Offense
In some cases, I have heard people raise a moral objection to what somebody else has said, and claim the right to demand a law or justification in filing a civil suit, that the statement “offends me”, as if that alone is sufficient to justify action on the part of the legislature or courts.
They are mistaken.
When dealing with offensive words and symbols, the tools of the state are the wrong tools for the job. They are too unwieldy to do the job well — like trying to cut diamonds with a wrecking ball — and they are likely to do more harm than good.
I am not saying that offense cannot be sufficient to justify legal action. In a city, if an individual were to place something in his yard that smelled like a large pile of rotting carcasses, the neighbors would be within their rights to ask the state to remove this offensive stench. The agent who wraps his neighbors’ property in an envelope of stench does no less harm than the vandal, and is legitimately subject to legal as well as moral sanction. Loud noise — determined by its volume, independent of its content — is another area where people have a right to seek and to expect the state to intervene.
This may be thought to be analogous to the case of a person who puts up an offensive word or symbol. The neighbor who flies a large Nazi or Confederate flag conspicuously on his house is as likely to affect his neighbor no less than the person with the corpse-like stench coming from his yard or who plays his stereo with the volume of a live rock concert. There may be temptation to use these similarities to argue for state intervention against the individual, to prohibit his actions by law.
The Unique Qualities of Offensive Speech and Acts
However, when we use the state to prohibit people from expressing a view, not based on its volume, but based on its content, we risk doing more harm than good.
To begin with, such prohibitions establish a power that can used as easily for evil as for good. Just as the Jew may be offended by the sight of a Nazi flag in his neighborhood. The Nazi may be offended by the sight of Jewish symbols in his neighborhood. If it is permissible for the Jew to demand that the state remove the Nazi symbols, the Nazi would then have the right, if he can gain the support of his neighbors (or at least the passive acceptance of a sufficiently large group that simply does not care enough to get involved) to gain control o the government, demand the removal of the Jewish symbols.
Catholics in the 1600s were offended by the claim that the Earth was not the center of the solar system. They felt justified to turn the powers of the state against those who would express this belief. The Church burned Giordano Bruno (1548-1600) alive for the crime of saying that the Earth orbits the Sun. It took similar offense to those who denied the divinity of Jesus, and even those who agreed that Jesus was divine but who disagreed on how the Bible was to be interpreted.
No doubt, the Catholics after Martin Luther’s reformation started, were offended by the sight of Lutheran symbols in their midst, as the Lutherans were offended by the signs and symbols of Catholicism. Each turned to the state to have these offensive signs and symbols removed. The result was a 30-Years War where it was not uncommon by those offended by the other's religion to herd whole villages into the local church and set fire to it.
Freedom of speech means nothing if not the right to express ideas and attitudes that may be offensive to others. Nobody needs to place any value in a right to express ideas that everybody else already agrees with. There is scarcely a need to say that the expression of such ideas needs protection. It is the unpopular idea, the idea that people are prone to react to with violence and disgust, that is precisely the ideas that a freedom of speech is supposed to make possible.
Countering Offensive Speech and Acts
The legitimate way to respond to offensive speech and acts is not to turn the mechanisms of the state against those who express their view. It is to explain what is wrong with the view. If the Catholics and Lutherans had limited themselves to expressing their views from the pulpit, explaining the virtues of their own beliefs and the explaining the errors of their opposition, the debate would have been no less heated. However, a war of words and symbols alone would not generated nearly as much collateral damage.
A good way to limit these disputes to a war of words instead of a war of guns is by prohibiting participants on both sides from drawing weapons. This includes a prohibition on drawing the weapons of the state to silence their opponents, regardless of how much offense they may feel when they see or hear their opponents' beliefs expressed.
When the neighbor prominently flies his Nazi flag, this presents others with an opportunity to discuss the subject. They can explain, particularly to the children, what the symbol stands for and, more importantly, why people devoted to those ideas are worthy of moral contempt. This helps to prevent important ideas from getting lost on the dusty shelves of history because, as has so often been reported, as soon as history is forgotten, there is a risk that it will be repeated.
If we banish the symbols in any other way — if we use the power of the state to force them to be removed from the public view — then we risk being unarmed when a similar doctrine comes along. By confronting such a horrendous idea, we already have the tools in our mind for recognizing and confronting anything that can be found to be similar — found to be like these offensive ideas. If we have buried them to the point that we no longer think about them because they are no longer present for us to think about, then we will not have the tools readily available for confronting any similar evil.
More importantly, at least some ideas that offend people are not wrong. The error rests not with the ideas being expressed, but in those who are offended by those ideas. Some find the idea of racial equality offensive. Some find the idea of two men or two women having sex offensive. If we say that offense is a sufficient justification for prohibiting the expression of an idea, then we risk prohibiting the expression of truth and virtue in order to prevent offense to those who are bigoted and ignorant.
The test for determining one from another is whether those who are offended can come up with any sort of rational and reasonable criticism of that which offends them. The response is to present the case for offense to all who will listen.
If the case for offense is sound, it is hoped that others will find the argument convincing and learn not to engage in the offensive conduct themselves, and to share in the private (non-government) condemnation of those who engage in offensive speech and acts. If the case for offense is not sound, then the community is not served in fact by a policy that allows those who suffer an unjustifiable offense to place the burden on those who offend them — for example, by placing the burden on interracial couples not to marry and have mixed-breed children, or placing the burden on Jews to accept Jesus as their savior.
Summary
So, says something, or shows a sign or a symbol that one finds offensive, it is best to keep the courts out of it, and to express, in whatever means possible, to whomever will listen, why it is offensive. On these issues, we are well advised to keep the tools of the state under lock and key, and to allow neither combatant access to them. Failure to do so invites far more harm than the words and symbols alone could ever cause.