Subjectivity Is Slippier Than Any Slope

Proposed First Amendment exceptions — that is, proposals to limit free speech — tend to fall into one of two buckets in America: arguments by analogy and proposals for new categorical exceptions.

The first bucket — the argument by analogy — is the most common. You see it in cases like that of Fred Phelps and his clan, in which censorship advocates argue that hateful protest signs at soldiers' funerals are, by analogy, like established First Amendment exceptions like fighting words or invasion of privacy or defamation.

The second bucket involves an attempt to create new exceptions. You see it in cases like U.S. v. Stephens, in which the government argued, in effect, "we already have a categorical exception to the First Amendment for child pornography; the Supreme Court should add a categorical exception for videos of people being mean to animals."

Both of these arguments are susceptible to, and commonly countered with, the slippery slope argument. "If you extend the fighting words or defamation exemptions by analogy to Phelps' funeral protests, then next you'll be extending the exemptions to anti-war protests at soldiers' funerals," the argument goes. "If you create a new categorical exemption for being mean to live animals, then next they'll want a new categorical exemption for being mean to dead animals," the argument goes. (As if we'd ever pass laws about being mean to dead animals!)

The slippery slope argument is not inherently or automatically right in every case, but it's an important cautionary metaphor premised on an understanding of how precedent works and how legal rules develop in America. The persuasiveness of the argument depends on whether we can imagine hypothetical future litigants and prosecutors and judges and jurors making decisions to extend exceptions to free speech in particular warned-of ways.

But there's a third bucket of free speech exceptions — and it's slippier than the slippery slope. The third bucket contains arguments that speech should be illegal when it offends or upsets people. The slippery slope metaphor is inadequate to capture the danger of the contents of this bucket, because you don't need to posit the subjective decisions of future litigants and judges and prosecutors and jurors. The subjectivity is already build in to the model.

I'm referring to anti-blasphemy and related hate-speech laws, the current darling of United Nations leaders, certain law professors, and detractors of American First Amendment exceptionalism.

Anti-blasphemy laws and racial-offense laws, at least as described by most proponents, rely for justification on the subjective reactions of listeners. As an NYU student puts it in decrying a subway advertisement using the term "savages":

If any group is targeted by hate speech, its dignity and its right to self-respect is not being protected by national law.

But dignity and self-respect are things in the control of the targets of hateful speech, not the people who utter hateful speech. The belief that particular words impair my dignity or self-respect is a subjective one in my own control; I can decide that some insults harm me and some do not as I like, perhaps based on my political views of the insulter. The same goes for the words of the Secretary-General of the United Nations:

"Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose," Ban told a news conference.

"When some people use this freedom of expression to provoke or humiliate some others' values and beliefs, then this cannot be protected in such a way."

Common justice and common purpose are subjective. Humiliation — particularly humiliation of "values and believes" — is subjective; humiliation only operates with the consent of the humiliated. Many are framing anti-blasphemy laws as limitation on deliberately giving offense; but offense is entirely subjective:

The head of a leading Islamic organization Saturday called for a global ban on offending the character of the Prophet Muhammad, saying that it should be equated with hate speech.

Violence in response to offense is also subjective — it occurs based on the subjective decisions and political calculations of the violent and amoral.

This discussion takes place not in a vacuum, but in a specific international context. The context is one in which a group unilaterally decrees that any depiction of an important historical figure is off-limits. The context is one in which illiterate children can be accused of blasphemy, and their lives imperiled, for tearing up trash in the street. The context is one in which people who have never touched a computer will burn temples and homes of religious opponents because they heard that someone posted a picture that someone else found to be offensive on Facebook. The context is one in which the decision to take offense is a political act. The context is one in which subjective complaints of offense are sufficient to cease art — and if not art, at least Andrew Lloyd Webber. The context is one in which subjectively angry people will kill you not only for what they consider to be blasphemy, but for opposing the criminalization of blasphemy. The subjectivity at hand is not merely the idiosyncrasies typical of all humans — it is violent and political and calculated. Under the First Amendment exceptions proposed by some advocates, these are the people who determine what you may say and what you may not by deciding whether or not they are offended.

When you criminalize blasphemy, or criminalize offending people based on race or religion, you do not merely entertain the risk that some future hypothetical prosecutors or judges or jurors will extend the law further than you intended. Rather, you directly surrender to the mob and its manipulators the classification of what speech is legal and what speech is not. You're not taking a tentative step onto a slippery slope. You're leaping off a precipice at the tip of a spear. The slippery slope metaphor — one of the most valuable rubrics of First Amendment analysis — is entirely insufficient to encompass the risk to future expression.

Bear this in mind when censorship advocates and First Amendment critics argue "the First Amendment is not absolute" and "we've made exceptions before" and "this is just like a category of speech we already ban." What is being proposed here — surrendering the right to speak to the subjective reactions of others — is different in both nature and degree.

Edited to add: Jacob Sullum points out an instance of capitulation to the subjective reaction of the mob.

Last 5 posts by Ken White


  1. says

  2. says

    I think it's often perfectly reasonable to be offended. I'm not a complete buyer of the "it's irrational to be offended" idea. My main point is that offense is subjective and not a legitimate basis for legal punishment or compulsion.

  3. says

    and i think the subjectiveness is made even more prominent/apparent by those who choose to wear their emotions and/or religions on their sleeves.

    perhaps if we were all a completely rational and logical people, this wouldn't be as big an issue….perhaps.

  4. James Pollock says

    "Many are framing anti-blasphemy laws as limitation on deliberately giving offense; but offense is entirely subjective".

    I'm not sold. Oh, anti-blasphemy laws are stupid in multi-cultural jurisdictions, sure, but the notion that there is no (punishable) evil in deliberately offering insult is what I'm not sold on.
    I don't think it merits its own offense, but I think it should be a valid and complete defense to assault and/or battery, for example. (If you go looking for a fight, the court shouldn't hear your complaint when you find one.) Note that here I am differentiating between those who intend to offend and those who do so negligently (telling the difference is the jury's problem.)
    The fact that sometimes people try to provoke a response and get none doesn't excuse it; sometimes people throw punches that don't land, but that doesn't make throwing punches OK.

  5. Nicholas Weaver says

    Don't forget that even capitulation DOES NOT WORK. Look at Salman Rushdie: He tried to apologize to the mob. The mob did not accept it.

    Anyone else think we should try to pay for an advertisement on the New York MTA decrying the New York MTA's capitulation to the will of zealots and action deliberately taken to suppress the 1st Amendment?

  6. Greg says

    The slippery slope argument is essentially that you take one issue that everyone unanimously considers wrong or evil and make an exception for that, then you use that as a precedent to argue that less black and white subjects should also have exceptions made for them, and so on until the law/rule/etc is meaningless or abused as appropriate. I find it interesting that one of the 'buckets' here is the perfect example of that. Though virtually anyone would agree that child pornography is wrong and evil, it's exception is the one that is used most often for trying to work around the principle of free speech. I think using that as an example to avoid further exceptions is both right and proper; though the child pornography exception should probably stand (at the end of the day, it is evil), it shows just how much the principle of free speech can be undermined by exceptions, however righteous they are.

  7. Xenocles says

    "I don't think it merits its own offense, but I think it should be a valid and complete defense to assault and/or battery, for example."

    Don't take this the wrong way, but if you get your wish you may hear a knock on your door someday. If your visitor says "It's me, Xenocles," you would be well advised to not answer.

  8. Xenocles says

    I feel like I should add that there should be no actual threat inferred from my comment above, it was meant strictly as a "how would you like it" argument.

  9. Demosthenes says

    I left a response yesterday evening on the Mardhani article that Ken linked. (The one with the pull quote that begins "If any group is targeted by hate speech…") My comment consisted simply of taking the last few sentences of her article, substituting a few words to capture my own view of her, and to say "Fixed that for you."

    At the moment, my comment has not yet exited moderation. I wonder why. Oh, Faria, my darling…we could have made a beautiful flame war together, you censorious [deleted].

  10. SassQueen says

    1) I think that anyone who could consider the creation of child pornography as a variation of free speech rather than what it is (the abuse of children) is a moron. In the creation of that speech, if you harm someone, it becomes less about what you are "saying" as what you are doing.

    "Ken, you are a d-bag, I'm going to punch you in the nose." If I punch you in the nose while doing it, I can't cry "First Amendment!" and expect not to get in trouble.

    2) "[H]umiliation only operates with the consent of the humiliated." I disagree with this; you can't help your instinctive reaction to things that bother you. Only it's not relevant whether someone is insulted or humiliated or whatever by someone's speech – what's relevant is what they do about it. Shooting up an embassy because you heard someone had made a video insulting your prophet is a bit over the top.

  11. says


    The production of child pornography absolutely involves crime — the abuse of children. The categorical exception comes into play because SCOTUS has allowed criminalization of possession thereof by people who did not create it. This categorical exception has (1) been cited as a justification for creating other categorical exceptions, and (2) been used by analogy. Your punch-in-the-nose example is such an analogy. A better analogy would be this: should Patrick and David be able to possess, and enjoy, a video of you punching me in the nose, because the creation of the video involved a crime?

  12. James Pollock says

    The discussion of child pornography needs clarification (which the USSC provided). The categorical prohibition on possession of child pornography applies ONLY to that child pornography which involves harm to a child. So, computer-created child pornography is not covered, nor is "child pornography" created exclusively with participants who are young-looking adults.
    I think the analogy to "crush videos" was apt, although the Court disagreed. The out that some animals are killed intentionally and quite lawfully didn't seem to be relevant, in the sense that nobody was complaining about the videos where scantily-clad women operated the machinery at the slaughterhouse.
    But, I LIKE analogies.

  13. Howard says

    Silly people, there are simply too many possible expressions which might offend people. But don't worry, there is a simple way to solve the whole problem.

    We just criminalize offense. Not giving offense, just being offended.

    Thats right, such a simple twist, yet so easy to enforce, the offended self identify and we can haul them strait to the court.

  14. SassQueen says

    Except maybe not. Feel free to move on – I don't want to derail here – but I just can't wrap my head around how someone could justify the creation OR possession of child pornography as a First Amendment right.

    And I'm sure Patrick and David can find someone to punch you in the nose if anyone wants to test that analogy.

  15. Andy says

    Ken, in the international arena, as opposed to purely within the States, would you object to a reasonable man standard being used for these humiliation/blasphemy style laws. I ask purely because you speak from a background of Free Speech being pretty much guaranteed, while some of us live in countries with a less settled background.

    The reasonable man standard would hopefully cover the sort of anti-semitism that was part and parcel of pogroms and the Holocaust, but not cover the day to day exchange of ideas that can often offend the thin-skinned and those looking to make a political point.

  16. Xenocles says

    For me it's not so much a first amendment thing as it is a matter of bad law. Laying such an onerous burden on simple possession of any bit of inert contraband seems difficult to justify. I'm all for hammering those who create it, perhaps even those who support them by buying it, but there are too many innocent explanations as to how you could come to possess it that I don't think it's right to criminalize possession. What if someone slipped some child porn images onto your computer via some malware and tipped off the police to search it? What if you bought some pornography that you mistakenly believed only involved adults? I think there was a case in the last few years where a person discovered child pornography on a shared computer and was in danger of possession charges after reporting it (anyone remember that one / know how it turned out?).

  17. Xenocles says


    Freedom of speech is a matter that transcends law and therefore it transcends national boundaries. It makes no sense to differentiate between international and domestic matters of free speech.

  18. Andy says

    @ Xeno, I agree with you on this point, however, the laws of various countries vary with regard to the degree of freedom. Should an International treaty come about that isn't going to tick all the boxes, surely being able to find something that meets the bulk of the criteria is preferable to one that has every Tom, Dick and Harry allowing their subjective feelings to rule over us all. I feel a reasonable man standard could be one way of doing it.

  19. Greg says

    @Andy, How do you determine a reasonable man. Something I might consider perfectly reasonable (bikini clad women, for example) may be grounds for death by stoning to another person in another country with different beliefs. Something they consider perfectly normal (say, arranged child marriages including consummation) is going to outrage and offend me on every level. Throw in something (anything really) regarding religion, and you are bound to offend.

    As long as offense is subject to the eye of the beholder, you are never going to come to any sort of agreement about thresholds of reasonableness and offense.

    That, at the end of the day, why freedom of expression has to be protected from compromise. Literally anything you can say can (and will, given the opportunity) offend someone, even something you are saying in complete innocence with no offense to anyone intended. It isn't possible to ovoid offending anyone unless you completely isolate everyone from each other and allow no communication or contact.

  20. says

    It's not irrational to be offended. It's irrational to be emotionally distraught to the point where you are prone to commit violence, and/or you fall to pieces and can't live day to day, if you're a target of broad, generic, insults or mockery from random, distant, strangers.

    Suffering a strong emotional reaction to an insult aimed specifically at you as an individual, and not at some generic collective you may belong to, is pretty normal. The more close to you the insulter is, the more you value them and their opinion, the more you are likely to be hurt. That's normal.

    It's usually not criminal, though maybe it comes up sometimes? I dimly recall hearing the phrase "intentional infliction of emotional distress", but I think that's more involved in civil cases, probably related to stalking, harassment, and other things that are at most tangential to speech. Or not, I haven't really looked into it.

    The idea of a "group" being offended is what I have trouble with, from the perspective of law. Yeah, I have an emotional reaction if I read statements about collectives I belong to (libertarians, Jews, atheists, gamers, Caucasians, males, cat owners, programmers, 40-somethings, Gen-Xers, non-vegetarians, and thousands more — we all belong to thousands of collectives) that demonstrate profound ignorance and irrationality, but this reaction is not going to make me curl up in a fetal ball and sob because my "dignity" has been impaired, or rush out and start breaking things. (I think I react more to irrationality, in general, than to any specific form of it.) It is not possible to go through life in a world of 7 billion+ people and not constantly encounter things that are insulting. If you can't deal with that, you need to organize your life to limit your contact with the world; the world does not need to shut up in order to spare your feelings.

    I believe it is a good thing to be polite and to treat people with basic respect, even if you disagree with them, though this depends on context. If you jump into a debate forum to argue religion, I'm going to be a lot more sarcastic than I'm going to be when dealing with people in other situations. I don't go around to people who wear religious icons, or who mention that they go to church, and start questioning their faith. Only if they try to push the issue on me will I push back. Likewise, I'm not a vegetarian, but I won't bring meat into a friend's house if I know they are (unless they've said it's something they permit or don't mind). At the same time, I won't clean all the meat out of MY fridge whenever they visit, though I *will* try to have snacks they can eat, if I'm providing them for anyone else.

    It comes down, as it often does, to "should" vs. "must". "Must" is what we have laws for. You SHOULD respect people's beliefs if they're within a few standard deviations of the norm. The idea that there's no belief so outrageous that it can't be mocked out of hand is foolish. (In other words, there are gradations from the guy who has a Confederate flag on his car because he's proud of his heritage, and the guy who thinks slavery was a good idea and doesn't know why people are so upset about it — or, on the other side of the spectrum, the guy who's a vegetarian, and the guy who thinks that putting flea powder on your cat is committing mass murder (oh, and you're enslaving your cat).)

    I hope that clarifies things a bit.

    On the tangent of child porn and the slippery slope… we've already seen it happen, as possession of images of child porn that involve no children — either CGI images created using 3D tools, or hand-drawn pictures — is considered just as criminal as possession of actual photos of a crime. (It's generally legal to have pictures of crimes — go to any bookstore and hit the "True Crime" section, gory pictures ahoy! Child porn is considered different because of the commercial nature, that is, people will molest children solely to produce the child porn, so there's a reasonable argument that targeting consumers can impact producers. Contrariwise, no one is likely to commit a grisly homicide just to write a book about it. Probably. How many copies would it sell? Anyway, since *drawing a picture* is not a crime, it's hard to apply the same argument. A market in images that do not require any crime to produce, by definition, doesn't increase crime or harm any children. The "might lead to people abusing children" argument is the same old tired cliche: We can't permit X in fiction, because people might do X in fact. If there was any truth to this, the prisons would be full of fans of Agatha Christie.)

  21. Miranda says

    I'm not sure if this comment fits in exactly, but it's a memory that has weighed on me – on and off – for years and that comes up any time freedom of speech does. In college, I took a class called "The First Amendment" and we spent a lot of time on free speech issues. One day we discussed flag burning and anti-war speech in the context of Vietnam. A girl in my class told a story about her dad being a Vietnam vet, only she didn't find out until she was almost grown. He never told his kids about that because he was ashamed, and he said this shame came mostly from the way he was treated when he returned. He was spit on and called horrible names. She supported limiting speech like this (not the spitting, which isn't speech when you aim to spit on someone, but the name-calling and flag burning) because of the damage it did to her dad.
    I responded that we don't make laws to avoid hurting people's feelings. I made her cry. I know that I didn't handle it well and probably came off like a cold-hearted bitch after her very emotional disclosure. I hope when she reads things like this post, she understands what I meant.

  22. Rich Rostrom says

    On the one hand, we have people who use taking offense as a means to silence speech they dislike, and who will take offense at anything they disagree with (various Moslems).

    On the other hand, we have people who utter speech whose only purpose is to give offense, and who will go to great lengths to be as offensive as possible ("Westboro Baptist").

    Both groups are identifiable, but not by any objective test.

  23. Valerie says

    I agree completely with the stupidity of hate-speech laws – we ought to punish actions, not thoughts or words.

    On child pornography, I am less sure. I understand the argument that the consumer did not commit the original crime, but couldn't you argue that by paying for end product the consumer is an accessory after the fact since they are paying for the spoils of a criminal activity? If someone buys loot from a thief, they can be charged with receiving stolen goods. Wouldn't the same legal principle to child pornography? (I know, I know, argument by analogy…)

  24. James Pollock says

    " What if someone slipped some child porn images onto your computer via some malware and tipped off the police to search it?"
    Then you hire a really good forensic tech to examine your computer and testify to the presence of malware which would make this possible, and you hope that you can prove it.

    "What if you bought some pornography that you mistakenly believed only involved adults?"
    What if you had sex with an underage girl that you mistakenly believed was an adult? That's a strict liability offense.
    It can happen, though… Traci Lords started making porn when she was 16, and nobody found out until years later. Here you would argue the defense of mistake, to attack the notion that you intended to possess child pornography. (This is also the defense you would use if you downloaded a file called "happy puppies and rainbows" that turned out to be child porn.)

  25. Xenocles says

    James, I don't accept the idea of strict liability in those cases. I believe the law should require that a defendant knew or should have known he was committing the offense – which I understand differs from the way the law actually operates these days. I mean, say you pick up a girl at an event where everyone present should have been verified to be 21 or over. She even shows you her (fake) ID. Turns out she was 17. Should you go to jail?

    As for your first point, whenever your setting it up so that the defense depends on "and you hope that you can prove it," you're on shaky intellectual ground. Our system is supposed to be based on proving guilt, not innocence. At every step the government should have to prove wrongdoing, not the other way around. (Again, this is an ought, not an is.)

  26. jimd says

    It seems to me that this whole thing is not really about free speech, but an attempt to mollify some group that has a tendency to violence as part of their culture. Faced with a violent mob, world leadership seems to be sniveling. They would react more bravely if instead of killing people, the mob handed out flowers for the same offense.

  27. Eric Henson says

    I would be very interested in reading a post on the anti-bullying laws, in particular anti-cyber-bullying laws, and how they relate to the First Amendment.

    Clearly, if 'bullying' statements incite violence, they are already illegal, without needing an additional law. And provably false statements would be covered by libel laws. But stating an opinion–yes, even a 'mean' opinion–about someone else should be protected free speech, is it not?

  28. James Pollock says

    "James, I don't accept the idea of strict liability in those cases."
    Unfortunately for you(?), the prosecutor and the judge do. There's no excuse, from "no, really? I didn't know that" to "but she showed me three forms of ID that showed she was 18!"

    As for the rest, Xeno, you need to look up "affirmative defense". In an affirmative defense, you basically say "yes, the elements of the crime did happen, but I had a REALLY good reason to do what I did". Most notably for the current point, when an affirmative defense is invoked, the burden of proof shifts to the defendant to prove their defense, because invoking an affirmative defense more-or-less concedes that the elements of a crime have occurred.
    So, if the prosecutor can show that child porn was found on YOUR computer, you ARE in possession of child porn. If you want to claim that someone else put it there, it's up to YOU to prove that it wasn't you.
    Of course, cases that are prosecuted tend to involve people who have collections of thousands of computer files, and the FBI likes to watch people who download CP rather than to make immediate arrests, to try to break up CP rings, so it's unlikely the prosecutor is filing charges over a single incident (unless you have access to the kids in the CP in question).

  29. Xenocles says

    Did you miss the two distinct times in my post where I made it clear that I understand there's a difference between the way things are and the way I want them?

  30. JDM says

    @James Pollock — I think your statement that computer generated child porn is legal is a little out of date. SCOTUS did decide that. Subsequently the PROTECT act outlawed any item that "appears to be" child pornography and is obscene. Pretty much everything that appears to be child porn is also obscene in my opinion, so a little bit of creative legislation got us arround the first ammendment in this case.

  31. JDM says

    While I agree that subjective restrictions on speech are dangerous, I disagree with your assertion that present restrictions on speech are objective.

    Justice Potter Stewart defined obscenity, and thus unprotected speech, as "I know it when I see it." The court subsequently defined obscenity in terms of a community standard — an explicitly subjective standard.

    The difference between a rousing political speech (protected) and incitement to violence (unprotected) also lacks an objective distinction.

    Regardless of the wisdom of the newly proposed limitations on speech, we have had subjective limitations on our speech for a long time, and the sky has not fallen.

  32. James Pollock says

    JDM, things which are obscene already lacked first amendment protection (as you appear to understand quite well) so I don't see what point you are trying to make.

  33. C. S. P. Schofield says


    It becomes rational to be offended if, every time you do, hordes of well meaning idiots rush to demand that the Nations of the Earth cater to your whims. This is, bluntly, what the U.N. driven diplomacy of the WWII era has taught to Islamic extremists, criminal/revolutionary movements like Shining Path, and scores of third-world pissant dictators.

    What need to happen is several decades during which outraged mobs of unwashed barbarians are routinely ignore or – if they pose a danger to peaceful persons – thumped. In which governments that play the outraged card to try to screw concessions out of the West are metaphorically sent recordings of the worlds smallest violin playing "My nose bleeds for you". In which some value is placed on civilized discourse, which is often rude but doesn't descend to the level of the Mob.

    Not. Going. To. Happen.

    Which is rather a pity.

    Frankly, it doesn't take too many decades of post-colonial inter-tribal genocide, famine as a tool of Statecraft, and howling barbarism with a patina of revolutionary bushwa, to make Colonial Paternalism look awfully Goddamned good. But there's nobody left with the temperament to do it anymore.

  34. John David Galt says

    Canada's so-called Office of Human Rights is a thorough attempt to ban offensive speech categorically. It has now been around long enough to have a quite instructive case history — and the #1 lesson to be learned there is, no such scheme can protect everybody's feelings; there will always be somebody making judgment calls that group A's feelings are worthy of protection from butthurt, but group B's are not. Pretty soon even political speech isn't free any longer; campaigning against "nannyism" will now get you fined and ordered to apologize.

    Let's not go down the same path. In fact, let's back out all the so-called progress we've already made in that direction.

  35. David Schwartz says

    SassQueen: "but I just can't wrap my head around how someone could justify the creation OR possession of child pornography as a First Amendment right."

    What could be a more fundamental first amendment right than the right to possess the reading material of one's choice? And by the way, these laws can apply even if the material was created lawfully and no harm to children was involved. For example, relates laws have been successfully applied to works produced in a country with a lower age of consent and it have been applied to "trafficking" in "obscene" cartoons.

  36. C. S. P. Schofield says


    How about this; with ambitious prosecutors ready to bend the law to get convictions it is not a stretch to expect nude photos of a baby to be called "Child Pornography". Such photos, taken by family members or at the behest of family members, used to be common; 'nude baby on a white fur rug' being a case in point. Teens sending pictures to friends have been prosecuted to producing 'child pornography'. A man who is in a legal relationship with a teenage girl has been prosecuted for possession of 'child pornography' because she sent him a nude picture.

    Actual child porn is evidence of a crime. "Child porn" that ISN'T evidence of a crime is an excuse for a prosecutor to collect scalps.

    Also, of course, any category of speech or publication that is not covered by the 1st Amendment is an invitation to the State to get comfortable stretching the definition to cover anything it doesn't like. Keep firmly in mind at all times that when all "Pornography" was illegal, one of the State's favorite things to label as "pornography" was information about contraception. It isn't hard for me to imagine some yotz with an axe to grind going after the publisher of an illustrated book of sex hygiene for teenagers.

    Laws against the possession of (broadly defined, or not defined at all) "Child Pornography" are a case of "We know these bastards have to be guilty of something, so we'll write a law they can't get out of". Such laws are always bad law. For one thing they count on prosecutors to exercise common sense restraint.

  37. SassQueen says

    @ David and CSPS

    Thanks for those. My problem is I tend to be somewhat of a concrete thinker, where child porn where video is made of children being raped is obviously Bad and n4ked pictures of my children in the bathtub on my phone are obviously Not Bad. Of course, injustice happens in between those two extremes, and THAT is the point probably.

    So it's helpful for me to think outside the box a little, and it's one reason I'm so glad I've found this blog/community.

    /me goes off to delete all bathtub pictures off my phone

  38. says

    @JDM: The argument that "We have crappy laws already, so what's wrong with more crappy laws?" is not, to me, exceptionally convincing.

    One of the issues with laws against "offense" is that you either base guilt on the testimony of the offended, which means you're always guilty (If it's a crime to offend someone, and he says he's offended, that's that, right?), or you base it on something like "intent to offend", which is ridiculously slippery (How many times have we heard, "I'm not trying to offend anyone, I'm just presenting my sincere belief that homosexuals are all child molesting satanists."?). Is truth a defense against offense? And do you want to overturn a long, and valid, tradition of producing material quite deliberately designed to offend and shock, in order to get society to confront its hypocrisies or default assumptions? Is there an "I didn't know it was offensive" defense?

    Off on another tangent, for those who think that, maybe, there should be laws against deliberately seeking to offend people by mocking their religious beliefs, I ask that you take 22 minutes or so to watch this, ( ), and tell me if it would counted as "offensive" under any sort of rules regarding mocking, defaming, or insulting people's sincerely held religious beliefs. Why or why not?

  39. JDM says


    I think I did not adequately explain my comment. I am against laws outlawing "offense." My comment is that Ken's original post claims that such laws would differ "in nature" from current restrictions on speech. Ken seems to argue that current restrictions on speech are objective and proposed restrictions are subjective.

    I write only to point out that our current restrictions on speech are subjective, and made only quasi-objective by making them apply to the subjective impressions of a reasonable person. There is no more subjectivity in what a person finds religiously offensive than it what someone finds to be obscene, or inciting, or otherwise not protected speech.

    While I oppose laws outlawing offense, I do not share Ken's opinion that they differ significantly from present restrictions on free speech.

  40. says

    @JDM: I think there is a distinction to be made. In general, things like "obscenity" (slightly, don't ask me to defend obscenity laws even in theory), and "incitement" (much more so) rely on broadly defined and widely shared social standards, the so-called "reasonable man". Incitement, in particular, has pretty high bars set to prevent it being abused. But with religious speech, well, religion is unreasonable. :) As Heinlein said, "One man's god is another man's belly laugh." Unless you limit a jury solely to members of the religion being targeted, then, the "reasonable" juror, practicing the majority faith, or at least so surrounded by it since birth that he thinks of it as inherently "normal" as compared to all those SILLY religions, would be quick to say, "Why, yes, this portrayal of Jesus having sex with Ganesha (,29553/) is offensive!" He would be less quick to condemn mockery of Mormonism, Islam, Scientology, etc, because he knows how "ridiculous" those faiths are and has a much higher bar: HE'S not offended if someone says Joseph Smith was a con man and a pervert, because, he was, wasn't he? Right?

    Thus, any prohibition on "religious offense" that relies on the "reasonable man" standard would end up protecting only the local majority faith, and whatever minority faiths were still considered "respectable" in the community. In this Internet age, you'd end up doing what porn prosecutors do — go venue shopping. You'd find, say, an extremely conservative Mormon community in Utah, and show them South Park's "All About Mormons", and sue Comedy Central because they "made available" the program in that community, where the "reasonable man" is much more likely to be offended by it than would the "reasonable man" in any state *not* inhabited primarily by inbred polygamists. Repeat for any other faith — there's loony toon ultra-orthodox Jews in Brooklyn and Queens who'd give any Mullah a run for his money when it comes to close-minded intolerance and misogyny. Head down to the Bible Belt to find people who think the moon sheds its own light, because that's what the Bible says. (Really. I Am Not Making This Up.) Etc.

    This is already done for porn, as noted, which is a good argument that obscenity laws are too subjective to pass muster in a society where it's considered important that someone have an idea he might be breaking a law before he does — as the Supreme Court noted when striking down the CDA, you would have to be familiar with the "community standards" of the entire nation to know if you were safe, and that was too high a burden. Incitement, because it relies on much broader and more widely shared values of what's likely to move someone to violence, is a much stronger legal test, IMO.


  1. […] Yet another law professor, this time Harvard's Noah Feldman, suggests suspending First Amendment protection to placate offense [Newsday, Volokh] As background, in Britain, "Channel 4 has cited concerns over security as the reason for cancelling a planned screening at its headquarters this week of a documentary film questioning the origins of Islam." [Guardian via Volokh; Michael Totten, "The Terrorists' Veto, City Journal] Notes Ken at Popehat: "The context is one in which the decision to take offense is a political act." […]