Free Speech--or Safe Speech?

Within the worldwide rioting and controversy over a few cartoons published in a small Danish newspaper lurks a distinction between two approaches to freedom of speech. In the United States, there are few limits on speech about matters of public controversy. Even the libel laws have been weakened because it seemed more important to allow robust debate, at least about "public figures" than to suppress speech. Two examples illustrate the point.

In 1978, a small group of neo-Nazis decided to conduct a march through the Chicago suburb of Skokie, Illinois, which had a large Jewish population. Even though the march was highly offensive and could have provoked a violent reaction, in the end, the courts held that the authorities could not ban it. The ACLU (American Civil Liberties Union), notwithstanding the many liberals of Jewish origin in its ranks, took the "First Amendment absolutist" position that however offensive, the First Amendment forbade a ban on the march.

A 1949 case, Terminiello v. Chicago, addresses that question: can the authorities ban speech that arouses the anger of others and thus is likely to cause a public disturbance. Terminiello was an extremist who sought to deliver a speech to the Christian War Veterans of America. A hostile crowd gathered, and the authorities arrested Terminiello, who was convicted of disorderly conduct. The case found its way to the U.S. Supreme Court, which overturned the conviction, holding: Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. The job of the police, therefore, is to protect the speaker from those angered by his speech, not to arrest the speaker, even if his ideas are outrageous, to protect the public peace.

There is another view, that finds currency in Europe, and also in corners of this country, for example, some colleges and workplaces. This view is that the social harm (not to say danger of disorder) caused by speech that offends racial, religious, or other minorities, outweighs any benefit in allowing such speech, and therefore the law can prohibit or punish certain kinds of speech. An example of this kind of law is the prohibition in Canada and many European countries, on public denial of the Holocaust, and the German ban on displaying Nazi symbols.

This approach finds its strongest echoes in this country in colleges where campus codes prohibit "racist" and "sexist" speech, and workplaces where employers, fearing "hostile environment" discrimination lawsuits, prohibit certain kinds of remarks and expressions of opinion. These restrictions are often not directly imposed by government, and so are a bit different than the European and Canadian laws.

The vice in this kind of law is not only that it will lead to standardization of ideas by dominant groups, but it is likely to best protect those minorities, such as radical Muslims, who are most easily offended and most likely to react violently to opinions, words, or even cartoons they dislike. The more sensitive the minority and the more severe its reactions when offended, the more likely the law is to cater to its prejudices. For this reason, retreat from the American principle that freedom of speech and the press includes the right to say things that will offend others would be most dangerous. In our society, almost anything one might say other than "Have a nice day!" is likely to offend someone.

A society that starts suppressing ideas just to avoid hurting people's feelings, is well on its way to losing its freedom altogether. This danger is not imaginary. In Sweden, a minister was prosecuted for expressing the view that the Bible condemns homosexual conduct. In Italy, Oriana Fallaci is being prosecuted for her polemics against Islam. And so on, down the slippery slope. That is not to say that people should act in a way that offends others, or that tests the limits of free speech and the patience of the public, just to prove in the most puerile way possible that speech is free--only that the law should not prohibit speech just because some find it offensive or even infuriating.