The right to ‘offend, shock or disturb,’ or the importance of protecting unpleasant speech

Photo: Chris Christian, CC BY-NC 2.0

Free speech, a fundamental component of democracy, has been the subject of increasing debate as harmful speech, both online and offline, has emerged as a topic of public attention. While a recent New York Times article calls into question whether fixing problems such as online harassment is even possible, the serious threat that online abuse, especially of women, poses to free speech is widely acknowledged.

With such harms in mind, this brief essay does not dispute the importance of striving toward an internet that is a safe and open space for all to exchange views and ideas, regardless of gender, race, religion, or affiliation. Instead, it intends to underline the importance of devising measures to combat harmful speech online that leave sufficient space for the right to “offend, shock or disturb,” as the European Court of Human Rights aptly stated in the Handyside case. While stopping short of arguing for the creation of a “right to insult,” as was recently proposed, this essay does argue that we should take care in safeguarding a space in which unpleasant, unpopular, and offensive ideas and views can be freely shared, to ensure that free speech indeed remains the cornerstone of a democratic society.

The First Amendment to the United States Constitution probably offers the most robust protection to unfavorable speech. Except for so-called “fighting words,” true threats, and incitement, a wide array of offensive speech is protected in the United States.5 This broad scope of protection was recently brought to the fore when the ACLU7 expressed support for Milo Yiannopoulos, editor of the far-right website Breitbart, after his scheduled talk at Berkeley University was canceled following violent protest. This support drew severe criticisms, including from ACLU supporters. Lee Rowland, senior staff attorney at the ACLU, commented in response: “There’s no question that the things that Mr. Yiannopoulos says are unbelievably hateful in nature. But the phrase hate speech is a form of free speech. … we must all reach out and protect the speech that we most disagree with or else the First Amendment is just reduced to a popularity contest and has no meaning.”

The landscape outside the United States looks different. The main treaty regulating speech internationally is the International Covenant on Civil and Political Rights (ICCPR), which sets out the parameters of the right to free speech in Article 19, including the permissible limitations to the right. Limitations to the right to free expression can be permissible if, in short, they pursue a legitimate aim (the rights and reputations of others, public order, public morals, and national security); have a basis in a law that is of sufficient quality (the law should be clear enough for citizens to regulate their conduct and not allow for authorities to exercise unfettered discretion in its application); are necessary and proportionate (there is no overriding public interest in the expression and the limitation is the least invasive measure that could be applied). Similar standards can be found in the European, African, and Inter-American regional treaties protecting human rights. Article 20, which the U.N. Human Rights Committee — the body that oversees the ICCPR’s implementation — indicated is a lex specialis to Article 19, obliges States Parties to the treaty to prohibit by law, first, any propaganda for war and, second, “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

The myriad of questions that these standards raise (what type of speech should be criminalized? should speech be criminalized in the first place? if so, how?) and the considerable gray area of what does and does not qualify as “hate speech” (does a racial slur fall within the remit of Article 20? what about an offensive comment about gay people?) merit a detailed discussion that falls beyond the scope of this essay. It is worthwhile, however, to emphasize the importance of drawing the line between acceptable and illicit speech very carefully and keeping very clearly in mind what offensive speech means for a democratic society.

In order to move forward as a society, we need dissenting voices; even ones that express their views in a way that may be offensive or shocking to others, however unpleasant that might be.

In these pursuits, I suggest three fundamental considerations. First, views on what is considered offensive or acceptable speech will inevitably change according to who is judging. This is exactly why it is dangerous to put any policing powers of this sort into anyone’s hands — let alone the hands of private actors such as intermediaries, who will have a clear interest in erring on the side of caution out of self-preservation. Before you know it, the distribution of human rights material could be prohibited as “propaganda.”

Second, allowing offensive ideas to be expressed verbally serves as an important safety valve against the expression of such ideas by means of physical violence. If we consider expression the middle stage between thought and action, this is also the stage at which correction can take place: by means of vigorous debate.

Third, and most important, we can’t get closer to a functioning “marketplace of ideas” if the only ideas allowed into that marketplace consist of speech everyone agrees with or feels neutral toward. Not much would be left of the vigorous debate that provides the lifeblood of a democracy. In order to move forward as a society, we need dissenting voices; even ones that express their views in a way that may be offensive or shocking to others, however unpleasant that might be.

This essay is part of the Berkman Klein “Perspectives on Harmful Speech Online” collection. To read the full collection visit cyber.harvard.edu/publications/2017/08/harmfulspeech.