Should Offensive Speech Be Subject to Regulation - Literature review Example

Should offensive speech be subject to regulation? Student’s Name: Course Code: Lecture’s Name: Date of Submission: Should offensive speech be subject to regulation? Introduction Brugger (2003, p.2) observes that there has been contestation on how legal systems should deal with matters of ‘offensive’ speech. The concern within this dilemma is on whether to regulate or not to regulate. Globally, there are two leading divergent views on the issue under consideration. The first discourse is on the need not to regulate as informed by works on ‘own liberty’, deontological & democracy domain as practiced in countries such as United States of America. On the other hand, there is the view that proposes need for regulation that is rooted on rights v. responsibility debate. Such propositions are mostly enshrined in signatories of European council and Canada. Owing to such realisation in regard to divergent standpoints on regulation or non-regulation of offensive speech, the paper sought to establish if offensive speech should be regulated or not. Viewpoints Against Regulation The anti regulation supporters anchor their argument on free speech concept. Free speech is premised on works of John Stuart Mill on ‘Own Liberty’ that seeks to protect individuals from ‘tyranny of the majority & government authority’. To support his arguments, mills note that everyone is not infallible. Secondly, he notes that, even in a wrong statement, there might be certain truth in it. Thirdly, ideas are best tested against so as to discern the truth and lastly, the realisation that even if a statement is true, it strength is weakened is the owner does not engage in a debate. In this regard, the whole belief is that speech is equivalent to though and thus, ‘a highly individualised & private and which ought not to be subject to regulation. The same is asserted within the deontological & democracy domain that appreciates everyone has a right to free speech and role to criticise government, self determination by engaging in governance discourse (Gelber, 2002, p.108-110). An interesting case scenario for discussion in affirming the fact that ‘offensive’ speech should not be regulated is with the context of learning institutions such as universities and the principle anchoring free speech- market place of ideas. Higher institutions of learning are places for simulation and generation of ideas. Hence, in pursuit of such aspirations, hatred and intolerances within the larger community might emerge. The urge to protect academic institutions as market places of ideas within the context of academic freedom is affirmed by Justice Brennan in the case of Keyishian v. Board of Regents. He notes that “First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom”. The same argument can be extended into public domain where the belief within this precinct is that ‘offensive speech is answered by more speech’ (Abrams v. United States 1919 cited in Henry, 2009, p.236). The whole discourse points out that citizenry have the ability to sieve through ideals and substantively pick what resonate while discarding those that are not up to par. In this regard, the non-plausibility of ‘offensive’ speech can be rebuffed through falsifying statements that endorse positive values within the public discourse as opposed to regulation (Henry, 2009, p.236). Indeed, the call for non –regulation is hastened by the fact that the term ‘offensive’ speech is broad and is a subject of a recipient. In this regard, the question that arises is whether a criminal justice system can have a limit to determine what is offensive and what is not offensive (Haupt, 2005, p.305)? The no proponents who are against regulation of ‘offensive’ speech observes that in most context, an attempt of regulating ‘offensive’ speech normally results into context and viewpoint restriction as opposed to pragmatic reason. This results into breach of freedom of speech which is guaranteed by most constitutions as it leads into a scenario where one perspective is declared right while the other one is silenced as it is deemed wrong (Kagan, 1993, p.873 & 875). This should not be the case as the initial intended need to create a balance is lost. In a nutshell, the argument fronted is that regulations should aim at attaining viewpoint neutrality. Nevertheless, attainment of this neutrality is not an easy process as most legislations end up in castigating one group. Haupt (2005, p.305) observe that the concern of opponents of regulating speech posits that the intended beneficiaries will equally be limited of their own right to free speech. This is rooted on the fact that most regulations advanced by authorities are antagonistic in nature instead of being mutually reinforcing. The indivisibility trait of freedom of speech proscribes or disallows content rooted speech regulation (Haupt, 2005, p.312). However, Haupt (2005, p.306) observes that this has not been the case as exemplified within the Indianapolis ordinance which was anchored on the legal theoretical discourse fronted by MacKinnon and Dworkin model of legislation. Proponents for Regulation The counter proponents offered by those for regulation of ‘offensive’ speech deride the opponents of regulation by stating that there is no right without responsibility and that the state has the right to engage in a proactive role rather than reactive role in the guise of freedom of speech (Arino, 2007, p.120 & 121). For instance, Fong (2003, p.147) while using a case example of online media indicates that various elements within the society have exploited the performance gaps in terms of regulation of the said platform to post offensive materials that are derogatory and able to cause psychological harm and political instability. Indeed, Haupt (2005, p.307) affirms this observation by noting that ‘offensive’ speech has a massive impact on psychosocial well being of those it is directed to and it can be a cause of concern for national security in terms of integration. Proponents aligning themselves to this perspective such as Council of Europe as opposed to America, stresses the fact that those who are afflicted as a result of offensive speech such as hate speech should receive protection so as to guarantee dignity and equality. In a nutshell, the whole processes are geared towards cushioning those in the receiving end as opposed to speech used to attack them. This in end result ensures social order where there is balance between rights and responsibility. Take a case example of Germany which before world war two had nasty experience as result of a government that propagated hate speech in large scale (Brugger, 2003, p.2). By not regulating offensive speeches, it can be contextually urged that this is an extension of certain negative ills against other minority groups as speech constitute part of conduct in criminal & vice engagements such as racism, whiteness, sexism and ethnic cleansing. Within the context of offensive speech issues such hate propaganda, racial profiling and discrimination emerges. However, there is the realisation that hate propaganda can lead to insecurity scare such as genocide. Offensive speech such as hate statements has the opportunity to poison the minds of recipients. A case example that points to such argument is the Rwandan experience where one of the defendants was accused of direct and public incitement to commit genocide (Timmermann, 2005, p.263 Orentlicher, 2005, p.2). However, the question is that all these speeches fell within offensive speech and if they would have been regulated such experience would have not occurred. Discussion The two divergent views present a valid claim. Both the antagonist and protagonist view have a real concern in relation to not regulation or to regulate offensive speech. The proposition by those against regulation is anchored on ‘own liberty’ and democratisation as enshrined in most constitutional law. Indeed, a country cannot assume that they can regulate offensive speech. Because regulation of offensive speech alone is not an answer to the attitude one might harbour towards another individual or another grouping. As such allowing freedom of expression/ speech is an important avenue of allowing individuals to ventilate their feelings and equally elicit reaction from the other affected party and thus, building a national discourse on what the contention is and the prospective solution to the findings as result of such discourse. In a nutshell, regulation is like burying ones head into the sand under sweeping dirt under the carpet. While the call for regulation is premised on the fact there is need to create a balance between ones rights and others by proposing that rights come with responsibility- which is true. The mere call for balance between rights and responsibility is not enough. According to Kagan (1993, p.875) Such concern is affirmed by Justice Holmes in the case of Schenck v. United States cited in Cohen (2007, p.237) who notes that most regulations are ‘mere presumption” or ‘political hyperbole’ that do not contain ‘true threat’. Moreover, hate speech is not unidirectional as always fronted within the domain of regulations where minority are the depicted to be on the receiving end. Within a democratic space, even the offended have the platform to engage in counter argument in a civil manner to respond to the speech directed to them. Therefore, the proposition of the paper is that offensive speech should not be regulated. Conclusion The focus of the paper was to establish whether offensive speech should be subjected to regulation or not. Then paper reviewed the various stand points in relation to those in support and those against. Those against anchor their rationale on deontological and constitution rule of law that expression should not be limited. On the other hand, those supporting proposes that there can be no absolute rights without responsibilities. However, , the paper argues that offensive speech should not be regulated owing to the indivisibility of right of speech and as result of the fact regulations impact on both ends. References Arino, M. (2007). Content regulation and new media: A case study of online video portals. Communications and Strategies, 66, 115. Brugger, W. (2003). The Treatment of Hate Speech in German Constitutional Law (Part II). German Law Journal, 4(1), 2. Cohen, H. (2007, April). Freedom of speech and press: exceptions to the First Amendment. LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE. Fong, M. W. L. In the virtual world in Khosrow-pour, M. ed. (2003). Information technology and organization: trends, issues, challenges and solutions. Hershey, PA: Idea Group Publishing . Gelber, K. (2002). Free Speech, Hate Speech and an Australian Bill of Rights. Drawing Board: An Australian Review of Public Affairs, 2(3), 107-118. Haupt, C. E. (2005). Regulating Hate Speech-Damned if You Do and Damned if You Don't: Lessons Learned from Comparing the German and US Approaches. BU Int'l LJ, 23, 299. Henry, J. S. (2009). Beyond free speech: novel approaches to hate on the Internet in the United States. Information & Communications Technology Law, 18(2), 235-251. Kagan, E. (1993). Regulation of Hate Speech and Pornography After RAV. U. Chi. L. Rev., 60, 873. Orentlicher, D. F. (2005). Criminalizing Hate Speech: A Comment on the ICTR’s Judgment in The Prosecutor v. Nahimana, et al. Human Rights Brief, 13(1), 1. Timmermann, W. K. (2005). The Relationship between Hate Propaganda and Incitement to Genocide: A New Trend in International Law Towards Criminalization of Hate Propaganda?. Leiden Journal of International Law, 18(2), 257-282. Read More

The urge to protect academic institutions as market places of ideas within the context of academic freedom is affirmed by Justice Brennan in the case of Keyishian v. Board of Regents. He notes that “First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom”. The same argument can be extended into public domain where the belief within this precinct is that ‘offensive speech is answered by more speech’ (Abrams v. United States 1919 cited in Henry, 2009, p.236).

The whole discourse points out that citizenry have the ability to sieve through ideals and substantively pick what resonate while discarding those that are not up to par. In this regard, the non-plausibility of ‘offensive’ speech can be rebuffed through falsifying statements that endorse positive values within the public discourse as opposed to regulation (Henry, 2009, p.236). Indeed, the call for non –regulation is hastened by the fact that the term ‘offensive’ speech is broad and is a subject of a recipient.

In this regard, the question that arises is whether a criminal justice system can have a limit to determine what is offensive and what is not offensive (Haupt, 2005, p.305)? The no proponents who are against regulation of ‘offensive’ speech observes that in most context, an attempt of regulating ‘offensive’ speech normally results into context and viewpoint restriction as opposed to pragmatic reason. This results into breach of freedom of speech which is guaranteed by most constitutions as it leads into a scenario where one perspective is declared right while the other one is silenced as it is deemed wrong (Kagan, 1993, p.

873 & 875). This should not be the case as the initial intended need to create a balance is lost. In a nutshell, the argument fronted is that regulations should aim at attaining viewpoint neutrality. Nevertheless, attainment of this neutrality is not an easy process as most legislations end up in castigating one group. Haupt (2005, p.305) observe that the concern of opponents of regulating speech posits that the intended beneficiaries will equally be limited of their own right to free speech.

This is rooted on the fact that most regulations advanced by authorities are antagonistic in nature instead of being mutually reinforcing. The indivisibility trait of freedom of speech proscribes or disallows content rooted speech regulation (Haupt, 2005, p.312). However, Haupt (2005, p.306) observes that this has not been the case as exemplified within the Indianapolis ordinance which was anchored on the legal theoretical discourse fronted by MacKinnon and Dworkin model of legislation. Proponents for Regulation The counter proponents offered by those for regulation of ‘offensive’ speech deride the opponents of regulation by stating that there is no right without responsibility and that the state has the right to engage in a proactive role rather than reactive role in the guise of freedom of speech (Arino, 2007, p.

120 & 121). For instance, Fong (2003, p.147) while using a case example of online media indicates that various elements within the society have exploited the performance gaps in terms of regulation of the said platform to post offensive materials that are derogatory and able to cause psychological harm and political instability. Indeed, Haupt (2005, p.307) affirms this observation by noting that ‘offensive’ speech has a massive impact on psychosocial well being of those it is directed to and it can be a cause of concern for national security in terms of integration.

Proponents aligning themselves to this perspective such as Council of Europe as opposed to America, stresses the fact that those who are afflicted as a result of offensive speech such as hate speech should receive protection so as to guarantee dignity and equality. In a nutshell, the whole processes are geared towards cushioning those in the receiving end as opposed to speech used to attack them. This in end result ensures social order where there is balance between rights and responsibility.

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