Should it be an offence to offend?

freedom of expression, human rights, Article 19

Should speech and expression that offend or might offend others be made unlawful? The Danish cartoons of the prophet Mohammed that were published a decade ago and the cartoons published by Charlie Hebdo early in 2015 offended some people.

A few of them were not merely offended, but instigated or undertook lethal action, citing the offence caused as their justification. The topic has re-emerged - if more as farce than as tragedy - with the refusal of the company Digital Cinema Media to screen a Church of England advertisement that included the Lord’s Prayer, which the company judged ‘carries the risk of upsetting, or offending, audiences’. As many have pointed out, a great deal of other advertising content that the same company routinely screens without qualms is a good deal more likely to offend some audiences.

Do demands to ban offensive speech have any merit? Rights to freedom of expression are not absolute rights. They may be qualified or restricted to protect other rights, or for other serious reasons. Speech that is used to intimidate, to blackmail or to incite hatred is forbidden by law, and carries criminal penalties. Defamatory speech is forbidden by law and carries civil penalties. Offensive speech is all around us, but it is not unlawful and incurs no penalties at all. Should this be changed?

I believe that the idea of making offensive speech unlawful is a non-starter. Forms of expression that offend some people barely register with others (think of the use of certain swear words or gestures). Forms of expression that are taken as routine and commonplace by many people, offend others. If we were to ban all speech that offends some others, we would in effect have to restrict speech that offends the sensitive and the eccentric, as well as speech that offends more widely. Offence is in the eye of the beholder, and any attempt to make offensive speech unlawful would place everybody’s freedom of expression at the mercy of others. It would undermine the right to freedom of expression.

This does not mean that there is nothing to be done when we find others’ speech offensive. It means only that this is an area that cannot be regulated by law. There are lots of good reasons not to speak in ways that will offend others - from good manners to prudence. And there are lots of effective ways to react when others speak in ways that we find offensive. For starters, it may be a good idea to speak to those whose speech offended. They may not have realised how or why their speech would offend, they may stop speaking in those ways, apologise, or explain why they said what they did. In some cases they may even show that there were good reasons to express themselves as they did. Additional legislation cannot provide a remedy for those who find some sorts of speech offensive.

Further reading:

Press Release - Statement on Freedom of Expression and the Lord’s Prayer
Publication - Freedom of Expression, Legal Framework
The top ten things you need to know about freedom of expression laws