In Praise of Offensive Language

Along with all the other rights that are guaranteed by our Constitution* is evidently a new one: the right not to be offended.

You have probably heard about the brouhaha over the Texas DMV's decision to disallow issue of a commemorative license plate bearing the Confederate battle flag - the "stars and bars" - because the agency's regulations permit it to “refuse to create a new specialty license plate if the design might be offensive to any member of the public” (the emphasis is mine). The case has gone all the way to the Supreme Court** for a decision on where limits may be placed on free speech when that speech might offend someone.

I happen to be a very strong believer in freedom of speech, and I've written about it in this space many times before ... most recently last month. I'm very concerned that we are allowing this most important of our freedoms*** to be chipped away not necessarily by government encroachment, but by a misguided desire to protect our collective feelings.

The best argument about the importance of our First Amendment right to free speech - even when it's offensive - was provided in a friends-of-the-court brief from the Cato Institute, among whose authors was the noted satirist and comedian P.J. O'Rourke. My old friend Ed, an attorney who has argued cases before the Missouri Supreme Court, turned me on to this brief, and now I want to share it with you. You can read the full text here (and you should), but if you have better things to do than thinking about about the importance of free speech, here are several of what I believe are the most important excerpts. I apologize for the lengthy citations of words other than my own, but they're important and I urge you to read them if you don't read the entire brief ...

"If this were simply another instance of governmental hypocrisy, we would not be here. There’s no constitutional provision forbidding hypocrisy, which Americans have come to expect from government officials. But Texas’s actions were more than merely hypocritical. They violated the basic constitutional principle—one that Texas had to reaffirm when it was readmitted to the Union—that a state cannot protect the sensibilities of some by restricting others’ freedom to speak."

"Such is the problem with trying to eradicate offensive speech: everything offends someone ... Texas’s law is not just unconstitutional, it is unwise. In a free society, offensive speech should not just be tolerated, its regular presence should be celebrated as a symbol of democratic health—however odorous the products of a democracy may be."

"... it is axiomatic that the First Amendment exists to protect unpopular, unusual, and controversial expression. Moreover, the protections traditionally offered to offensive speech are being slowly and dangerously eroded. The law challenged here imbues the DMV with stunning discretion, and it exemplifies how our increasing cultural timidity—a personal-political correctness—is turning into a frightening movement to suppress and eliminate “offensive” speech."

"A free society should not walk on eggshells, it should sleep on nails. Freedom produces barbs, points, and rough edges, and any attempt to sand those down will not only result in less freedom, it will create a less interesting, dynamic, and robust society."

"If no one ever offensively says 'the Emperor has no clothes' then a society may be condemned to dynasties of naked emperors, and that would be truly offensive."

"A society that protects its most sacred objects and beliefs from offense is one that will soon be ruled by naked emperors."

"We use barbed speech to undermine not just political dictators but the petty oppressors of everyday life: the tyrannical boss, the sanctimonious preacher, the blowhard at the bar, the neighborhood enforcer of stifling norms."

"Even more than 'mainstream' speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it 'might be offensive to any member of the public,' then the government has closed off an important avenue for self-expression."

"Letting people define themselves through offensive expression also benefits others. It’s good to know who the offensive people are and, thus, who you’d like to avoid. Lukianoff, Unlearning Liberty, at 29 ('Prohibitions on hateful speech do nothing to stop hate, but they let resentment simmer, and they also prevent you from knowing who the hateful people even are.'). Exposed Nazis are better than hidden ones because most people would like to avoid associating with them. Similarly, if someone is offended by gun-rights supporters, pro-choice advocates, University of Texas fans, or, yes, Confederate sympathizers, allowing offensive people to speak can enhance the freedom of association."

"Attacks on free speech on college campuses, in particular the freedom to offend, have risen to the level of an epidemic. Students are being taught that 'real' freedom of speech necessitates censorship ... These speech-repressive campus regimes are not just harming students while on campus. Those students will become censorious voters, and 'offensive' speech’s days might be numbered. As Greg Lukianoff, the president of the Foundation for Individual Rights in Education has written: 'Administrators have been able to convince well-meaning students to accept outright censorship by creating the impression that freedom of speech is somehow the enemy of social progress. When students began leaving college with that lesson under their belts, it was only a matter of time before the cultivation of bad intellectual habits on campus started harming the dialogue of our entire country. The tactics and attitudes that shut down speech on campus are bleeding into larger society and wreaking havoc on the way we talk among ourselves.'"

"Unfortunately, speech codes are popping up in colleges and universities, the very places where speech should be 'uninhibited, robust, and wide open.' New York Times v. Sullivan, 376 U.S. 254, 270 (1964). And 'uninhibited, robust, and wide open' debate 'may well include vehement, caustic, and sometimes unpleasantly sharp attacks' on orthodoxies and received wisdoms."

The brief concludes with these words:

"It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression. This Court should affirm the judgment below and let putative offenders be judged in the court of public opinion."

As it happens, I am grievously offended by much of the stupid language coming out of the mouths of our political "leadership" lately. It may not contain individual offensive words**** per se, but it's profoundly offensive to me because it lacks evidence of such concepts as intelligence, forethought, compassion, and common sense.

Does this mean it should be outlawed? Using the formula of the Texas DMV, it should. And that's scary ... because if I can't hear our politicians being stupid, how do I know how to cast my vote?

Have a good day. Offend someone, even if it's me.

More thoughts tomorrow.

Bilbo

* And there are other ones besides the right to be armed to the teeth, believe it or not.

** Walker v. Texas Division, Sons of Confederate Veterans, docket #14-144.

*** Sorry, Second Amendment fans.

**** Such as those in the famous George Carlin routine "Seven Words You Can't Say on Television." Of course, nowadays not only can you actually say those words on television (at least on HBO and Showtime), but you can even hear them in places like preschools. Times change.