The Right to Offend and the Danger of Disordered Thinking

The Right to Offend and
the Danger of Disordered Thinking

By

Leonard Zwelling

         In the wake of the attack in Garland, Texas that, fortunately,
only left the putatively ISIS-inspired gunmen dead, much has been made of the
right to free speech, the gathering the gunmen sought to disrupt, and whether
or not the gathering qualifies as “hate speech.”

         It seems to me that hate speech is in the eye of the
beholder and like a hate crime is a very muddled concept. Either you can say
something or do something or you can’t. The motivations are pretty irrelevant.
Thus, I don’t like the concept of a hate crime leading to greater penalties for
it implies the ability of a jury to get into the head of someone else when a
crime is being committed and punishment is being meted out. Punish the criminal
for the crime, not for what was on his or her mind at the time the crime was
committed. I believe the additional penalties for “hate crimes” represent a
very dangerous concept and it is faulty in every way.

         Similarly, either people are free to say what they please or
they aren’t. If they are, then they are and that’s the end of it unless you
want to argue back, which is also your right. Whether or not the organizers of
the meeting in Garland that led to the attack (we presume, but it is hard to
know because the gunmen are dead) precipitated it by exercising their freedom
of expression is of no consequence. Having the meeting could have been foolish
or stupid. Neither of these are crimes yet and thank goodness they aren’t or
the prison over-population crisis would be far worse than it is.

         I think you get my drift.

         One of the great American rights is the right to offend. It
isn’t stated as such in the Constitution or the Bill of Rights, but it is
deeply engrained in our national psyche and it should be.

The
art on display in Garland may have been very offensive to Muslims. That is
unfortunate but no crime. Likewise, racial epithets, anti-Semitic rhetoric and
the latest garbage from a host of skinhead organizations may be offensive, but
those saying these things have the right to their opinions and the right to
express them. Where the problem starts is that when neo-Nazis spew anti-Semitic
garbage, a group of rabbis does not descend on the nearest right wing cell and
start shooting. In the case of the anti-Muslim speech (or cartooning), it does
seem to engender violence. Even that should not deter us from protecting the
rights of the offenders to offend.

Furthermore,
it in no way should put the onus of “being careful” on the offenders for fear
of inciting violence.

         If anti-Muslim free expression is unique in its incitement
of violent reprisals, then THAT is a problem and it just well may be. Where
many groups have been disparaged over the years in America, few have resorted
to violence against those exercising their right to offend who are doing the
disparaging. Those groups that do resort to violence should be dealt with just
as the Garland security forces did with the two gunmen.

         The right to offend is a great American right that we
cherish when employed by George Carlin, Don Rickles, Lewis Black or Jackie
Mason but apparently less so when the target is the Muslim deity. Too bad. I
too often find the results of this exercise of free speech to be offensive, but
I find those trying to silence the offenders more so.  Just because the reaction to speech might be
violent, does not equate it to shouting “fire” in a crowded theater and if it
does, then those who would silence the offenders have won.

Likewise,
the concept of hate crime needs to be revisited. As offensive as homophobic
language or racism may be, neither ought to be reasons to increase sentences on
convicted criminals. Someone who murders in a premeditated fashion with or without
prejudice, ought to receive the same punishment as any other premeditated
killer. Who is anyone to really know what was in the mind of a criminal at the
time a crime was committed? Punish the crime, not the mindset. If the
prosecution has sufficient evidence to prove premeditation, it will use it. I
am less sanguine about a district attorney being sure a crime was a hate crime
and even if it was, it was either premeditated or not and that should be the
determinant of the criminal accusation and the punishment if guilt is the
verdict.

         If it is believed by our legislatures, that Muslims are a
uniquely privileged group who may not be allowed to be offended for fear they might
retaliate with guns, let the elected officials say so with a law making cartoon
contests about the Prophet Muhammad illegal. Until then, Muslims, Jews,
African-Americans and the rest of us will have to be content knowing that
foolish people will say stupid things that will offend us, and then we will go
to the mat to defend their right to say these things again.

         It’s the American way.

1 thought on “The Right to Offend and the Danger of Disordered Thinking”

  1. COMMENT FROM A FRIEND OF LONG STANDING:

    Hi len,
    I think you make a good point – but not a great point – in your recent blog about hateful speech.
    Freedom of speech is certainly wonderful.
    It should have very broad latitude.
    Very broad..
    but limitless as you seem to imply [ because you can’t get into the head of someone else ] is self-evidently wrong.
    We can define limits that I think most would agree are defensible, ethical, and definable.
    For example: [ remember the Penn and Teller joke ? ] you can’t shout fire in a theatre.
    For example: filming and distributing child pornography.
    Yes, yes, I hear you saying pornography is in the eye of the beholder but there are lines….snuff movies, kiddy porn etc.
    And, a jury of your peers can and should ‘’get into your head’’ or at least try to in order to tell the difference between
    premeditated and not – manslaughter is certainly not first degree murder.
    And, a jury of your peers can reasonably ask whether some speech:” let’s go lynch that n…… NOW ’’ is both hateful and inciting.
    Of course they could get it wrong but that isn’t much of a basis for an argument.
    If you believe that you shouldn’t attempt something because you
    could get it wrong then in effect you would have no criminal justice system.
    The possibility for error alone is not a reason to prohibit something.
    To say that values are relative in society can leave you with no values or standards if you aren’t careful.

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