The Nature of Offence

The experience of suffering offence relates to a constellation of unpleasant feelings stirred up when one’s expectations of being treated in a certain way are frustrated. This chapter explores how the nature of offence matters for the way the law responds to offensive conduct. Prohibiting speech which offends poses a special problem because it clashes with the free speech principle, i.e. the idea that there is something particularly important in being allowed to speak our minds, which sets free expression apart from a general liberty claim to choose a way of life. It is suggested that when deciding what should count as properly offensive for the purpose of exercising state coercion, only a very narrow definition of offensive speech is compatible with the values underlying freedom of expression. Then, offensive speech is distinguished from hate speech. As the two are morally different, it is inappropriate to borrow arguments from the hate speech debate to justify restrictions on offensive speech.

Blasphemy and Defamation of Religions

Blasphemy laws, the paradigmatic example of prohibitions of religiously offensive speech, remain common in many contemporary liberal legal systems. The chapter begins by tracing how blasphemy evolved over time in two important respects. First, while the blasphemy offence was initially triggered by the mere denial of the truth of Christianity, it later came to depend on the manner of expression, and only insulting or intemperate communications fell within its scope. Secondly, modern blasphemy laws in the Western world have expanded to protect not only the dominant religion but all religious beliefs, and, in some cases, deeply held secular beliefs. These newer versions of blasphemy are often referred to as ‘defamation of religion’ or ‘disparagement of religion’ laws. I discuss two types of objections to them: that they are vague and impossible to enforce in a non-discriminatory manner; and that they are as such incompatible with a free speech principle. The final part of the chapter explores the argument that religious offence bans are necessary for the protection of public order because if insults are not censored believers will become indignant and resort to violence. I argue that while the protection of order and peace is a legitimate governmental interest, the morally appropriate way to pursue it is to arrest those who threaten others with violence, not silence the non-violent speakers who offend the feelings of the listeners.

Discrimination and Toleration

The chapter discusses, and rejects, two further arguments for the prohibition of religious insults targeting minority religious beliefs. The first is that they perpetuate negative perceptions of minority groups so over time it becomes acceptable to treat their members in a discriminatory manner. I explore what exactly is meant by the claim that speech leads to discriminatory acts and what causal link between expression and discrimination ought to be required for the government to suppress religiously offensive speech. The second argument is that offending religious beliefs is a form of intolerance towards those who hold them, so when the government is restricting communications which offend, it gives effect to the value of toleration. My discussion focuses on the kind of moral obligations which flow from toleration. I defend the view that a commitment to toleration should always leave some room for the expression of a negative attitude towards that which is being tolerated and that, in principle, speech is the appropriate means for conveying such an attitude.

Religious Speech in Public Discourse

The thesis that the government is justified in restricting insults to religious feelings implies a broader view about the place of religious speech in public discourse, and about the nature of public discourse itself. The implication is that it should be possible to be critical or negative about religion provided that this is expressed in a moderate and respectful manner, but the speaker who disregards norms of civility can be legitimately silenced by the state. This means that public discourse is seen as a highly regulated space for orderly discussion, with the role of the regulator played by the government. The chapter argues that there are good reasons to adopt a different view of public discourse and think of it as the safe space for an open deliberative process where all citizens have an equal claim to speak even if what they say is abusive or offensive if judged by the prevailing civility standards. This is a necessary condition for allowing a society to reflect upon its values, and change. Further, this understanding of public discourse grounds two important limitations on governmental power to regulate speech. First, the procedure and agenda of public debate are not neutral, value-free issues situated outside public discourse and reserved for the government. Rather, they are substantive questions, part of the debate itself, and subject to constant reinterpretation. Secondly, free speech includes, and the legal right to freedom of expression ought to protect, both the substance and the manner in which an opinion is expressed.

Reasons for State Action

The claim that the government ought to prohibit offensive speech is a form of practical reasoning. It tells us what an agent has reason to do under certain circumstances. The first part of the chapter explores in more detail the structure of that claim and the underlying idea that respect for religious feelings is a value which is realized when insults are censored. The second part explores the types of reasons which can be legitimately invoked to justify the exercise of state coercion. We expect restrictions of liberty to be based on reasons which all citizens can be expected to accept, regardless of their own view about what kind of life is worth living (i.e. a public reason requirement). The fact that an act is incompatible with the teachings of a religion is never an adequate reason for its prohibition. After discussing different versions of public reason theory, I suggest that even those which allow for some reliance on religious justifications cannot support the use of coercion against speakers who hurt their listeners’ religious feelings.

Introduction

I learn belatedly, thanks to the seaside indolence of August on a Dalmatian island that piles up stacks of outdated newspapers and weeklies, that in Denmark they have purged—I imagine from the schools—a tale by Hans Christian Andersen with a Christian ending, or Christian elements in any case, so as not to offend the faithful of other churches. In its respectful stupidity, this is a decisive step in the universal history of censorship. In this case, it is a well-intentioned censorship, moved by a concern not to upset cultural or religious minorities. But censorship, after all, is always well-intentioned: it seeks to protect morality, one’s country, the family, institutions, order, society, progress, the people, the children, health....

Responses to Offensive Speech

This chapter discusses whether there is a non-religious justification for limiting religiously offensive speech. The most commonly used argument is that the right to freedom of religion includes a more specific right to be protected from offence to one’s religious sensibilities. If this is correct, it provides a non-religious reason for censorship: even those who are hostile to religion can accept that religious freedom is an important right and that the government is justified in giving effect to rights. The European Court of Human Rights has repeatedly upheld restrictions on expression which insults religious feelings, reasoning that religious freedom, as guaranteed by the European Convention on Human Rights, protects the religious sensibilities of believers from offence. I suggest that this interpretation is mistaken. After exploring how rights give rise to claims, I argue that there is no right-based claim to be protected from the unpleasant feelings caused by religious insults. Therefore, it is unpersuasive to describe cases of religious offence as involving the conflict of two fundamental rights—speech and religion—which require a balancing exercise to decide which one will prevail each time.