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Offending Others: A Constitutionally Protected Right

free speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

— U.S. Constitution, First Amendment

Central to our way of life in the United States is the First Amendment of the Constitution: freedom of religion, freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom to petition the Government for redress of grievances.

In this post, I want to briefly talk about freedom of speech (or expression).

The Administrative Office of the U.S. Courts’ website defines and explains free speech this way:

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law…abridging freedom of speech.”

Freedom of speech includes the right:

  • Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
  • Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines, 393 U.S. 503 (1969).
  • To use certain offensive words and phrases to convey political messages. Cohen v. California, 403 U.S. 15 (1971).
  • To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo, 424 U.S. 1 (1976).
  • To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
  • To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

Freedom of speech does not include the right:

  • To incite imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444 (1969).
  • To make or distribute obscene materials. Roth v. United States, 354 U.S. 476 (1957).
  • To burn draft cards as an anti-war protest. United States v. O’Brien, 391 U.S. 367 (1968).
  • To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
  • Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
  • Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, 551 — U.S. — 398 (2007).

What about “hate” speech? Iowa State University answers the questions, “What is hate speech?” and “Is hate speech protected by the First Amendment?”:

The term “hate speech” is often misunderstood. “Hate speech” doesn’t have a legal definition under U.S. law, just as there is no legal definition for lewd speech, rude speech, unpatriotic speech, or other similar types of speech or expression that people might condemn. The term often refers to speech or expression that the listener believes denigrates, vilifies, humiliates, or demeans a person or persons on the basis of membership or perceived membership in a social group identified by attributes such as race, ethnicity, gender, sexual orientation, religion, or other protected status. Speech identified as hate speech may involve epithets and slurs, statements that promote malicious stereotypes, and speech denigrating or vilifying specific groups. Hate speech may also include nonverbal depictions and symbols.

In the United States, hate speech receives substantial protection under the First Amendment, based upon the idea that it is not the proper role of the government to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government’s role is to broadly protect individuals’ freedom of speech in an effort to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern even when such debate devolves into offensive or hateful speech that causes others to feel grief, anger, or fear.

….

However, it goes without saying that just because there is a First Amendment right to say something, doesn’t mean it should be said.

….

The First Amendment does not protect illegal conduct just because that conduct is motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, illegal conduct motivated by an individual’s hate for a particular protected group may be regulated by local, state, or federal law, and / or university policies. These laws are sometimes identified as “hate crimes.”

It is important to understand that the First Amendment restricts government from regulating speech (expression), though there are exceptions. The First Amendment does not apply to speech restrictions enacted by businesses and private citizens. Over the years, countless Evangelicals have said that I am violating their right to free speech by not letting them say whatever they want on this site. However, this blog is not connected with the government in any way. It is owned and operated by a private citizen: me. No one has the right to comment on this site unless I permit them to do so.

As a writer, I have the right to say what I want, regardless of whether people agree with me. We do have civil slander and defamation laws, but the bar is high for the prosecution of such offenses. Just because someone says something about you that you don’t like doesn’t mean he is slandering you.

The Ohio Bar has this to say about defamation:

Yes. Individuals, not just the media, can be held liable for defamation if they either publish (libel) or say (slander) something about someone that isn’t true and that person suffers harm as a result. If you defame a private individual, that person would have to be able to prove: 1) that you made a statement, reported as fact, to another person; 2) that the statement was false; 3) that the statement caused damage to that person; and 4) that you were negligent in making that statement. If you defame a public figure (such as a celebrity or member of government, for example), that person will have to prove: 1) that you made a statement to another person, reported as fact; 2) that the statement was false and caused damage; and 3) that you made the statement with actual malice-that is, with knowledge that the statement was false or with reckless disregard as to whether the statement was false or not. 

Remember, however, that you cannot be held liable for voicing your opinion, only for making untrue factual assertions.

Sadly, many people think they have a constitutional right not to be offended. This, however, is not true.

In 2022, Michael Bruce wrote:

Our right to be offensive is increasingly being seen as this pesky, little symptom of the First Amendment that must be either begrudgingly entertained or reluctantly accepted. People will casually write off being offensive as uncouth or unbecoming of a civilized society; they are, however, mistaken. The ones who are annoyed by our right to be offensive are the same ones who are likely to be ignorant of the fact that we are where we are today as result of individuals offending the orthodoxies of their day. They are also likely unaware of the consequences that limiting offensiveness can have.

One might ask themselves whether it’s worth being offensive in today’s era of wokeism, microaggressions, and cancel culture. The answer should be (and always will be) a resounding and resolute yes. Below are three reasons why we must embrace, and continue, our tradition of being offensive. 

First, we owe it to all of those who came before us and who sacrificed so much in the name of giving offense. We owe it to those who were mocked and ridiculed, booed and hissed at, beaten or imprisoned, exiled and ostracized, and hanged or burned at the stake all for simply offending the doctrines and dogmas of their day. Literal blood, sweat, and tears were given by countless generations so we could be where we are today. 

Secondly, giving offense has been the main driver of change over (at least) the last millennium. As pointed out above, our society has gotten to the point it is at today because individuals thumbed their noses at the norms and orthodoxies of their day.

….

Lastly, and perhaps most importantly, it is imperative that we continue our long tradition of offending contemporary orthodoxies because the only other alternative is clamping down or dismissing speech and expressions that are deemed offensive. The notion that any idea that is legitimately expressed can be silenced or banned on the grounds that it is merely “offensive” is censorship, and as one of our greatest founding fathers, Benjamin Franklin, put it, “Censorship is the handmaiden to tyranny.” So, if you are against tyranny, you have to be for offensiveness. 

As was stated at the start, the right to be offensive, which has been affirmed to us as citizens by various Supreme Court cases (RAV v. St. Paul, Texas v. Johnson, Snyder v. Phelps) is increasingly being portrayed as a thorn in the side of modern society; as if the only thing stopping us from achieving an idyllic society is our individual right to give offense. It is time that that misconception comes to an end and we start to view this inalienable right for what it really is: the heart and soul of the First Amendment. 

British writer Charles Hymas wrote earlier this year:

No religion has a right to be exempt from criticism, the security minister has said ahead of a crackdown on extremism.

Tom Tugendhat said no faith had a right not to be challenged amid concerns that some extremists have used intimidation and threats of violence against those perceived to have insulted Islam.

It follows the case of a teacher in Batley, West Yorks, who received death threats after showing pupils a cartoon of the Prophet Mohammed during a religious education lesson almost two years ago and has remained in hiding ever since as he fears for his life.

Mr Tugendhat declined to comment on individual cases but he said: “There is absolutely no right for any religion to be offended, if we accepted that then we’d still be Catholic.

“Every religion has the right to be challenged and there is no religion that has the right to be immune from that for any reason at all.”

Speaking on GB News, he added: “Anybody can challenge any article of any faith, it is absolutely fundamental, and there is no right to be immune from that.

“You know very well, because it’s the fundamental tenet of your job as a journalist to have freedom of speech.”

I primarily write about religion (particularly Evangelical Christianity) and politics — two subjects never spoken of in polite company. I know my writing offends some people, but that doesn’t mean I must stop doing so. The offended are free to respond in the comment section (as long as they abide by this site’s comment policy), send me an email or social media message, write a blog post or news article in response to my offensive writing, write a letter to the editor of the local newspaper decrying my writing, or any other constitutionally protected, legal action. The offended have numerous tools at their disposal to rebut my writing. They don’t, however, have any legal grounds to force me to remove something I have written from this site.

Bruce Gerencser, 66, lives in rural Northwest Ohio with his wife of 45 years. He and his wife have six grown children and thirteen grandchildren. Bruce pastored Evangelical churches for twenty-five years in Ohio, Texas, and Michigan. Bruce left the ministry in 2005, and in 2008 he left Christianity. Bruce is now a humanist and an atheist.

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11 Comments

  1. Avatar
    Barbara L. Jackson

    I have offended some people by saying the earth has a finite surface and humans cannot continue allowing our population to grow exponentially. This offends some religions when I say when we live on a finite planet people do not have a right to have more than 2 children per family. All that is necessary to figure this out is Algebra which I learned at the age of 12 or 13. I will continue to say this the rest of my life. I had no children because I do not trust religion or politics to fix the problem.

  2. Avatar
    Troy

    There’s a song by the “Clash” called “Know your rights”. My favorite is “You have the right to free speech! (But you’re not dumb enough to actually try it!)

    Interesting there are still blasphemy laws on the books (possibly waiting for a future Supreme Court to reinstate them like cobweb covered abortion laws). Especially in Muslim countries such laws are actively enforced. My question is why not let the offended God enforce these laws? Oh wait it was the theist that is offended…gotcha!

  3. Avatar
    Sage

    When I read what Michael Bruce has written, I read it as a veiled excuse to defend someones right to attack people like me.

    He says “The ones who are annoyed by our right to be offensive are the same ones who are likely to be ignorant of the fact that we are where we are today as result of individuals offending the orthodoxies of their day. They are also likely unaware of the consequences that limiting offensiveness can have.”

    And also says “One might ask themselves whether it’s worth being offensive in today’s era of wokeism, microaggressions, and cancel culture. The answer should be (and always will be) a resounding and resolute yes.”

    This is clearly a conservative viewpoint, and typically the right they are defending is a right to call people like me an abomination, a pervert, a groomer, a freak, a fag, a tranny, or any other insulting term you can think of. They define their right to be offensive as protecting them when they misgender people like me, or don’t want to serve or sell to people like me, or want to “fix” people like me.

    Often, defending the right to be offensive is just defending the right to be bigoted toward some minority group, simply because you do not like them. Michael Bruce dances around this point, defending his right to be offensive by portraying it as a weapon against government or other establishments that radically control what people can think or do. He even sites examples of Copernicus, suffragettes, Rosa Parks, and the 1950 underground gay movement that set the groundwork for Stonewall and all that grew from that moment.

    But these people were not being offensive, they were being radicals or revolutionaries. They weren’t offending people, they were fighting systems of oppression and control. They fought to change the system at great sacrifice and cost. In fact, most people in these groups worked hard to make sure they were NOT offensive toward people, because they wanted to focus to be on their cause, and not give others another excuse to attack, belittle, or destroy them and their effort.

    So, from my life experience, he just cleverly mixes radical action with the constitutional right to offend someone. This is typically the right the conservatives defend when they defend offensive speech. After all, they are only speaking the truth when they call Sage something other than what I am. It’s the same defense they use when they say I have no right to be in public and force them, as a result of my existence, to be included in my delusion or force my confusions on their kids. They are they same ones who claim I am trying to indoctrinate their children when I am simply existing, or explaining who I am, or educating about the reality of the variety of people in the world. The same people who want to eliminate all written reference to me, or place it behind the desk in the adults only section with those vulgar sex and nudie books.

    Ironically, it may be that Michael Bruce is standing on the side that Copernicus, suffragettes, Rosa Parks and our gay forefathers fought against. Conservatives aren’t exactly known for fighting for radical change, but are usually are the ones fighting against radical change and using as much offense as they can generate to fight that change.

    But, I do agree with you Bruce. You are right that you are able to write anything you wish regardless of who it may offend. However, the difference is that you attack the systems, and people take offense at your attack on systems they support or literally worship. That is a perfectly acceptable and needed form of speech.

    The challenge comes when offensive speech is directed at minority groups or individuals in those groups, because that speech is always intended to create fear and concern and maintain control over that group. It is a thin line between attacking systems and being offensive toward others. Conservatives are very good at crossing that line, and lumping all offensiveness into a fight against “oppression”, when the “oppression” they feel is having their long held values, and the powerful systems they are a part of, challenged by the true radicals.

  4. Avatar
    John S.

    I think there is a fine line between policing offensive speech and viewpoint discrimination. While I understand the point that Michael Bruce’s article seems to be a defense for people who want to use vulgar and inappropriate terms for people they don’t care for, I also fear whoever would be put in charge of a hypothetical “hate speech” office to determine who needs a trip to East Germany to get their thinking corrected 1984-style. The problem in my mind would become the subjective standard of what constitutes “hate speech”, as well as the transitory nature of our political system (imagine a Trump, Jr. appointee). Everyone in response would just look to the ground and not say anything, lest they may “offend” and then subsequently become un-personed.

    This is not to say I support people who want to call Sage or anyone else a derogatory term. I think the best remedy for those individuals is for decent folks to use their freedom of speech to confront them and also to expose their behavior. At the same time, I defend someone’s right to express their viewpoint, even if I find it disagreeable. These are two different things that too often are treated as the same. That’s where I veer from the far left many time, that you can’t even express a viewpoint that isn’t 100% in lock step with the “woke” for lack of a better term viewpoint on all social issues. Thing is even the woke are wrong sometimes. As an American I should be able to say that, or as I often do (to the chagrin of my wife) take a “both sides have their wrong closet” view. Yes, some sides more than others, but neither is perfect.

    I agree with Sage that resorting to ad hominem attacks or using an overly confrontational response to someone who is merely expressing a disagreeable viewpoint is often used as a way to stifle someone’s freedom to express their viewpoint. I don’t believe this is something done only by those on the far right, though.

    • Avatar
      Sage

      John,

      I understand what you are saying about the debate of competing viewpoints, but it becomes quite a bit more nuanced when dealing with bias or outright bigotry against minority groups.

      You said “That’s where I veer from the far left many time, that you can’t even express a viewpoint that isn’t 100% in lock step with the “woke” for lack of a better term viewpoint on all social issues. Thing is even the woke are wrong sometimes. As an American I should be able to say that, or as I often do (to the chagrin of my wife) take a “both sides have their wrong closet” view.”

      Yes, anyone on the political spectrum can be wrong, but when it comes to the rights of minority groups, and the bigotry they face, what is there to debate? More often than not, the right side of the conservative spectrum is aggressively defending their right to say anything they want, to offend anyone they desire, in any way they desire and treat their hated minority in any way they want. As I said earlier, this is how I read the post by Michael Bruce.

      The best example I can give is from my personal life as a non-binary person. When I explain the biases I face and why it is offensive, some of the more “middle of the road” people respond with some form of “Well, there are 2 sides to everything. There needs to be room for debate.” Really??? What agreement do they expect we can come to about my existence?? Are we really supposed to debate my right to exist, be visible, and simply live my life? Because that is the battle I face when I deal with someones freedom to be offensive, and say whatever they desire about me. These are the same people that go to great lengths in schools, business, government, gyms, bathrooms. libraries -wherever – to make sure I am not allowed to be seen or even discussed as a normal human being.

      I may also tell them – sure,, lets debate my existence. Feel free to start anytime. Where will you allow me to exist? Can I at least go outside? Are stores ok to visit, or maybe only some stores? Is there any bathroom I can use in public? Can I at least walk down the street? Can I , maybe, go outside late a night when no one is out? Am I allowed to sit on a park bench and enjoy my lunch? Do I need to make sure I don’t walk in front of your house so your kids see me and you have to answer questions? Maybe you prefer I go through conversion therapy to be fixed from my delusions???

      There isn’t really a debate to be had on this topic, or the rights of other minority groups. Yet people seem to want to find a common ground between the bigots and the victims these bigots attack. I just don’t understand what this common ground it supposed to be?

      This is exactly what the “right to offend” group wants. They want to keep offending, and they want the good “middle of the road” people to defend them with the “two sides to every argument” defense. It gives them cover and support to keep up their attack.

      And that “right to offend” has a purpose. It is to get other people to confront, belittle, and even attack the people they hate. Then the vocal public voice that says offensive things about me, they can stand on principal, on the sidelines, while their minions do the dirty work of getting rid of me. After all, the public voice was just using their “rights.” And these attacks often are not seen or understood by the “middle of the road” people. Many of these people will blame me for being too quick to offend, and tell me I need to find a way to get along with them!! WTF????

      Yes, you can debate and negotiate on budgets or support of Israel or many other topics. But there is no room to negotiate my right to be here, and live. I will always think my right to exist supersedes someone else’s right to be offensive. The problem is, I will never be equal as long as anyone of influence has the right to attack me and say horrid things about me without consequence.

      • Avatar
        John S.

        Very good points Sage. I certainly don’t want to be an enabler to those who want to make your life difficult. And yes most definitely, I think the nuance and difficulty comes down to, “Why should I have to defend my rights to do basic things like everyone else?”

        However uncomfortable it may be, I still believe in the freedom to exchange thoughts and ideas. Many of those definitely come across as ridiculous, but the person expressing them may not necessarily be coming from a point of “hate” but fear, or because of something that has been drilled into their head from childhood. And as uncomfortable as it is, in my view only, the way to dispel this fear is to bring it out in the open and discuss the issue fully, including the very good points you made. The bigots will not care, but those who may traditionally listen to them may no longer accept their point of view once they have discovered what they fear is not actually true, and is actually harming someone who has the same emotions and feelings they have.

        I think your way of responding to me was very good, if I may say so. I did not feel attacked, but simply responded to. And your points about basic activities of daily living being debated by folks who don’t have to deal with the consequences gave me some pause for thought.

        I realize my position on this is imperfect, but I don’t know how else to feel on this topic. I fear a society where people cannot express themselves, even if what they say is problematic (like the example I gave of East Germany). But I also think those folks shouldn’t be shielded from public ridicule by the first amendment either.

  5. Avatar
    velovixen

    Like Sage, I have been falsely accused of all manner of sexual crimes by folks who simply can’t abide the fact that I don’t fit into traditional gender roles and sexualities. The problem, as John points out, is that they seem not to see any difference between an ad hominem attack and a critique of an idea or system. Attacking a person’s character, however wrongly, is, for them, the same as working for meaningful change.

    The funny thing, for me, is that I have been attacked (or simply shunned or stigmatized) by so-called woke people nearly as often as by reactionaries because too many on the left, too many of the “woke,” are just as rigid in their orthodoxies as religious fundamentalists. Hey, I’ve been excoriated by a gender studies professor and members of the LGBTQ community for being not “queer” enough (I am accused of doing too much to look and act like a “traditional” woman), for “going too far” or for allegedly trying to usurp what “biological” women have been fighting for (e.g., jobs and respect).

    • Avatar
      John S.

      Thank you Velovixen. I have personally learned a great deal reading and posting on Bruce’s page. It has served to make me more introspective of my own attitudes and feelings towards others in general. Even though I have viewpoints that may differ from many others including Bruce himself, I have never felt attacked or demeaned by anyone on this page.

  6. Avatar
    missimontana

    Words are powerful. The ugly words are meant to dehumanize the people the speaker hates. It’s the same as misgendering; it’s not expressing an offensive opinion, it’s refusing to accept a person’s existence. I may believe you are a purple hippo, and I can say that is my opinion. It doesn’t make it true.
    Sage, Velovixen, you both make good points. Bigots often argue that their hateful words and actions are “just opinions”, so don’t get so upset. Words move people to action, and a gifted speaker can be a blessing or a curse. Look at the difference between MLK and Hitler. Both are offensive to many people. Yet, can anyone say with a straight face that Hitler’s views deserve the same treatment as King’s? One wanted equal rights for all, the other wanted death for anyone not conforming to his rigid view of the perfect human.
    Being offensive just for the sake of offense solves nothing. Being offensive by dehumanizing others isn’t up for debate. Yes, bigots have a right to speak under the U.S. Constitution. Do they have a right to demand the removal of rights from their fellow citizens? Do they have the right to demand that we all conform to their worldview? No.

  7. Avatar
    ObstacleChick

    There’s a lot of good discussion here in the comments, and a lot of great points to ponder. As with most concepts, free speech is a complex topic with a lot of ramifications.

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