• Sharon Chau

The Right To Offend



Summary:


  • Free speech is a principle that is upheld by most countries, though all have limitations against absolute free speech such as curtailing speech that incites violence.

  • Free speech can destroy bad ideas or expose the truth.

  • In the examples of art and literature, their attempt to engage with the human condition and their artistic or literary merit mean they should not be censored.

  • The question of how one defines offence and who has the right to decide produces pragmatic challenges to those who support censorship.

  • Practical arguments against censorship include the chilling effects it creates as well as the high buy-in cost for art and literature.

  • Speech should be banned in instances of direct harm, but we should err on the side of free speech and defend the right to offend.



Context of Free Speech


Free speech is a contentious principle that has been debated for centuries, particularly in the forms of art and literature. Art is defined as the various branches of creative activity, such as paintings and music, while literature refers to any body of written works including fiction and non-fiction. Offence is the state of being insulted or morally outraged. In this essay, I will argue that it is never permissible to ban art and literature on grounds of offence due to their high buy-in costs, the pragmatic difficulties of defining offence and its propensity for abuse, and the chilling effect.


There is an important point to note before any discussion of free speech. All countries realise that free speech is not an absolute right and attempt to curtail it - for example, by banning incitements to violence and the shouting of “Fire!” in a crowded theatre. Philosophically, it is also recognised that free speech is a social right to be balanced with competing rights. Speech “is never a value in and of itself but is always produced within the precincts of some assumed conception of the good” (Fish, 1994). In light of this, the question to be discussed is not whether free speech, in particular art and literature, should have any limitations at all, but where we should draw the line. In the context of this essay, art and literature should definitely be banned when direct harm is proven.


The Importance of Free Speech



Many philosophers argue about the importance of free speech and how we should always err on its side when in doubt. Kamm (2007) and Posner (2002) argue that offensiveness helps the destruction of bad ideas. Mockery and derision are particularly potent tools with which to garner attention and persuade people how ludicrous some ideas may be. Offensive art and literature can spark ideas and discussion about taboo topics that had not been previously explored. An example is N.W.A’s F*** tha Police (1988). It was a controversial and potentially offensive song to many patriotic Americans, but sent a strong signal against police brutality and racial profiling. It renewed discussions about the limits of police power and inspired a new genre of songs with its title as a popular slogan. Another example is The Communist Manifesto (1848), which was wildly contentious when first published. Its criticism of capitalism and prediction that communism would eventually overthrow capitalism caused Marx to be exiled from Germany. However, the ideas presented have had huge influences on political thought and socialism worldwide, and are currently being taught in virtually all sociology classes. Had these been banned based on offence, we would not have been exposed to these controversial ideas, which culminated in the increased scrutiny of police power and the vanguard of radical Marxist ideology. Hence art and literature should not be banned on grounds of offence.


Mill (1978) presented a strong argument in favour of free speech. He stated that truth is valuable, and no matter how certain someone is that they know the truth, their judgement is still fallible. Hence we should allow the truth to emerge from the free marketplace of ideas. Even if something is true, it becomes a living truth if challenged, avoiding mental stagnation and conventionally accepted dead dogma. His argument is validated through an extremely offensive piece of literature. David Irving wrote a book alleging how the Holocaust was merely a conspiracy theory. This eventually became a high-profile libel lawsuit when Deborah Lipstadt referred to Irving as “one of the most dangerous spokespersons for Holocaust denial”. Even though Irving lost the case, the existence of his book and the lawsuit reinvigorated the search for Holocaust evidence. Historians went into far greater detail in their explanations, justifying to the layman how evidence proved the Holocaust happened, and even conducted further research to discover more conclusive proof. Here, it shows that counter-speech instead of outright censorship can deepen our quest for truth. In the words of Dershowitz (2006), “the best answer to bad speech is good speech”. Hence, we should not ban art and literature on grounds of offence.


Arguments Against Censorship



Additionally, there are other arguments against banning based on offence specifically for artists. It is argued that art and literature, above other forms of speech, should be immune from censorship because of the seriousness of their attempts to engage with the human condition and because of the literary or artistic qualities of their interpretations. Artistic works express and embody thoughts about what they depict. For example, art that superficially resembles pornography always interposes interpretation and imaginative engagement with the subject matter. Echoing Mill’s argument about dead dogma and our quest for truth, art presents serious and important challenges to received opinion. Restrictions on the production and enjoyment of art and literature are especially pernicious, because they curb the creativity of the people who keep our culture alive, self-reflective and self-critical.


Artistic or literary merit is another argument against the censorship of art and literature. For example, D.H. Lawrence’s novel Lady Chatterley was trialled in the U.K. in 1960 to deem if it could be banned under the Obscene Publications Act. Witnesses made a strong case for the book’s literary merits, arguing the detailed descriptions of adultery and use of profanity was not meant to arouse, offend or corrupt readers, but to raise questions about sexuality and societal pressures for monogamy. The novel furthermore presented pertinent critiques of society - the harms of the machine age, the importance attached to money, and the degree to which the mind had been stressed at the expense of the body. Most important was the message that the greatest relationship was that between a man and a woman in love, and there was no shame and nothing wrong, nothing unclean, nothing which anybody was not entitled to discuss. Therefore, the descriptions of sex were necessary and appropriate (Rolph, 1961). This demonstrates the literary merit present in the novel, which its censorship would deprive readers of. Another example is Robert Mapplethorpe’s 1990 exhibition The Perfect Moment. It showed sexually explicit images, including that of homosexual sadomasochism, but was intended to be seen beautiful formally with same qualities as classical art. The artistic merit of his pieces is widely recognised, seen in how his work is currently represented in twelve countries worldwide. The world would be artistically poorer had the exhibition not been shown. Hence, literary and artistic merit demonstrate that art and literature should not be banned merely on grounds of offence.


Pragmatic Concerns


There are multiple pragmatic challenges before banning art or literature on grounds of offence. Firstly, how do you define offence? If all banning requires is for a group of people to feel psychologically uncomfortable, this poses multiple dangers. It is something empirically unverifiable and subject to abuse. Secondly, who decides and how? If it were up to the government, surely this provides a dangerous tool for the authorities to ban literature critical of the authorities as “offensive”. Even though it might be argued that the power to ban lie with the public, it might very well end up being a tool for the government to manipulate.


Harms of Censorship



A third attack on banning on grounds of offence is the chilling effect it creates, also known as the “heckler’s veto”. Self-censorship will happen because someone in the audience might be offended. If an individual’s research into biological differences between races is deemed offensive by a community, this will stifle potential research into this crucial field. Other scientists would be reluctant to go anywhere even near this biological field of study for fear their research would similarly be censored. The same problem would happen when certain books, songs, or art are banned, discouraging others from attempting anything similar. This would have a chilling effect on art and literature. Mill (1978) believes censorship based on offence creates stunted individuals who never challenge the norm. In his own words, “everyone lives as under the eye of a hostile and dreaded censorship… it does not occur to them to have any inclination except what is customary”. Hence banning on grounds of offence should not be supported as it would greatly stifle creativity through creating a chilling effect.


Another argument against banning on grounds of offence is the high buy-in cost of art and literature. Feinberg (1984) argues that books should never be banned because the offensive material is easy to avoid. Most pieces of art are pieces to be actively visited in an art gallery or songs to be listened to. Most literature is books which have to be read or plays to be watched. This means it is easy to avoid art or literature one might potentially find offensive. Even if a song is played in a restaurant, for example, you have the right to leave the place. If you see the cover of a book you find offensive, it is possible to avert your eyes. It is not enough to say that the mere existence of a certain piece of art and literature causes sufficient offence to warrant its censorship. The more sensible solutions to potentially offensive material are its removal from the public sphere, increased trigger warnings and a higher buy-in cost. For example, sexually explicit images or posters that might create religious offence should not be shown in public places; advertisements for contentious books such as Mein Kampf should not be put up publicly; books should state clearly on the front cover if it has triggering material, such as the depiction of graphic paedophilia in Vladimir Nabokov’s Lolita, and that readers proceed with caution. Through this, offence caused through art and literature can largely be mitigated.


Caveats



This is not to say that art and literature cannot be banned under any circumstances. When it causes direct harm to individuals, it should be banned immediately. An example is the 1983 book Hit Man: A Technical Manual for Independent Contract Killers. It gave detailed guidelines on how to kill and dispose of bodies discreetly, and became an instruction manual for a real-life hitman who was hired to kill a family. This piece of literature caused direct, physical harm, and therefore should be banned. Another contentious example is the 1925 book Mein Kampf, written by Hitler while he was in prison. The state of Bavaria, which held its copyright, refused to allow its publishing in Germany until 2016 for fear of inspiring neo-Nazis. This rationale for banning the book is justified, because of the potential physical and political harm it might bring. However, if the government banned it because it might offend Jews, this should not be condoned. Although Mein Kampf might be triggering for those who have survived or had family perish in the Holocaust, no one is obliged to interact with or read the book. The offence created from knowing the book exists or from occasionally seeing its cover is not sufficient grounds to prevent many others from accessing the historical book.


Conclusion


“I despise what you say, but will defend to death your right to say it” (Tallentyre, 1906). This quote sums up succinctly the stance presented in this essay. It is difficult to prove that direct harm occurs through offending individuals, and the boundary of offence is also too broad and subject to abuse. Art and literature, with its specifically high buy-in cost compared to general speech, should not be banned unless direct harm can be proven. Even if offence makes individuals uncomfortable, outright censorship would be akin to taking a sledgehammer to crack a nut. We should protect free speech for people whose views we find offensive, irritating and with whom we strongly disagree - we cannot only protect the views we find sympathetic. As Malik (2007) rightly points out, “free speech for everyone but bigots is no free speech at all. The right to transgress against liberal orthodoxy is as important as the right to blaspheme against religious dogma or the right to challenge reactionary traditions”. The right to offend through art and literature is the most powerful tool in breaking through dogma, and we should not trample lightly on it.

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