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Sheila Kennedy on Free Speech

I’m very excited to finally get to meet Sheila Kennedy, an active reader of this blog, when we appear together at the CFI of Northeast Ohio conference on Oct. 6. And even more so after reading this post on her website about an exchange in one of the courses she teaches:

Monday night, a student in my Law and Public Affairs class asked a question I get every so often. We were talking about free speech, and she wanted to know whether the right to say one’s piece extended to speech that “offended” people. It was pretty clear that she expected some variation of “well, no, there are limits.”

As I explained to her, among our cherished American rights, one that we don’t have is the right not to be offended. A right to expression that could be trumped by someone’s hurt feelings–or by a government concerned about someone’s hurt feelings–would not be a right at all.

I know Michael Heath hates it when I say that no one has a right not to be offended, but I think it’s mostly because he misunderstands what is clearly meant by those words. It doesn’t mean no one can be offended, it means that no one has a right to have the government punish or censor someone merely because they are offended by someone else’s expressed views. This is not a clash of two rights; the second is not a right at all.

Comments

  1. David C Brayton says

    Offensive speech is precisely the kind of speech that needs protection. Unoffensive speech rarely is punished by the government.

  2. slc1 says

    Actually, I would think that Heath agrees with the notion that no one has the right to demand that government censor speech that offends them. I can hardly think otherwise since he becomes quite offensive on occasion, especially when someone attacks Ronald Reagan unfairly in his humble opinion.

  3. Michael Heath says

    Ed writes:

    I know Michael Heath hates it when I say that no one has a right not to be offended, but I think it’s mostly because he misunderstands what is clearly meant by those words. It doesn’t mean no one can be offended, it means that no one has a right to have the government punish or censor someone merely because they are offended by someone else’s expressed views. This is not a clash of two rights; the second is not a right at all.

    Well first off, I’m grateful for Ed promoting more speech about this matter.

    I do not “misunderstand” anything. I understand Ed’s concept as he applies it perfectly while generally ending up with the same policy conclusions he does. Instead I find his approach fundamentally flawed because (I think) it requires an arbitrary determination of the existence of rights while I think my approach can be consistently applied. I’ve yet to see my approach fail though on the margins it sounds awkward.

    What I don’t recall is Ed ever explaining a core premise needed to get to his conclusions; that we can determine when a right exists or does not exist and who gets to decide whether a right exists or not (I think the government). So I do admit ignorance on how Ed does this, I can’t figure that out on my own, and therefore I welcome Ed presenting this construct, preferably in its own blog post since I think his approach is critically important in understanding since it’s the most popular approach I’ve encountered.

    There is no air between us as best as I know when it comes to how government decides when to protect a right, when to not protect a right, and how government determines when to protect a competing right at the expense of another’s right. One important reason why I perceive no space between us is that Ed advocates the court apply the 9th Amendment just as I do where the 9th asserts we have unenumerated rights.

    So on the matter Ed quotes from Sheila Kennedy, I would argue the one proponent has a broad right to offend another. That’s because I promote our right to offensive speech as pragmatically broadly as possible, which would mean in venues where the public meets; though not by barging into someone’s home to offend them since our speech in their home is inferior to other rights the offended enjoy – like their property and privacy rights. I think Ed deals with the latter by claiming that somehow a person’s right to offensive speech doesn’t exist in another’s home, though I’m not sure, perhaps he uses the same competing rights model I do here. I do know that those who use his approach frequently argue, “I have no right to barge into another’s home and offend them with my speech”. I find such rhetoric sloppy and inconsistent because it requires some outside body to determine not just when a right exists or doesn’t exist, but when the right disappears. I would instead assert, the government protects my ‘castle doctrine’ rights even at the expense of another person’s wish to express offensive speech to me in my home. So I recognize competing rights are in play, the government has a role to play in those competing rights, and their role here is to protect my privacy and property rights at the expense of another’s speech rights.

    Where Ed and I differ where I think Ed is wrong is that I would also argue the offendable person has every right to not be offended. If they’re confronted with offensive speech they can leave or they can avoid venues where they anticipate they’d be offended, e.g., the can switch the channel on the TV being an old truism. But when it comes to how the government plays in this interaction of competing rights, we’ve long held the right to speech sacrosanct; that’s reflected by our right to speech being numerated and all the attendant policy arguments over the past couple of hundred years on why the right to speech is much more important than the right to not be offended. So the fact the government broadly protects our right to offend others is a position where Ed and I arrive on the same spot when it comes to government intervention, or not.

    So from my perspective I can’t discern why Ed continues to think I’m confused or misunderstand anything. I simply think the following regarding negative rights:
    1) Our [negative] rights are effectively limitless because they’re inalienable and because we have no workable mechanism to determine when a right exists or doesn’t exist.
    2) We can apply a ‘just governance’ standard as noted in the DofI to govern ourselves. Where government can limit or prohibit the exercise of some of our rights if:
    a) We’ve constitutionally delegated powers to that government entity, e.g, the power to tax our income, or to seize property they must compensate us for under certain limited conditions (emminent domain).
    b) A just government’s obligation to defend our protected rights, even sometimes at the expense of infringing on the inferior rights of another.

    Ed – I’d love to see a blog post from you on where you stand when it comes to how we should instead determine when a right exists or not and who gets to make that determination; the government? With my model we don’t require such a step, the government only intervenes when a) their power to infringe on our rights is properly exercised given delegated authorities
    b) to defend our constitutionally protected rights against unconstitutional government encroachment of our rights
    c) to defend the superior rights of one party over the rights of another.

  4. Michael Heath says

    David C Brayton:

    Offensive speech is precisely the kind of speech that needs protection. Unoffensive speech rarely is punished by the government.

    I not only whole-heartedly agree, but would take this further. We should value offensive speech and the idea of more speech when confronted with offensive speech; even when government has no role to play in protecting one person’s rights over another. One reason is because those who are offended are frequently offended because their positions can’t withstand scrutiny and yet impact all our liberties. So the importance of offensive speech shouldn’t be limited only to when government is obligated to act to protect one’s offensive speech rights, but also when it comes to our dealings with another where government has no role to play. I.e., we should value and encourage speech because it promotes human progress, by allowing us to kill sacred cows and help supplant defective conclusions with defendable conclusions.

    slc1 writes:

    Actually, I would think that Heath agrees with the notion that no one has the right to demand that government censor speech that offends them. I can hardly think otherwise since he becomes quite offensive on occasion, especially when someone attacks Ronald Reagan unfairly in his humble opinion.

    Well in the public square you’re mostly right, but there are limits, no one has the right to force me to watch a TV channel I find offensive or as I noted earlier, barge in my house and offend me. So I do promote the broad protection of offensive speech rights within a framework that there are times when superior rights do limit the exercise of my offensive speech rights.

  5. slc1 says

    Re Heath @ #4

    barge in my house and offend me.

    That constitutes trespassing which is illegal. However, how about someone standing in front of his house on a public sidewalk waving a sign that contains a message which Heath finds offensive?

  6. Abby Normal says

    In civil suits emotional distress can certainly be a factor. What is being offended if not the state of being emotionally distressed? This would seem to suggest that some legal recognition of a right to not be offended exists. Similar to hate crime laws, it only comes into play when some other wrong has been committed. But against the thus far unsupported assertion that the right to not be offended simply does not exist, I’d have to give the edge to Heath’s position. But I too would like to see a reasoned analysis of why such a right does not exist.

  7. Michael Heath says

    Me earlier:

    barge in my house and offend me.

    slc1 responds:

    That constitutes trespassing which is illegal.

    It’s illegal precisely because we weigh the right to property and privacy in this context greater than someone’s right to speech on our property. So your point elaborates my argument, it doesn’t refute it.

    slc1 responds:

    However, how about someone standing in front of his house on a public sidewalk waving a sign that contains a message which Heath finds offensive?

    Let’s assume I’m an evangelical Christian ob-gyn with children aged 7 – 15 years old. Let’s assume I’ve indoctrinated my kids to be evangelical Christians. Let’s assume the sign has a graphic picture of a mutilated aborted fetus and reads:“God will send all baby doctors to Hell until abortion is illegal”. Let’s also assume that because I’m an evangelical Christian, this offends me (it actually doesn’t) and in this context more importantly, I don’t want my kids exposed to such displays and therefore call the cops to remove the offensive protester.

    So here we have some competing rights in play, like parental rights to defend their kids from some offensive content. A public sidewalk through a neighborhood isn’t the equivalent say, of a public park in the city center. That means we can protect the rights of the public more in the latter venue than we can in front of a private home which happens to have a public sidewalk.

    I don’t know the right policy outcome in this case, but am convinced that in order to properly defend the superior rights of one party over the rights of another, we need to consider both the rights of all impacted parties along with the delegated powers and obligations of government. The value of precedent also plays a wrong since it provides the wisdom of the past to rule in a way that best protects all our rights, though at the expense of some in this hypothetical.

  8. Michael Heath says

    Fixed – The value of precedent also plays a wrong role since it provides the wisdom of the past to rule in a way that best protects all our rights, though at the expense of some in this hypothetical.

  9. says

    You don’t have a right not to be offended even in your own home. If you invite someone into your home and they say something offensive you can’t call the cops and have them arrested for it, the most you can do is revoke that invitation and kick them out of your home. The cops only get involved if they don’t leave and it becomes trespassing.

    That’s where I think Michael Heath is making the mistake, he’s confusing speech having social consequences and speech having legal consequences. Free speech protects you from most legal consequences (excepting things like threats) but not from social consequences (being kicked out of someone’s house, being boycotted, losing friends, etc).

  10. Michael Heath says

    Noadi writes:

    You don’t have a right not to be offended even in your own home. If you invite someone into your home and they say something offensive you can’t call the cops and have them arrested for it, the most you can do is revoke that invitation and kick them out of your home. The cops only get involved if they don’t leave and it becomes trespassing.

    That is my argument of course, so thanks for making it. The fact is my right to not be offended in my own my home is greater than your right to remain in my home to continue to offend me. So if you refuse to leave, the cops will help if they determine you are trespassing.

    Noadi writes:

    That’s where I think Michael Heath is making the mistake, he’s confusing speech having social consequences and speech having legal consequences. Free speech protects you from most legal consequences (excepting things like threats) but not from social consequences (being kicked out of someone’s house, being boycotted, losing friends, etc).

    My ideas regarding rights comes straight from the framers. They pointed out that government involvement regarding the exercise of our rights frequently has the government not becoming involved at all as I point out. One example I remember reading about at the time the framers were developing the Constitution was that a man had a right to wear his hat in his home, but that right didn’t extend to the government protecting that right when his wife told him to take it off. He was on his own in that case. [IIRC this example comes from Randy Barnett’s book, The Lost Constitution; a book which Ed reports also had a positive impact on him.]

  11. slc1 says

    Re Noadi @ #9

    I think that Heath’s implication was that the individual barged into his house, presumably uninvited. That’s trespassing and such an individual would be subject to arrest.

  12. hunter says

    Michael Heath @ #10:

    The fact is my right to not be offended in my own my home is greater than your right to remain in my home to continue to offend me.

    No one has a right to remain in your home. They don’t have a right to be there at all.

  13. says

    Michael Heath wrote:

    What I don’t recall is Ed ever explaining a core premise needed to get to his conclusions; that we can determine when a right exists or does not exist and who gets to decide whether a right exists or not (I think the government). So I do admit ignorance on how Ed does this, I can’t figure that out on my own, and therefore I welcome Ed presenting this construct, preferably in its own blog post since I think his approach is critically important in understanding since it’s the most popular approach I’ve encountered.

    I have explained that premise many times. I draw the line in the same place that Thomas Jefferson drew the line and I’ve quoted his statement about rightful liberty dozens of times on this blog. An individual has a right to take any action as long as that right does not harm another person against their will or prevent them from exercising their own equal rights.

    Where Ed and I differ where I think Ed is wrong is that I would also argue the offendable person has every right to not be offended. If they’re confronted with offensive speech they can leave or they can avoid venues where they anticipate they’d be offended, e.g., the can switch the channel on the TV being an old truism…

    So from my perspective I can’t discern why Ed continues to think I’m confused or misunderstand anything.

    The first paragraph there is exactly why I think you misunderstand what I mean when I say that no one has a right to not be offended by the expressed views of others. As I said in the post above, it does not mean — could not mean — that no one has a right to make personal choices to avoid being offended — of course they can turn off the TV, or walk away and not listen. What I mean — and I really do think this should be obvious, since any contrary construction of its meaning is so clearly absurd and I would have to be a complete idiot to mean such a thing — is that no person has a right to force others not to express views that offend them.

    We do end up at the same place on most of these issues, of course. I just think the “of course they have a right to be offended” response is only meaningful if you think what I mean when I say “no one has a right to be offended” is something I could not possibly mean.

  14. Johnny Vector says

    I see Mr. Heath’s approach as a Schneierian take on rights. And since Schneier is always right, I have to side with Mr. Heath. Rights, like security, are a tradeoff. In the case of speech rights, it’s a very easy tradeoff, but as the scenario with someone picketing your house with a sign, we see there are cases where the rights of the receiver of the speech can outweigh the rights of the sender. Once you have such a case, you have pretty much stipulated that there is a right to not be offended. It’s a very small right, found only in dark and egregious parts of the Big Ol’ House Of Rights we all live in, and almost always outweighed by the right of free speech, but it’s nonzero.
     
    Of course, as noted above, there seems to be little to no difference between the two positions, other than semantics. At least I can’t imagine a scenario that would come out differently depending on which approach you took. Kind of like the difference between atheism and pure deism, it seems to have no practical effect.

  15. Michael Heath says

    slc1 writes:

    I think that Heath’s implication was that the individual barged into his house, presumably uninvited. That’s trespassing and such an individual would be subject to arrest.

    That was not my presumption. My argument works just as fine if an invited guest begins to offend you, you ask them to leave in order to exercise your right to no longer be offended, and they resist. You can call the cops and they’ll remove the person for at least trespassing if not other misdeamnors. Their right to exercise offensive speech in a private domicile is outweighed by your competing property and privacy rights.

  16. slc1 says

    Re Michael Heath @ #15

    Not to quibble over words but using the term barged in implies that the individual was uninvited.

    A public sidewalk through a neighborhood isn’t the equivalent say, of a public park in the city center.

    I would argue that it depends on where the public sidewalk is. If the sidewalk is on a side street in a residential neighborhood, I would agree with Heath. However, if the sidewalk is on a main thoroughfare, such as a state or federal highway, the legalisms may be different.

  17. abb3w says

    I think this overlooks one of the (lousy) areas in US case law, from Chaplinsky v. New Hampshire, which notes some of the limits on speech.

    Libel and other defamation, though with truth a sovereign defense; this is basic enough that may have trouble even realizing this is a limit on liberty. Obscenity and lewdness — which some of the more libertarian might be inclined to file in the “blasphemy” column. But those are tangential, here.

    The big problem, however, is “fighting words”, defined as those “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In Cohen v. California, the description given was “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction”. It seems the key difference is the limitation to personally abusive epithets. However, it would appear that in much of the world, blasphemy is also a form of speech that “when addressed to the ordinary citizen [is] as a matter of common knowledge, inherently likely to provoke violent reaction”.

    I’m also uncertain on the legal nuances of immediate breach of the peace. Presumably, the delay (EG, translation or book shipments) between publication and audience encountering it doesn’t matter. Does the slight delay needed to go find others to riot with count? I’m not sure.

    I’ll also note in passing, Burstyn v. Wilson appears tangential in that sacrilege/blasphemy has been held invalid as basis for prior restraint, but did not address whether it might be allowed to punish such as a past offense.

  18. Chiroptera says

    abb3w, #17:

    An interesting point.

    I’m also uncertain on the legal nuances of immediate breach of the peace.

    I suspect that is one of the things that makes a general blasphemy law different than “fighting words.” Namely, “fighting words” usually involve the individuals engaging in a dispute face-to-face with tempers rising. I think that someone reporting after the fact that a Christian girl (just to make up a totally hypothetical situation) placing pages of the Quran in a waste-paper pile lacks the immediacy implied in “fighting words.”

    Maybe writing the name of Allah in Arabic on the sidewalk and stepping on in front of a Muslim with whom one is in a very angry confrontation counts as fighting words, but if it does, that’s not quite the same as blasphemy.

    There’s also another big difference. Although people to mention the possibility of riots, that’s not the main argument used in favor of blasphemy laws. The main argument is that religious beliefs are somehow a special class of beliefs that must be respected.

  19. Abby Normal says

    An individual has a right to take any action as long as that right does not harm another person against their will

    If emotional distress isn’t considered harm then why does the tort of outrage exist?

  20. Michael Heath says

    Ed writes:

    I have explained that premise many times. I draw the line in the same place that Thomas Jefferson drew the line and I’ve quoted his statement about rightful liberty dozens of times on this blog. An individual has a right to take any action as long as that right does not harm another person against their will or prevent them from exercising their own equal rights.

    I am obviously aware of this perspective, sorry I don’t recall you championing it. Possibly because I’ve seen you assert many times certain rights don’t exist at all, even when the exercise of those rights do not necessarily impede on the rights of others, e.g., the right to not be offended. So your repeated assertions a certain negative right doesn’t exist isn’t explained with your Jefferson reference; therefore I thought you were using some other model.

    My primary problem with the Jefferson approach is that it can’t be, and isn’t, consistently applied like my approach. I’ll use Thomas Jefferson’s example about one person’s right to throw a punch ends at somebody else’s nose*. That framework fails. If someone is threatening violence and the physical safety of someone or those around them, his or her right to batter that person not only is a right which has always existed though not normally not protected by the state, but one that will protected by the state when self-defense laws apply.

    Ed writes:

    . . . is that no person has a right to force others not to express views that offend them.

    Well of course, we’re talking about negative rights here, not negative and positive rights. In fact I made that clear in my first post in this thread by putting “negative” in brackets. So I’m in no way claiming or have ever claimed my right to do something requires any actions from any private individual(s). Therefore I’m not sure you’ve sufficiently weighed how I frame the exercise of rights.

    I’ve been testing this model now for around ten years and have yet to see it break down. I was motivated by the fact it was so easy to see the Jefferson model fall apart, plus the fact proponents of that model are always arguing some right doesn’t exist where I asked; how do they decide that??? When I read the SCOTUS rulings I’m also mindful that opinions don’t try to conjure up claims of the existence of a right or not, but instead whether a certain right is protected or not – which is consistent with my approach.

    My approach does appear awkward and even abstractly absurd when discussing extreme issues where there is no controversy. Where I’m happy that happens only at the extremes whereas the Jefferson model fails in the more normal course of human activity. For example, a person’s right to kill another person. A person’s right to kill someone not only exists, but in some instances will be protected by the state. Of course that right to kill does competes with another’s right to life where the government predominately protects the right to life so much it will justifiably imprison some killers for life. But not when the law of self-defense applies whereas Jefferson’s model falls apart when self-defense is a protected cause of action.

    *We’ll give Jefferson some latitude here since technically the mere throwing of a punch can be assault.

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