn belatedly, thanks to the seaside indolence of August on a Dalmatian island that piles up stacks of outdated newspapers and weeklies, that in Denmark they have purged—I imagine from the schools—a tale by Hans Christian Andersen with a Christian ending, or Christian elements in any case, so as not to offend the faithful of other churches. In its respectful stupidity, this is a decisive step in the universal history of censorship. In this case, it is a well-intentioned censorship, moved by a concern not to upset cultural or religious minorities. But censorship, after all, is always well-intentioned: it seeks to protect morality, one’s country, the family, institutions, order, society, progress, the people, the children, health.
This is the beginning of a short essay by Claudio Magris on censorship.1 In a few sentences, he captures some of the main aspects of the problem of offensive speech: that offence has become a major preoccupation in Western, liberal democracies; that religion is very often at its root; that sometimes the mere expression of a different viewpoint is thought of as offensive; that offence to beliefs is linked to issues about respect for the person holding the beliefs; that purging from public space what is considered offensive aims at protecting people’s feelings; and that those who argue for restrictions are motivated by a particular view of the role of speech in society.
In this book, I explore how these themes matter for the way we think about free speech and the legal right to freedom of expression. While most of what I will say applies to offensive speech more generally, the focus is on speech which offends religious beliefs and sensibilities. Religion has been at the heart of global controversies about free expression, sparked by, among others, the Danish cartoons and the Charlie Hebdo publications. On several occasions, the
1 Claudio Magris, ‘A New Writer: The Censor’ in Snapshots (translated by Anne Milano Appel) (Yale University Press 2019) 69.
result was violence and death. But even discussions about offence to religion are often very intense and agitated, conducted with a passion which is unusual when talking about other matters of public interest. Coping with what we experience as profoundly upsetting is always complicated, but it appears that we find it easier to put up with insults to our beliefs about, say, politics or society; offence to religious beliefs activates a different kind of visceral reaction on the part of the offended. This particular difficulty with religious insults is reflected in judicial practice, the prime example being the European Court of Human Rights. As we will see in Chapters 3 and 4, the Court consistently shies away from any meaningful scrutiny of measures which restrict religiously offensive speech, showing wholesale deference to the views of national authorities. By contrast, it scrutinizes restrictions on political speech much more strictly, even when the speaker’s message is profoundly offensive, and has ruled that the offensiveness of a political view is not sufficient reason for banning its public expression.
The question underlying this book is when, if ever, is the government justified in silencing those who offend the religious beliefs of their listeners? Starting from the fact that speech is usually considered a privileged activity compared with other forms of human conduct, I explore the normative reasons which may support or negate offensive speech bans. In order to show how those reasons operate in constitutional practice I use cases from various jurisdictions but it is not the purpose of the book to offer a complete description of the law under any particular system.
Often, I draw on US case law and First Amendment theory. A common objection raised in debates on freedom of expression is that the American model, with its very strong protection of speech, is so exceptional that it is of limited value when we consider speech regulation in other liberal democracies. I think this concern is exaggerated. The First Amendment model developed, to a considerable degree, as a response to the reality that American society was increasingly plural—in politics, religion, and ways of life; enhanced protection for the public expression of diverse views was seen as a way of negotiating the inevitable tensions brought about by the experience of difference. Nowadays, most Western societies are similarly plural and diverse and face the same dilemmas which have led to some of the landmark judgments of the US Supreme Court. I am not suggesting that American law should be transplanted in other legal systems but it seems to me impossible to discuss freedom of expression without looking closely at the theory and practice of the First Amendment, which, with subtlety and sophistication developed over the course of more than a century, offers valuable insights regardless of jurisdiction. Besides, all liberal systems,
while casting the interests involved in free speech disputes in different ways, accord speech a privileged position in the sense that they acknowledge that there is something particularly important in being able to speak our minds.
Further, I am not aiming at constructing a theory of offensive speech, the sort of system of principles or comprehensive methodology which can be applied whenever a communication causes offence. I doubt that this is either desirable or possible. Rather, I will attempt to flesh out the moral content of the claims for offensive speech prohibitions and explore how the values justifying free expression affect how we understand the conflict between speech and the protection of religious sensibilities, taking into account the institutional arrangements which guarantee, and impose limits, on speech. While my suggestion is that the arguments for proscribing offensive expression are unpersuasive (with some very limited exceptions), I hope that the discussion will be interesting for readers with diverse views on the role of speech for the political life in our plural societies.
The first two chapters set the scene. In Chapter 1, I explore the nature of offence as a constellation of unpleasant feelings stirred up when our expectations to be treated in a particular way are disappointed. In the offended state of mind, psychic pain is caused by the clash between internal reality and the external world. Legal systems usually proscribe several types of offensive conduct but offence caused by speech poses particular challenges because of the importance of free expression for individuals and society. I propose that for the purpose of assessing a political community’s response through its institutions to communications which offend some of its citizens, the category of offensive speech should be construed narrowly and distinguished from speech which promotes hatred. The two are morally different, and it is a mistake to borrow arguments from the hate speech debate to support the restrictions on expression which offends.
Then, in Chapter 2, I consider the structure of the claim that the government ought to proscribe religiously offensive speech, and the sort of reasons that can be invoked to support it. The claim, a form of practical reasoning, implies that respect for religious beliefs is a value and that by banning religious insults the government realizes that value. However, coercive restrictions on liberty ought to be based on reasons which all reasonable citizens can be expected to find acceptable, regardless of their personal views on what constitutes an ethical life. This is usually described as a public reason requirement. My suggestion is that even public reason theories that allow for reliance on religious grounds
on some occasions, cannot accommodate the use of coercion against speakers who offend religious sensibilities. The fact that an act or opinion is sinful or otherwise wrong from a religious perspective is not a proper ground for its prohibition.
Is there a non-religious basis for regulating sacrilege and profanity?
A common strategy is to say that protection from offence to religious beliefs is part of the more general right to freedom of religion. When the government proscribes offensive speech is giving effect to that right, and this is a reason which can justify the exercise of its coercive force over speakers and be accepted by everyone as legitimate, independently of their views about God and the sacred, because we all have an interest in living under a regime which protects religious freedom. This is the issue addressed in Chapter 3. I argue that although freedom of religion is an important right, believers have no right-based claim to be protected from unpleasant feelings caused by religious insults. It is, therefore, erroneous to interpret, as the European Court of Human Rights does, the legal right to religious freedom as including a right not to suffer offence to one’s religious beliefs. In turn, this means that cases on religious offence do not involve a conflict between two fundamental rights, namely speech and religion.
The position that religious offence is a proper target for state coercion also entails a broader view about the nature and functions of public discourse and the place of religious speech in it. That view considers public discourse as a highly regulated space for orderly discussion, with the role of the regulator reserved for the state, which can set the terms for what can be said publicly. One of its central themes is the distinction between content and style: the government cannot generally proscribe unpopular, anti-religious speech which is moderate and respectful but can legitimately intervene when the speaker has exceeded the limits imposed by norms of civility. Chapter 4 offers an argument against this approach. It suggests that it is better to think of public discourse as the locus of an open deliberative process where all citizens have an equal claim to speak even if what they say is abusive or offensive. This way it performs a legitimizing function for the exercise of democratic authority by the state and allows individuals to discern, even in decisions with which they disagree, a trace of their moral agency. Such conditions make possible for society a process of self-reflection, which is necessary for change and progress.
Two important limitations on governmental power to regulate speech follow from this understanding of public discourse. On the one hand, freedom of speech covers both the substance and the manner of expression. Speakers can address the important and difficult issues around the role of the sacred in human life in a civil and moderate manner but it should also be possible to use
humour, satire, mockery, sarcasm, and abuse. On the other hand, the agenda and rules of public discussion are not value-neutral issues situated outside public discourse to be determined by the government. They are part of it— substantive norms subject to constant debate and reinterpretation.
The themes of religious speech in public debate and the civility norms relied on to restrict religious offence are pursued further in relation to blasphemy, and its most recent reincarnation as defamation of religion, in Chapter 5. Blasphemy laws have been the usual response to the problem of speech which offends religion and remain rather common even in liberal, democratic legal systems. The first part of the chapter traces the transformation of blasphemy from an offence aimed at the protection of Christianity to a much broader, inclusive norm which protects all religions (and, in some cases, non-religious conscientious beliefs) from vilification and insult. I argue that the even this modernized version should be rejected both because it raises serious concerns about vagueness and unequal enforcement and because it is incompatible with free expression values.
Subsequently, I address the question whether modern blasphemy laws can be justified as a means for safeguarding public order. The argument in their favour rests on the idea that those whose beliefs are offended may become indignant and resort to violence, so the government ought to prohibit expression which has this effect. This position starts from the correct premise that the government has a legitimate interest in maintaining peace and order but concludes, wrongly, that this should be achieved by silencing non-violent speakers. Instead, the morally sound course of action is to arrest those who cannot control their rage and threaten to become violent when their beliefs are insulted.
In Chapter 6 I discuss, and reject, two further arguments for restricting offensive speech which targets the beliefs of religious minorities. The first is that it insidiously reinforces negative stereotypes about them, eventually leading to discrimination against their members. I explore what exactly is meant by the claim that speech leads to discriminatory acts and what causal link between expression and discrimination ought to be required for the government to suppress religious insults. The second argument is that offending religious beliefs is a form of intolerance towards those who hold them, so when the government is restricting communications which offend, it gives effect to the value of toleration. My discussion focuses on the kind of moral obligations which flow from toleration. I defend the view that a commitment to toleration should always leave some room for the expression of a negative attitude towards that which is being tolerated and that, in principle, speech is the appropriate means for conveying such an attitude.
Finally, some clarifications. First, the arguments in this book do not depend on any particular view about the appropriate relation between religion and the state. Secularists who support a strict separation between the two will probably also think that it is impermissible for the government to silence speakers who offend the religious sensibilities of listeners. But it is entirely possible to think that religious viewpoints have their place in our common life as a political community and that it is appropriate for the state publicly to acknowledge the importance religion has in the lives of many of its citizens and still disagree with prohibitions of religiously offensive speech. Put differently, there is no necessary link between support for strict secularism and the rejection of censorship of religious insults.
Secondly, the book does not discuss all the cases where offence is morally relevant reason for determining an actor’s conduct. My concern is exclusively with whether the state can coerce speakers into silence when listeners find their messages offensive. Clearly, there can be other circumstances where the fact that someone will be offended can count as reason against speaking in a particular manner. If I find my friend’s religious beliefs entirely absurd or misguided but know that by ridiculing them I will make him feel deeply insulted, I may decide to temper my language, and this may be what is required of me as a friend. The fact that one has a right to speak does not necessarily mean that speaking is the right thing to do. The fact of offence, then, is reason guiding my conduct.
Thirdly, the discussion in this book proceeds on the assumption that religion is on the receiving end of the insults. The offence-giver is the speaker who attacks religious beliefs and the offence-taker is the devout person whose beliefs are insulted. The position I argue for is that the speaker has a right to express his or her views in a manner which can be respectful or insulting, and that the believer has no claim to be protected from the unpleasant feelings caused by the insults. But the same holds true if the beliefs insulted are secular, with the offensive speech stemming from religious speakers. There are many instances where religious views, and the way they are expressed, can be experienced by non-religious listeners as very offensive. The arguments against prohibitions of speech apply to such cases with equal force. If the law denies its protection to believers whose religious sensibilities are insulted, it ought to do the same when the devout attack the sensibilities of the secular causing them offence.
1
The Nature of Offence
Feeling offended is a universal experience. Even the most thick-skinned of us, those who can routinely brush off whatever others say or do and move on with their lives, have, at times, felt offended. The emotional experience of having suffered offence varies from mere irritation and annoyance to profound and intensely felt shock; the more serious the offence, the deeper and more longlasting the wound inflicted by it will be. The Iliad begins with an offended Achilles sulking in his tent—Agamemnon, the leader of the Greeks, has taken away his slave girl, Briseis—and refusing to fight, thus bringing the campaign to conquer Troy to a standstill. Achilles’s insult is not caused merely by the loss of a possession but by the symbolism entailed in Agamemnon’s action. When the two of them quarrelled in the presence of the other kings, Agamemnon boasted: ‘I will then lead off the fair-cheeked daughter of Briseus, going myself to your cabin—your own prize—so that you know well how much greater than you I am’.1 The effect of these words, Homer tells us, was that ‘in Peleus’ son pain grew; in his shaggy breast was the spirit divided and two ways pondered the matter, whether to draw from the sheath of his thigh his keen-whetted sword blade, make the assembly disperse, then cut down Atreus’ scion, or to desist from his anger and put a strong curb on his spirit’.2 For both the offencegiver and the offence-taker, it is the symbolic significance of the offensive conduct which determines their experience of it.
Insults strike at the view we have of ourselves and our expectations to be treated by others in a certain way—with respect, consideration, deference. They imply that the offence-giver occupies a superior position, looking down on the victim of the insult, who is made to feel belittled. ‘Insult is about humiliation and the assertion of superiority, the assertion or assumption of dominance’.3 This explains why offence causes psychic pain. Our understanding of who we are and our sense of self-worth are inevitably influenced by how others see and treat us. When we receive insults instead of respect this
1 Homer, The Iliad (translated by Rodney Merrill) (The University of Michigan Press 2009) Book 1, 185–86.
2 ibid 188–92.
3 Jerome Neu, Sticks and Stones: The Philosophy of Insults (Oxford University Press 2008) 4.
understanding is shaken and, depending on the nature of the offence and our emotional capacity for working through it, we may be shattered altogether. This can make us feel that we are under attack, inferior, worthless. As Homer knew, in the offended state of mind insults eat us from the inside, arousing murderous rage.
In the example from The Iliad, offence was intentional and directed to a specific person. It is also possible to cause offence to others without referring to them directly, or even unintentionally. A derogatory comment made in the media about a group with a certain characteristic, such as religion, race, ethnic origin, or sexuality, can make someone who has that characteristic feel insulted, even though the comment was not addressed to her as an individual. But offence can also be caused without the offence-giver intending to insult.4 This can happen because he was careless, ignorant, or inconsiderate. He may have entirely failed to notice the risk of giving offence when he was reasonably expected to have known about it, or he was aware of the risk but he accepted it and did or said something which could be interpreted as an insult. Such conduct resembles the legal concept of negligence: the offence-giver has failed to exercise reasonable care not to insult others. In ethics and in law we usually think of injuries caused with intent as more blameworthy than inadvertent injuries. The latter may benefit from an excuse, as, for example, when it was not reasonably possible for the offence-giver to have known that his conduct could offend. Yet, even unintentional insults leave the victim with a bitter taste in the mouth.
It is not necessary for offence to be caused by acts of a specific individual, as it is possible for a person to experience unpleasantness by merely thinking of a state of affairs which he finds generally offensive. One may be offended at the thought of world poverty, or climate change, or the level of illiteracy in some countries. These are cases where offence is caused by a social phenomenon which the offended party thinks is incompatible with her values while being, at the same time, too complicated and widespread to be attributable to individual people. It may be argued that such offensive states of affairs, the impersonal forces of history or the economy notwithstanding, could not have come about unless a number of specific individuals had behaved in a reprehensible manner. For instance, it may be said that the ‘very rich’ are largely responsible for the unequal distribution of wealth and, therefore, world poverty or that the ‘environmentally indifferent citizens’ are largely responsible for
4 For more on unintentional insults see Neu (n 3) 18–24.
climate change. While there may be some truth in those statements, the pool of the people whose conduct is under scrutiny is too large and undifferentiated, and their relationship to the actual offended mental state is too remote to allow us to attribute in a meaningful way offence to conduct. Therefore, it is better to think of offence taken at such states of affairs as a type of impersonal offence whose cause cannot be traced to a specific person.
Finally, there are cases where, although it is possible to relate offence to an individual, it would be unreasonable to ascribe to him any kind of responsibility for the unpleasant mental state he has caused to others. The sight of a seriously wounded person covered in blood after a car accident may be experienced by a witness as an offence to the senses, but it would be absurd to say that he is in any way morally culpable for the observer’s discontent.5 In such cases, the issue of blameworthiness does not even arise.
The range of words and actions which can offend is limitless. Given that what counts as an insult is determined by several factors—social conventions, history, personal expectations, susceptibility to offence—different societies, and different people within the same society, will develop their own understanding of offensiveness. Faced with the ubiquitous nature of offence, a legal system needs to determine whether it is ever justified to use the coercive force of the state to prevent and punish it, and, if so, under what circumstances this should be done. In this chapter I look, first, at some general considerations about the law’s response to offence and then turn to the more specific issue of offence caused by speech.6
5 The example is from Joel Feinberg, The Moral Limits of the Criminal Law, vol 2: Offense to Others (Oxford University Press 1985) 2. Feinberg classifies it as an offended state of mind in the broad sense to distinguish it from what he calls offence in the ‘strict and narrow sense’ which, in addition to suffering a disliked mental state, includes attributing that state to the wrongful conduct of another and resenting the other for causing the offence.
6 I am using offence and insult interchangeably to describe a mental state. In Brutus v Cozens [1973] AC 854 Lord Reid attempted to distinguish, for the purpose of statutory interpretation, ‘insulting’ conduct from other conduct which people may find upsetting. The case concerned a member of the audience at Wimbledon who interrupted the match of a South African player to protest against apartheid. The spectators became angry and he was later prosecuted for violating s 5 of the Public Order Act 1936, which provided that ‘any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behavior with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence’. The magistrates held that his conduct was not insulting to the spectators but the Divisional Court set aside the judgment, stating that conduct which affronts others and shows disrespect or contempt for their rights counts as insulting for the purposes of the Act. In the House of Lords, Lord Reid held that the meaning of ‘insulting’ in the statute was the ordinary meaning of the word and its determination was a matter of fact, not law. The term ‘affront’ used by the Divisional Court was too vague and contempt for the rights of the person as opposed to contempt for the person himself was not as such insulting. He noted that ‘there are many grounds other than insult for feeling resentment or protesting’ (at 862) and that spectators may have been angry but they were not insulted within the meaning of the 1936 Act.
