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Offend? The Limits of Free Speech

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First Amendment Scholar Richard Garnett on the Limits of Free Speech

SOUTH BEND, Indiana, MARCH 14, 2006 (Zenit) - Is there a right to create "offensive" speech? This question arose in the wake of rioting and protests over anti-Muslim cartoons in the Western press.

Many Islamic leaders called for criminal sanctions against the offending newspapers. Some newspapers refused to print the cartoons. And the Vatican press office issued a statement asking authorities to intervene to protect religious believers from offense.

Notre Dame law professor and free speech expert Richard Garnett argues that freedom of speech does include the right to say things that others may find offensive, and that hearers of such speech are accountable for their responses in light of this principle.

He shared with us why the dangers of punishing "offensive" speech may be worse than the results of tolerating such speech.

Q: What does it mean that there is a right to freedom of thought and expression?
Is that different than freedom of conscience? Does the wording matter?

Garnett: Terms like "thought," "expression," and "conscience" -- or, in our Constitution, "speech" -- are, of course, difficult to define precisely. This is one reason why legal doctrine relating to the "freedom of speech" is contested and often confusing.

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That said, I do think it is worth distinguishing between freedom of belief or thought, on the one hand, and freedom of expression or speech, on the other.

In a free and just society, it would seem that persons enjoy an absolute moral right to believe and think as they choose. At the same time, such a society may well be able to justify some restrictions on speech or expression, on the theory that the latter can have negative effects on third parties or on the common good.

Still, in the American constitutional tradition, we have -- in my view, wisely -- tended to strike the balance in favor of free speech, even in cases where speech causes offense or harm.

Q: How is the right to freedom of thought and expression outlined in the U.N. Universal Declaration of Human Rights similar to or different from the "freedom of speech" protected by the U.S. Constitution?

Garnett: In one sense, it might be best to say that the two freedoms are similar, or the same. Certainly, both reflect underlying premises about human dignity, the limits on government authority, the importance of the pursuit of truth through free inquiry, and the independence of the marketplace of ideas.

At the same time, the First Amendment is a legal text, whose meaning is determined in the context of constitutional litigation, with reference not only to normative claims but also to history and the original understanding of the Constitution's ratifiers.

The Universal Declaration, it seems, is more -- aims higher, perhaps -- than a statute, or even a constitutional provision. Also, the Universal Declaration emerged out of a conversation, and in a context that is different in many ways from the context out of which our First Amendment, and the Supreme Court's doctrine, emerged.

To generalize, we might say that our First Amendment doctrine reflects premises that are more individualistic and libertarian than those that animate the Universal Declaration.

Q: A recent Vatican press statement stated plainly that the right to freedom of thought and expression did not include the right to offend the religious sentiments of believers. What is the appropriate way to understand this statement? Is saying that there is no right to offend the same as saying that there is no right to speech that others find offensive?

Garnett: I cannot speak to the motives or aims of those who drafted the press statement.

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That said, it is incorrect to say that the freedom of expression does not include the right to say things that have the effect of offending the religious sentiments of believers. The freedom of speech must include the right to criticize, and criticism is sometimes offensive to those who are being criticized.

Religious sentiments and beliefs often animate actions and should be examined, challenged and criticized.

A freedom of speech that was limited by the unforeseen, unintended or unreasonable reactions of hearers -- including religious believers -- would be a very skimpy freedom.

The best way to understand the Vatican's statement, then, is as stating that, as a moral matter, the freedom of speech does not justify or excuse speech or expression that is designed to insult or offend the dignity of other persons, or the good of religion.

The freedom of speech, like all freedoms, should always be exercised with a proper respect for persons and with appropriate charity. As a matter of positive law, though, we should all be careful about calls for censorship or punishment of speech that causes offense, or even that is intended to offend.

Q: The principle that there is no right to offend religious believers could be broadened to include all sorts of groups and individuals. Can you foresee instances where the ability of the Church to speak on important issues may be threatened if legislation embodying this principle were enacted?

It is already quite clear that some Church teachings and proposals are regarded by many as unwelcome and offensive -- teachings and proposals that, as a matter of religious freedom and vocation, Catholics may and must proclaim.

Calls to censor or punish expression -- for example, anti-Muslim cartoons -- that offend religious sentiments resemble closely the calls to censor or punish religious expression that contradicts contemporary liberal views on, say, sexual morality.

Q: How does the state protect speech without allowing speech that incites violence and disorder as the Danish cartoons have done?

Even in the American free-speech tradition -- a tradition that, again, leans strongly in favor of protecting offensive and harmful speech -- the state may prohibit and punish incitement to, and threats of, violence. Terms like "incitement" and "threats" must be understood and applied carefully, though.

Not every statement that has the effect of causing disorder is, by virtue of that effect, properly regarded as "incitement."

Commitment to a meaningful freedom of speech carries with it a resolve to hold hearers accountable for their reactions to speakers' expression, even if that expression is "offensive."

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As a general matter, the dangers that accompany efforts to use state power to prevent or punish "offensive" speech are greater than those that accompany tolerating such speech.