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The Outrage Override

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ethicsBy Carl Cohen

Whom do you hate? Perhaps you hate Nazis, or the Taliban, or people who discriminate against homosexuals. Maybe you hate homosexuals. Homosexuality, we are told in Deuteronomy, and in many hateful sermons, is an abomination. Ought such hateful talk be forbidden? In Canada, just a few years ago, a man peacefully distributed pamphlets denouncing as sinful the introduction of homosexuality into the curriculum of the Saskatoon Public Schools. Four gay citizens complained to the authorities and he was punished -- obliged to pay them $17,500 because their feelings had been hurt.

In Canada (a country of which I am very fond) one has the right not to be offended. The human rights law there prohibits speech that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons.”

What about those sincere Christian clergymen who hate homosexuality and express that hate in their sermons? The Saskatchewan Human Rights Commission, guardian of the dignity of the citizens of that Province, tells us that it is all right to express the opinion that homosexuality is sinful, but this message must always be delivered in a way that does not come across as hateful to one’s listeners. Any speech is hate speech (in Canada) when some folks are offended by it.

That’s the way it is in very many countries. In the Netherlands, this is the law: “He who publicly, orally, in writing or graphically, intentionally expresses himself insultingly regarding a group of people because of their race, their religion, or their life philosophy, their sexual orientation, or their physical or mental disability, shall be punished by imprisonment of no more than a year…” It is still lawful to insult people in Holland, but only in some ways. Be careful.

Be even more careful in France, where public and private communication that is defamatory or insulting, or that incites discrimination or hatred against a person or group of persons on account of ethnicity, nationality, race, religion, sex, sexual orientation or handicap is strictly prohibited.

In Germany, watch out! Up to five years imprisonment may be the sentence suffered by speakers who “call for…arbitrary measures against parts of the population, or insult, or maliciously slur or defame them.”

In India any manner of expression is prohibited that someone might consider insulting to his religion. And so on and on -- in Ireland and Norway, in Poland and the UK, in Singapore and South Africa. Over most of the globe, what you may lawfully say or write is sharply restricted by the sensibilities of others. Being nice is held more important than being free.

If you find all this disheartening, as I do, take some consolation in this: our country, the United Sates of America, is unique in the world in formally defending the freedom of speech, even when it is hateful. Instances of this defense are innumerable. The classic case, of course, was that of the American Nazi Party, which sought (in 1978) to march with banners and symbols in the streets of Skokie, Illinois, whose population is very largely Jewish. Why did they choose Skokie?  Because they aimed to unify Jew-haters, and (they explained) where there are the most Jews there are also sure to be the most Jew haters. I wrote vigorously in the pages of The Nation defending their right to march; the American Civil Liberties Union, in which I was then active, defended in court their right to march, and ultimately prevailed. 

As a consequence of that success, membership in the American Civil Liberties Union of Illinois, heavily Jewish, fell by almost half. Many who had loyally defended the freedom of speech over the years could not tolerate the exercise of that freedom by them! I call this the “outrage override.” Freedom of speech, sure – but not for views as ugly and abhorrent as theirs!  And so it has been in our country over the years, the identity of the intolerably outrageous group changing from time to time: atheists, anarchists, Nazis, communists – and now the latest batch of scoundrels: racists spewing hate speech.

Of course racists really are nasty, and the hate speech in which they indulge really is disgusting. That belief, adopted thoughtfully and rationally, we hold with the same conviction and passion that has motivated every outrage override in its historical turn. But the freedom to speak on matters of public concern is not divisible by topic or party. We will protect that freedom for everyone, including nasty and disgusting folks, or we will lose it.

At the University of Michigan, always a leader in political correctness, faculty members were dismissed, a few decades ago, for their un-American political views. Now, in self-punishment, we hold an annual lecture on free speech issues in their honor. Much more recently we had a speech code here at Michigan to protect the sensibilities of women and minorities, but it was struck down by a court from which we received, abashedly, a very stern lecture, well deserved.

But as a country we are not doing too badly in this arena. The First Amendment is the glory of our Constitution; nowhere else in the world is there constitutional protection for speech as forthright and as forceful. Yes, it does have some rough consequences, because speech can insult, can belittle, can incite and can offend. Our Canadian brethren are kind and protective, but unwise. There can be no right, in an open and diverse society, not to be offended. If you think Jews are pushy, you are free to say that publicly among us; and if you think blacks are lazy, or Polacks are dumb – and so on – you may say that too.

You may publish views that are stupid and mean, and you may parade through public streets proclaiming your favorite hatred. This is a critical part of what it means to say, as we often do, that “we live in a free country.” Freedom can hurt, and it often does – but it is far, far more important in the body politic than being nice.

In every generation that lesson must be re-learned. This very year the Chief Justice of our Supreme Court was obliged to teach it once again, in a vexed dispute about some truly hateful public speaking that, in our country, was protected here as it would have been nowhere else. For the Court majority Chief Justice Roberts wrote:

“. . .speech cannot be restricted simply because it is upsetting or arouses contempt. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable.’” Snyder v. Phelps, 2 March 2011]

The best response to nasty speech is more speech, not laws or codes to restrict speech. Of course we don’t welcome hate speech, or commend it. But when we confront it Americans may take pride, in a deep way, in the fact that even they have the right to say their piece!

(Carl Cohen is a professor of philosophy at the University of Michigan, Ann Arbor. This article will appear in a Fall issue of “Consider,” the publication of the University of Michigan chapter of Hillel Foundation.)


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