This essay provides a critical philosophical assessment of “offensiphobia,” which is the belief that higher educational academic freedom ought to be to some important extent censured because of the mere offensiveness of certain kinds of expressions, whether those expressions are perceived as being racist, sexist, etc., effectively holding that the offensiveness of such expressions is a sufficient condition to justify its prohibition. This paper concisely sets forth the general legal parameters of the United States constitutional First Amendment right to freedom of expression. Subsequently, it follows Joel Feinberg in distinguishing between harms and offenses and explains why the law should only protect against harms and not mere offenses (e.g., language which offends but does not harm). Following this, logical and moral considerations (some based on considerations of philosophy of language) are brought to bear in order to further assess the implicitly supporting view of offensiphobia that faculty and students in higher educational contexts have a claim right to not be offended correlated with a duty of others to not offend them. For example, the use-mention distinction is discussed in order to explain why linguistic intent is crucial for the determination of what genuinely counts as being racist, sexist or otherwise offensive discourse. In the end, there are a variety of reasons for thinking that there is no moral right to not be offended correlated with a moral duty of others to not offend in higher educational contexts and that the law and public policy ought to track this fact. Without a right to not be offended, those who seek to curtail higher educational academic freedom rights by way of censorship stand on unreasonable ethical grounds to do so, though the law seems to permit private institutions to delimit offensive expressions. Offensiphobia ought to be rejected as it is unsupported by the balance of reason.
KeywordsAcademic freedom Censorship Joel Feinberg Freedom of expression Harm versus offense Linguistic intent Offensiphobia Offensive language Racialism versus racism Rights Use-mention distinction
The importance of free expression is so great and so special that only the necessity to prevent direct and substantial harm to assignable persons can be a sufficient reason for overriding the presumption in its favor (Feinberg 1980: 71).
Collective fear stimulates herd instinct, and tends to produce ferocity towards those who are not regarded as members of the herd (Russell 1950: 109).
…gravest matter. In most countries certain opinions are recognized as correct, and others as dangerous. Teachers whose opinions are not correct are expected to keep silent about them. …I should not myself consider that a man could be a good teacher unless he had made a firm resolve never in the course of his teaching to conceal truth because it is what is called ‘unedifying.’ The kind of virtue that can be produced by guarded ignorance is frail and fails at the first touch of reality….The thing, above all, that a teacher should endeavor to produce in his pupils, if democracy is to survive, is the kind of tolerance that springs from an endeavor to understand those who are different from ourselves….There ought to be a great deal more freedom than there is for the scholastic profession. It ought to have more opportunities of self-determination, more independence from the interference of bureaucrats and bigots….The teacher, like the artist, the philosopher, and the man of letters, can only perform his work adequately if he feels himself to be an individual directed by an inner creative impulse, not dominated and fettered by an outside authority (Russell 1950: 120–122).
Academic freedom is at stake each time an individual or group seeks to exercise intellectual control over a faculty and inhibit its search for truth. The primary obligation of every faculty member is to resist such threats and yield no ground to those who attempt intimidation or domination. For a university without academic freedom is unworthy of the name (Cahn 1986: 5).
The maintenance of free inquiry requires that all points of view be entitled to a hearing……When one person’s opinion is silenced, no one else’s may be uttered in safety (Cahn 1986: 5–6).
If I lived in China or even Russia, or any totalitarian country, maybe I could understand some of these illegal injunctions. Maybe I could understand the denial of certain basic First Amendment privileges, because they haven’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for rights. And so just as I say we aren’t going to let any dogs or water hoses turn us around, we aren’t going to let any injunction turn us around (King 1968).
Much has been written on offensive language, academic freedom, and freedom of expression concerning higher educational contexts in the United States of America. However, much of the literature is either unclear or presumptuous about the specific nature of what counts or what ought to count as offensive language, and this in turn causes conceptual confusion with regard to what is deemed to be language which ought to be censured by law and/or by university policies. Should merely offensive language in higher educational contexts be prohibited by either U.S. law or university policy? This paper provides a philosophical investigation into the answers to these and some related questions with special attention given to the normatively ethical dimensions of established U.S. First Amendment law and university policies on academic freedom. The focus herein will be on offensiphobia in public higher education as U.S. federal law seems to permit private institutions to prohibit merely offensive expressions.1
Increasing numbers of university students express that they are offended by something or other which either another student or a faculty member has expressed. In their corporate quest to appear to serve the best business interests of their student clients and to avoid costly legal actions against their respective universities, increasing numbers of university administrators appease such students by devising university policies which are designed to protect students from offensiveness on campus. In other cases, such corporate administrators ignore their own respective college or university academic freedom policies which in many such cases unambiguously protect offensive expressions in research, teaching and service as such administrators attempt to coerce certain faculty and students to avoid the use or even mention of certain expressions deemed to be offensive.2 Apparently, much of the wisdom of Bertrand Russell quoted in the above epigraphs reflects precisely part of what he condemns as an affront to a well-functioning university faculty. But is offensiveness a sufficiently good reason to create policies which violate academic freedom rights of both faculty and students? Do college or university administrators, faculty, staff or students have a right to not be offended which might be correlated with a duty of administrators to protect administrators, faculty, staff or students from being offended?
Simply put, what I shall refer to as “offensiphobia” is the fear of offensiveness and the attempt to prohibit it by way of law or public policy. But my main concern here in higher educational contexts is the fear of offensiveness due to human expressions and the attempts to censure them. More specifically, I am primarily concerned with higher educational offensiphobia and whether or not it is morally justified insofar as it seeks to censure human expressions which merely offend. I shall understand offensiveness to constitute a person’s expression which causes feelings of emotional discomfort in self or others. It is this sense of “offensiveness” and its cognates which lies at the root of offensiphobia.
There are many ways in which offensiphobia might manifest itself. First, I can fear that I myself might be the object of offense. Secondly, I can fear that another person might be the object of offense. Third, I might fear that I myself might offend either myself or someone else. Furthermore, offensiphobia need not limit itself to fear of intentional offensiveness. I can fear even offensiveness which is unintended by those who express the offensive words.3 Thus while it is often reasonable for me to be offended by expressions which are intended by their subjects to offend me, there are those who are often offended by expressions which are not even intended by their subjects to offend. Offensiphobes, even if they can accept the linguistic fact concerning the ambiguity of various words, often seek to pick and choose which meanings of ambiguous words they want to condemn and prohibit due to their offensiveness to them regardless of how the words were intended by their speakers and writers.
This points to the subjectivity of offensiveness which precludes offensiveness from serving as a sufficient condition of good law prohibiting offensive expressions. Examples of this include a person’s referring to a black person as “black” instead of referring to her as an “African-American.” While millions of U.S. blacks4 refer to themselves, and prefer that others refer to them, as “blacks,” many demand that such persons be referred to by way of the category which many academics and other mostly middle-class white persons approve: “African-Americans.” A similar matter arises with respect to American Indians,5 either many or most of whom (especially those who reside on reservations in the U.S.) refer to themselves as “Indians.” Several insist that such persons be referred to as “Native Americans,” a term abhorred by several American Indians themselves in significant part because the term does not originate with American Indians, but with out-group members. The moral absurdity of this sort of offensiphobia is transparent, that is, if hard paternalism is not presumed to be justified in the face of the apparent insistence that out-group members know better than in-group members how in-group members ought to be labeled. Such hard paternalistic forms of ethnic labeling are no less problematic coming from the moral and political left than from the moral and political right.
Not only is merely offensive language hopelessly subjective in that what offends some does not offend others, making it problematic for the law and public and university policy to non-arbitrarily determine the boundaries of genuine offensiveness, it is problematic in other ways. It is important to recognize the moral hypocrisy of offensiphobia.6 On the left are several who will support the desecration of a flag such as the confederate battle flag or the flag of the USA the desecration of which is offensive to supporters of such flags, but several of those same people will seek to censure even the mention of a particular word or phrase which offends them (typically, racist epithets are included among such terms). On the right are many who support even the use of offensive words such as racist epithets to intimidate members of certain groups, but refuse to acknowledge the right of others to express their disapproval of this or that view or policy by way of desecrating a flag which they themselves cherish. In either case, moral hypocrisy abounds as each group ends up either implicitly or even explicitly adopting a position which is contrary to how U.S. federal courts have interpreted the First Amendment during the past few decades. Their respective offensiphobic commitments run so deep that they seem to be oblivious to said hypocrisies. Yet it is precisely such moral hypocrisies which lead more moderately-minded folk to steer clear of such ideologies which disrespect rights to freedom of expression.
Furthermore, offensiphobia is problematic in its application in that what offends someone at time tn might not offend them at tn+1, tn+2, etc. Hence there is a subjectively complex and often unpredictable character concerning what offends, both inter-personally and intra-personally. An example of this is the fact that many blacks in the U.S. have changed their own views as to the offensive nature of “blacks” in reference to themselves by in-group or outgroup members, while at the same time many out-group members disagree about which category to refer to blacks as an ethnic group in the U.S.7 In part, this makes offensiphobia unreasonable and hardly the basis of either a legal or a moral right to not be offended.
These and other aspects of offensiphobia form part of the context wherein increasing numbers of college and university administrators, faculty, staff and students adopt the position that certain expressions ought to be censured because of their offensiveness to them.8 It is this aspect of offensiphobia which is the primary subject of this essay. It is vital to address offensiphobia because it often underlies the movement to censure faculty and students in higher educational contexts, thereby delimiting academic freedom rights which in the U.S. are founded on First Amendment freedom of expression rights as well as the institution of faculty tenure.9 It is one thing to accept the notion that offensive expressions ought to be prohibited. But it is quite another thing to seek to implement such an idea in a reasonably just and fair manner. One ought to and does have the right in the U.S. to adopt a position of offensiphobia. But if what is argued herein is plausible, then it is illegal and immoral to attempt to implement offensiphobic doctrines into higher educational contexts throughout the U.S..
The Right to Academic Freedom
Prior to setting forth a philosophical assessment of offensiphobia beyond its being subjective and thereby serving as a poor foundation for law which might prohibit merely offensive expressions, it is important to provide a brief preliminary taxonomy of the right to academic freedom. The right to academic freedom, as I construe it, is a species of the more general right to freedom of expression guaranteed by the First Amendment to the U.S. Constitution as it has been interpreted by the U.S. Supreme Court and various federal district and state supreme courts during the past few decades.10 It is a complex right correlated with the duty of others to not interfere with the exercise and enjoyment of the liberties it accords faculty and students in higher educational contexts.
I shall focus on the faculty component of the right to academic freedom. It has at least three general categories: rights to freedom of expression in research, rights to freedom of expression in teaching, and rights to freedom of expression in service. As researchers, for instance, faculty must have the unencumbered right to investigate topics and problems as they choose, regardless of the subject area or the position adopted as the result of such investigation. As teaching faculty and consonant with the epigraphs from Russell quoted above, they must have the unencumbered freedom to express themselves, however offensively at times, in the classroom for the sake of the quality of student learning (presumably, so long as they do not, for instance, target a particular student in her classroom with genuine animus). And in service to their profession, college, university and/or communities, faculty must be at liberty to express themselves so long as they are careful to not attempt to “speak in the name” of anyone or anything else. For instance, if a faculty member is interviewed as an expert by a local television medium, s/he should make an effort to clarify that s/he does not speak for the college or university with which s/he is affiliated, especially since the medium source typically lists the faculty member’s rank and institutional affiliation in introducing the faculty member as an “expert” to viewers, readers, etc.. These are a few of the rights faculty should have in expressing themselves, however sometimes offensively, in order to perform their duties well in educating themselves, students and one another in diverse contexts. There is also the right to freely attempt to publish on which topics and in which journals and on which presses one chooses, the right to teach from a wide variety of methods and subjects within one’s areas of expertise and competence, and the ability to select how one will serve: the profession, the college or university, and/or their community, as the cases and opportunities may be. This incomplete taxonomy suffices to illustrate the complexity of the right to academic freedom. Throughout this essay, I shall refer to it either as the “right” or “rights” to academic freedom. As noted, in the U.S. said right is grounded in the established federal legal right to freedom of expression guaranteed by the First Amendment to the U.S. Constitution and also by the very institution of tenure. But it is also a moral right (correlated with a moral duty of non-interference by others) which is grounded in various sound moral principles and reasoning in what follows.
The value of the right to academic freedom in particular and freedom of expression more broadly is multifaceted. First, it relieves one of the duty to provide non-arbitrary grounds for distinguishing between expressions which are permitted because they do not offend and those which are not permitted because they offend. Indeed, as we shall see, this is a most formidable task—perhaps even practically impossible—given the subjectivity of that which offends. Secondly, it relieves one of the duty to provide non-arbitrary grounds for identifying whose being offended constitutes the standard for impermissible expression. Thirdly, valuing freedom of expression provides all persons the freedom to commit errors of reasoning and to think and express themselves in pursuit of their searching for and discovering their own voices and mindsets in a complex world absent hard paternalistic intervention which would rob them of their personal autonomy and dignity. In turn, it guards the autonomy which permits persons to distinguish themselves from others, to choose their own mindsets as they see fit absent harming others. In this way, the right to academic freedom is a species of the more general right to freedom of expression which, within the bounds of such rights, is consonant with the separateness of persons which I, following John Rawls, assume to be a vital moral consideration (Rawls 1971: 3–5).
However, as we shall see, there are those who believe that it is more important to paternalistically guard against offending self or others,11 and that this is such an important value that it ought to restrict the freedom of everyone to express themselves without harming others. But one must ask whether such a movement to censure adult human expressions which do not genuinely harm others is justified and reasonable, all relevant things considered. The distinction between harming and offending is crucial here, where a harm is the setting back of a legitimate interest (Feinberg 1984–1990). Essentially, a harm is the violation of a right which is correlated with a duty of others to not violate. Thus if there is a right that one has to not be harmed by way of, say, their being offended, then generally one would expect that such a right is correlated with a duty of others to not harm by way of offending others. This is precisely what is being challenged in this paper: The idea that there is a moral right to not be offended, implying a moral duty of others to not offend.12 The notion of harm is implicitly “built into” or entailed by the notion of their being a right to not be offended. More shall be made of this point is made below.
The Offensiveness Argument for Censorship
Offensive language ought to be censured;
X is offensive;
Therefore, X should be censured,
Yet one might reject (1) and hence reject the conclusion that “X should be censured” for numerous reasons, including the above-discussed reasons related to subjectivity and offensiveness.13 Alternatively, one might reject (2) in denying the soundness of the argument. In rejecting (1), one might also do so because it is unclear that there is a right to not be offended which correlates with a duty of others to not offend, as already noted. In rejecting (2), one might question whether or not it can be reasonably established that a certain expression is sufficiently offensive to qualify for legal prohibition. While the above reasoning concerning the essential subjectivity of offensiveness centers on the dubious nature of (1), in what follows (1) and (2) are each subject to either defeat or neutralization. In general terms, the philosophical assault on the argument in favor of offensiphobia is inspired by John Stuart Mill’s view that no political view whatever can legitimately be censured merely because it is offensive (Mill 1865).
While there are the noted problems of subjectivity of what legitimately counts as offensive and the arbitrariness of deciding what ought to count as being offensive, there are numerous other problems, both legal and ethical, with offensiphobia. Let us consider each of them in turn.
Offensiveness and Established U.S. Law
As Joel Feinberg argues, there are five discernible legal categories of unprotected expression according to U.S. federal law. First, one cannot knowingly and unnecessarily cause panic, by, for instance, screaming “fire” in a crowded theatre wherein one has no good reason to believe there is no fire. Second, one cannot intentionally provoke retaliatory violence. Third, one cannot intentionally incite a violent insurrection. Fourth, one cannot intentionally employ “fighting words.” Fifth, one cannot intentionally violate another’s privacy, presumably, wherein there is a reasonable expectation of privacy14 (Feinberg 2004). Expressions which fall under one or more of these categories constitute harms and can and should be legally prohibited. Otherwise, even the most offensive language is permitted—especially in higher educational contexts.15 So unless it can be established that a particular mode or instance of offensive expression falls under one or more of these categories of unprotected expression, it is legally problematic to restrict either a faculty member’s or a student’s right to freedom of expression. But it is also ethically problematic to the extent that the arguments articulated in this essay are plausible.
The Case of the Black Student. One kind of case of offensiveness which should concern us is one in which, say, a black student on campus is relaxing between classes or walking to class when she is approached by someone (from whichever ethnicity) who calls her, with racist animus, a “nigger.”16 Indeed, such a person might even follow the black student around campus as she attempts to evade such insults, calling her all sorts of anti-black racist epithets. This is of course a paradigmatic case of racist harassment. Yet it falls under the privacy violation category of unprotected expression. Protections of privacy are not limited to mere revelations of personal information, but also include the protection of one’s own time alone or to be left alone in peace, as the case may be. Insofar as a student has a reasonable expectation of being left alone on campus in peace and quiet and not verbally harassed, such verbal (in this case, racist) harassment is and ought to be unprotected by the First Amendment and campus policy especially in cases wherein she attempts to avoid the harassment but cannot, within reason and given the context, successfully escape it. While in many cases the line between legally and morally protected expression, on the one hand, and verbal harassment, on the other, is rather difficult to detect with reasonable precision, the above case is one in which the expression in question is not and should not be protected by law or institutional policy for the reason that it constitutes a harm (in that context) to the student being called, with racist animus, a “nigger.” This is especially the case in light of the history of the use of “nigger” throughout the United States.17
Moreover, that such freedom concerns “expression” that is verbal rather than that which amounts to conduct is clarified in Cohen versus California (1971) and Village of Skokie versus National Socialist Party of America (1978). Thus the above argument for offensiphobia [(1)–(3)] is problematic insofar as it violates the expressive freedoms of faculty and students whose expressions satisfy the standards held by established U.S. law. Whatever the motivation of this attempt at curbing constitutionally protected expressions, it is time to continue to examine philosophically such a position of censorship in order to judge its rational viability and its reasonableness, i.e., its moral justificatory status.
Harms Versus Offenses and the Moral Arbitrariness Objection to Offensiphobia
The informational contents of (1)–(3) represents increasing numbers in U.S. higher education who believe, implicitly or not, (a) that students and faculty have a right to not be offended; (b) that said right is implicitly correlated with a duty of others to not offend them; and (c) that laws and policies ought to be drafted and enacted in order to protect against such offensive expressions. However, the argument is, as noted above, a legal non-sequitur in light of the distinction between harms and offenses. The law is designed to protect against rights violations which amount to genuine harms. Mere offenses (as opposed to offenses which amount to harms, say, to invade another’s privacy, provoke retaliatory violence, etc.) do not constitute genuine harms and ought not therefore to be regulated or prohibited as such. Some of the reasons why law and policy cannot and should not censure or prohibit mere offenses are explained in what follows.
Those who concur with the offensiveness argument for the censorship of certain expressions which offend sometimes seek to collapse or at least blur the distinction between harms and mere offenses. They often insist that some offensive language constitutes harmful actions in the form of speech acts which offend and thereby ought to be censured because they constitute offensive harms (actions). While this is a contentious view of harms, offenses and language, let us examine its philosophical underpinnings in order to discern if it is sufficiently reasonable, all relevant things considered, to ground the delimitation of expressions which offend by seeking to expand the boundaries of what harms to include expressions which merely offend. Is there a legitimate interest in (i.e., a right to) not being offended which would ground the right to not be offended? Is there a correlated duty to not offend? There is no question that many people think they have an interest in their not being offended. They might even think that they have a legitimate interest in their not being offended. But is said interest genuinely legitimate? And if so, what might ground its legitimacy, especially in light of the fundamental subjectivity of what offends as noted above? And is it reasonable to think that offensive expressions can genuinely harm in light of such considerations? And what exactly might be meant by the idea that an offensive expression can or does harm someone or other?
In consideration of the attempted collapsing of the harm verses mere offense distinction, it should be understood that law must be efficacious (enforceable absent arbitrariness or other factors of unfairness) in order for it to be good law (Hart 1994: 104–105). Indeed, inefficacious law is no law at all. Yet while the law can be and is designed to address harms to self and others, it cannot effectively address mere offenses. One reason for this is, as noted above, because of the subjectivity of what often constitutes an offense. For while some “thin-skinned” or easily offended persons are extremely sensitive to (some are even psychologically traumatized by) hearing or reading certain words which they deem as offensive, many others (even those within the same “protected” groups), being “thick-skinned,” are not offended by such expressions and even welcome them such as they might in comedic contexts. Thus while it makes sense for the law to address harms such as murder, rape, and theft in that such acts constitute harms to people generally and can be objectively distinguished as such, it is unreasonable for the law to prohibit such subjectively construed matters such as words which are deemed to be offensive by only some (even many) people, but not by many others. Again, as already noted above, that whatever expressions would offend some is subjective and unpredictable makes the call for censuring language impractical. Since viable law (and policy, for that matter) must satisfy Hart’s requirement of practical enforceability, the censuring of offensive language based on subjective feelings about its offensiveness cannot be a solid ground for censuring merely offensive discourse (Feinberg 1984–1990). It might turn out, moreover, that even if it were true that there are some genuinely offensive expressions which ought to be prohibited even in higher educational contexts, the law and public policy cannot institute prohibitions against such expressions due to overly complicated conditions in legal implementation—one such being difficulties with regard to First Amendment rights in general, and academic freedom rights in particular. This point is meant to emphasize Hart’s more general one about there being a requirement of good law that it be reasonably enforceable, and, I would add, consonant with established law and policies.18 However, there are other reasons to reject the argument for offensiphobia.
It is not only practically impossible for a faculty member to know a priori who, amongst all of her colleagues or students, might be offended by which discourse she might employ at a particular time and in a particular context, but every expression is potentially offensive to someone. This is a further development of the subjectivity problem facing offensiphobia. For example, to expand a point made above, the mention or use of “black” in reference to some faculty and students offends many of those who prefer to be referred to as “African Americans,” and the use of “African Americans” is offensive to many of those who wish to be referred to as “blacks.” If offensiphobia were implemented as either law or policy, university faculty (especially philosophers and ethicists) would then be effectively straightjacketed and could not express anything without fear of offending someone unless and until it can be shown that there is a set of particular offensive expressions which are fairly and non-arbitrarily proven to be legitimately censured due to their (not merely subjective) offensiveness (and genuine harmfulness). By this it might be meant that such offensiveness satisfy a reasonable person standard so that what offends a reasonable person might be deemed legitimately censurable. However, the complex fundamental subjectivity of what offends prohibits the establishment of such a standard. Or, to put it another way, those who concur with (1)–(3) in support of offensiphobia have the burden of devising a non-arbitrary means of distinguishing offensive from non-offensive expressions which can serve as the basis of the morally legitimate censuring of offensive expressions because they are also genuinely harmful. Yet it is precisely this burden which is the Herculean task of offensiphobia.
After all, the presumption that people have a right to not be offended and that certain kinds of offensive language ought to be censured must come to grips with the fact that the college or university environment is more diverse than their narrowly construed notion of offensiveness recognizes. For there are several who are genuinely offended by those who believe that offensive language ought to be censured! Offensiphobia itself offends many in U.S. higher education. In such cases, it is not merely that such a person disagrees with others about what counts as being offensive, but that offensiphobia itself is genuinely offensive. Unlike the offensiphobe, however, the non-offensiphobe believes that offensiphobes have a First Amendment and moral right to freely express their offensiphobia, though they hardly have a right to act on it by enacting laws or policies which would by way of their enforcement violate the rights of others to freedom of expression by setting back their legitimate interest in autonomous freedom of expression within the bounds of First Amendment law noted above by Feinberg.
For instance, for every middle-class student or faculty member, black or not, who decries either the use or mention of “nigger” in any of its variations (including those which lack racist animus), there are those of us from sub-middle-class backgrounds, the underclass,19 who are accustomed to hearing, using and mentioning “nigger” and its variants and are not offended by many of its uses or mentions. Should what offends only some by the lights of some (and often mostly privileged out-group members) be censured simply because it is language which offends some (often mostly privileged out-group members) by their own lights, regardless of the fact that so many others are not offended by it and even welcome the very same expressions as they are expressed in the very same contexts? Let us not forget that it is precisely many offensiphobes who advertise their putative desire for campus “diversity.” Perhaps such “diversity” is not really intended to include the expression of views or language which makes either their student clients or themselves feel uncomfortable—even if some such expressions originate from some members of “protected” groups themselves. The ironies of offensiphobia in U.S. higher education are remarkably multifaceted. Perhaps the real message that offensiphobes in higher education seek to express is that they desire “diversity” within the narrow confines of their own privilege. Yet it is a serious question as to whether or not genuine diversity respects any such privilege.
Among other things, offensiphobia provides a carte blanche of censorship to those in power and often violates First Amendment protections which form part of the very core of human autonomy and development—especially for members of the underclass. Indeed, U.S. blacks have undergone one of the most horrendous and long-term evils in human history by way of the “peculiar institution” of slavery and Jim Crow. Ironically, many who profess that they condemn the enslavement and Jim-Crowing of said blacks seem to countenance, though unwittingly,20 the enslavement of the very minds of black folk in the U.S..21 It would seem to a reasonable person that one ought to steer clear of any belief or policy which would even approximate that which would further oppress U.S. blacks as it vitiates blacks’ legal and moral rights to express themselves autonomously and within the legal and moral parameters mentioned above. Are not blacks, regardless of socio-economic status and privilege, legally and morally entitled to express themselves as they please subject to the legal exclusions noted above? Additionally, as also noted above, let us be ever mindful that the very subjectivity of what merely offends undermines the legal viability and moral justifiedness of any proposed law or policy to delimit that which merely offends especially in higher educational contexts.
Moreover, virtually any expression can cause offense to someone or other, even if it is a scientific fact, a logical fact, a conceptual fact, a religious fact, etc.. This is especially the case when it comes to the teaching of ethics-related subject matter. Cognitive dissonance itself is offensive to many people. Are not many people offended by the cognitive dissonance which accompanies moral arguments which imply that such folk themselves are unethical? Furthermore, as intimated above, there are some who are offended at those who are too easily offended and, one might add, with those who paternalistically placate those who are so offended. Yet what is the reasonable and rational manner by which to distinguish the standard of genuinely censurable offensiveness in order to form the reasonable basis for the censorship of offensive expressions? Offensiphobia seems to provide little, if any, answers to these questions plausible answers to which its proponents owe as a matter of their satisfying the burden of argument for the censuring of offensive expressions in U.S. higher educational contexts.
So the fundamentally complex subjective nature of what offends receivers of discourse condemns the censuring of offensive discourse to impracticality and unfairness (the latter because it is morally arbitrary) as to what ought to count as genuinely offensive and worthy of legitimate censorship. What counts as being offensive according to those who seek to censure beyond the scope of the legally unprotected categories of freedom of expression noted above ends up being morally problematic unless there is a practically viable manner by which to determine in a non-arbitrary manner what genuinely constitutes an offensive expression worthy of censorship. Assumed here is the plausibility of the claim that nothing which is morally arbitrary can serve as a reasonable basis for the prohibition of any discourse or expression. Let us further investigate this matter of freedom of expression and offensiveness in order to see if the supporters of the offensiveness argument for censorship (i.e., offensiphobia) have a reasonable case even if the complex subjectivity of offensive expressions and the distinction between harms and mere offenses is set aside. So even if it turns out that the offensiphobe can succeed in non-arbitrarily distinguishing between merely offensive expressions and harmfully offensive ones, what might be argued about the plausibility of offensiphobia?
Offensiveness, Intent and Paternalism
It is often stated that much of offensive language is that which is perceived to be racist. On this view, racist epithets are to be prohibited because they offend (some) others. Thus simply the expression of a merely racial word can draw the ire of many administrators, faculty and students and should, on the view under consideration (offensiphobia), be censured. As noted above, offensiphobia need not limit itself to fear of intentional offensiveness. One can fear even offensiveness which is unintended by those who express the offensive words.
However, offensiphobia is problematic because it ignores the crucial role that intentionality plays in the understanding of the meaning of language. A speaker’s or writer’s intention in her use of language is crucial to understanding her meaning22 (Grice 1957). Without understanding either the speaker’s or writer’s intention with regard to her expression, it is easy to misunderstand her meaning and categorize an expression as offensive when it in fact is not, but rather only in the minds of particular listeners or readers. Virtually anything can be “taken” to be offensive when it is not even intended to be offensive. And this is especially problematic pertinent to ambiguous words such as “nigga” and “bitch” and their cognates (Corlett 2005). When attempting to determine whether or not an expression is racist in content as opposed to merely racial,23 one must understand the intent of the subject with regard to the content of her expression. This is a crucial component to understanding the nature and function of racist language (Corlett 2003: Chapter 4; Corlett 2005). The same holds for offensive language more generally.
This linguistic fact about expressions and their meanings and the intent of speakers and writers poses a difficulty for the idea that certain expressions (such as “nigger,” “bitch” and their respective variants) ought to be censured merely because they offend. For example, “nigger” and its variants are often used by millions of U.S. blacks as cacophemistic (course, rough, vulgar), instead of disphemistic (pejorative), terms: “Hey my nigga, let’s go to the club….” or “You’re my nigga…..,” regardless of whether or not the term is directed at a black person. Thus what began as a solely disphemistic racist insult from many U.S. whites toward blacks has long since evolved into a more complex cacophemistic usage by many blacks toward mostly other blacks, but also toward some non-blacks in selected circumstances.24 This socio-linguistic fact runs counter to part of Feinberg’s analysis which lists “nigger” as a disphemistic term only25 (Feinberg 1985: 253, 258). And let us not forget that some of the finest comedians, literary talents and political leaders have used “nigger”: Dick Gregory’s book, Nigger and some of Malcolm X’s speeches come to mind here, among numerous other important works by James Baldwin and a host of other literary figures. Should the law or university policy censure either their works or references to them consistent with the above argument in favor of offensiphobia?
Moreover, many faculty and students in U.S. higher education often use “bitch” and its cognates in familiar cacophemistic, and not disphemistic, terms: “Hey bitch, what’s up?” And many homosexuals use “faggot” in similar ways: “Hey faggot! What’s going on?” How can such expressions in such contexts and with particular intent constitute sexist or otherwise offensive and legitimately censurable expressions when uttered in such ways and with such amiable intentions especially between in-group members? (Corlett 2005). Hence “nigger” and “bitch” and their respective cognates are not always disphemisms, though they are often either mentioned or used as cacophemisms. This is especially the case if the phenomenon of linguistic privilege is considered. For many subscribe to the view that certain words and their meanings are permissible within certain groups among in-group members (such as “nigger” and its cognates amongst many U.S. blacks). This linguistic complexity, when considered in the context of the intent of linguistic meanings, suggests the unreasonableness of those who seek to censure certain words which merely offend some. Once again, how are only certain words and not all words to be censured given the complex subjectivity of the range of meanings of various words and the fact that each expression is bound to offend at least someone at some time? How would the legal prohibition of such expressions be constructed in a non-arbitrary manner which would make such law enforceable and viable, as is required of good law? Again arbitrariness and enforceability stand as formidable barriers to the just and fair censuring of merely offensive expressions.
Offensivess, Censorship, and Paternalism
There is little doubt that the very hearing or reading of words such as “nigger” or “bitch” is offensive to many people because they construe them always as disphemisms, regardless of the fact that they are not always used, mentioned or intended thusly. As such, one of the core claims of offensiphobia seems to amount to the idea that these words and certain others are offensive no matter what the intended meaning and context and ought to be censured merely because they offend. As noted above, underlying this perspective is the implicit presumption that one has a right to not be offended and that the offensiveness of an expression is sufficient to censure it in higher educational contexts. But the implicit assumption that there is a right to not be offended and that certain offensive expressions ought to be censured in higher educational contexts is overly paternalistic in that it seeks to restrict the expression of such language by adults because it offends some persons. Yet a proposal such as this amounts to hard paternalism and is considered to be problematic because it lacks justification in that it violates basic human liberty rights, self-respect, respect for others, personal autonomy, etc. (Dworkin 2004; Feinberg 1984–1990). Moreover, the idea that offensive language ought to be generally prohibited is overly paternalistic in that it restricts the freedom of adults in university contexts from merely offending others (in ways which do not fall under the categories of constitutionally unprotected expressions)–including themselves! And this line of reasoning may even assume for the sake of the argument from offensiveness stated above [(1)–(3)] that there is a right to not be offended that it is not morally arbitrary in setting the bounds of what counts as being offensive.
The attitude supporting censorship of such language expression is often so paternalistic that when the subjects of such language become the targets of censorship because of either their mention or use of it, it can become elitist in that (as noted above) it seeks to in some cases prohibit faculty or students “of color” and from perceived “disadvantaged” backgrounds who are accustomed to using such language from expressing themselves cacophemistically even when there is no intent on their parts to offend. Imagine a case wherein two black students are conversing on campus and using “nigga” in congenial reference to each other, and a white administrator and a white faculty member pass by together, and, in hearing the students conversing thusly, they are deeply offended—even traumatized. Let us refer to this as the “Case of the Traumatized White Offensiphobes.” It turns out that what they heard was one student expressing to the other: “Nigga, you da shit!” and the other student replies: “No, YOU da shit, nigga!” as they both laugh and reminisce about how well they are doing academically. Should the students in question be thereafter prohibited from using such language on campus? Do the deeply offended and traumatized white administrator and faculty member have a right to not be offended and traumatized? Does the Case of the Traumatized White Offensiphobes warrant positive answers to these questions?
The argument for offensiphobia holds that the administrator and faculty member in the Case of the Traumatized White Offensiphobes do have a right to not be offended and the students should be prohibited from thereafter using or even mentioning such words on campus. Yet what the white administrator and the white faculty member fail to understand is that the students had just complimented one another, essentially expressing what many whites might refer to as “high regard” for one another. Yet the offensiphobic administrator and faculty member, being ignorant of the genuine meanings of such expressions given their intent, are deeply offended and even traumatized in hearing them and as offensiphobes believe that they have a right to not be offended—and surely a right to not be traumatized! This is a kind of cultural imperialism exercised by many upper middle-class (i.e., privileged) faculty and administrators upon those of us who are accustomed to the use of such language without even intending offense. Examples like the Case of the Traumatized White Offensiphobes often result in censorship wherein those doing the censuring hypocritically insist from their standpoint of privilege that they are in favor of “diversity” in higher education and stand against, say, white privilege. But then such diversity is construed arbitrarily and rather selectively as it disregards the wider or underlying diversity of cultural backgrounds and language usage which results from them. The extent to which the perceived blackness of the students in the Case of the Traumatized White Offensiphobes plays a role in such decisions to censure them is an interesting likelihood. To the extent that that is the case, it would possibly indict the white administrator and faculty member as being racists in that they are, despite their predictable leftist denials, insensitive to the intended meanings of such black expressions. Ironically, in accordance with many U.S. higher educational policies, perhaps the white administrator and white faculty member in question, in answer to, say, their complaint filed against the students requesting that they be prohibited from expressing such things on campus, ought to be required to complete anti-racist sensitivity training as soon as possible and until they are cured of their racist attitudes. They might also need to be coerced to publicly apologize to the other black students on campus as part of their sensitivity training. Ironies run deep when it comes to leftist censorship in U.S. higher education. Perhaps they run deepest among the proponents of offensiphobia.
The hard paternalism and culturally imperialistic elitism in question is reminiscent of part of U.S. Supreme Court Justice William Brennan’s dissenting opinion [in Federal Communications Commission versus Pacifica Foundation, 438 U.S. 726 (1978) wherein the FCC won its case against comedian George Carlin’s use of certain words during a radio broadcast performance] wherein Brennan finds disturbing the Court’s “… depressing inability to appreciate that in our land of cultural pluralism there are many who think, act, and talk differently from the members of this Court, and who do not share their fragile sensibilities.” Justice Brennan also writes of the Court’s decision that it represents “…another of the dominant culture’s inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.” Indeed, one scholar put it thusly: “…words generally considered obscene like ‘bullshit” and ‘fuck’ are considered neither obscene nor derogatory in the [black] vernacular except in particular contextual situations and used with certain intonations” (Bins 1972: 82). Thus efforts to censure certain words from higher educational contexts is often socially, culturally, and paternalistically elitist, and this is hypocritical given that most institutions of higher learning are so quick to pride themselves in and advertise their commitment to cultural “diversity.” When such paternalism often involves whites suppressing the expressions of U.S. blacks whose right to freedom of expression are protected by established U.S. law, one wonders the extent to which such is an expression of anti-black racism, e.g., a kind of Jim Crow-ism of the contemporary era disguised as a means to “protect” such blacks from others–and themselves. The irony here is not lost on those of us who think deeply about the varieties of racism and the history of racism in the U.S. Academy. It is important to recognize how offensiphobia itself ironically offends many of the faculty and students it seeks to protect from offensiveness–and even from trauma.
Offensive Use Versus Offensive Mention
Furthermore, offensiphobia’s quest to establish reasonable grounds for a right to not be offended and the legitimate censorship of words which offend often runs afoul of the standard logical distinction between the use and mention of words (Anderson and LePore 2013; Corlett 2003: 75–78, 2005). When one uses a word, one generally intends for the meaning of that word to apply to the person targeted by the word. Thus if someone calls or refers to another as a “wetback,” one is using with intent (either disphemistically or cacophemistically) “wetback” to describe that other person. With requisite intent accompanying the expression, such use might properly count as being racist language. This underlies what happens when one calls someone a “wetback.” But when one merely mentions a word, then generally it is as if she places it in quotation marks and does not generally intend for meaning of the word to apply to another person.26 (Notice that the previous sentences in this paragraph mention “wetback” in attempting to instruct important facts about the use-mention distinction.) Thus the mere expression of a word does not suffice to instruct us about its meaning, and so it is impossible to discern the nature of racist language unless and until it is determined whether or not the word in question is being used or mentioned in, say, a pejorative manner and with a pejorative or animus intent. The use or mention of a term helps to determine the speaker’s/writer’s intent in either using or mentioning it. And the intent of the speaker/writer is crucial in determinations of what constitutes racist or sexist language.
For instance, when teaching one’s students about the ethics of racist language, one might invoke the use-mention distinction, along with other concepts and reasoning, in order to argue why one ought not to use “nigger” or any other racist epithet with racist intent and animus. But for the sake of clarity, one might carefully mention “nigger” (and various other racist epithets) throughout the discussion in order to argue the point in question that not every expression of “nigger” is racist due to variations among people with regard to intent, use and mention of the word. So one’s cautious mentions of “nigger,” “white trash,” “wetback,” etc., can be done in the context of what Feinberg refers to as “linguistic education” (Feinberg 1985: 384). Furthermore, even the use of them is protected by established U.S. law and norms of academic freedom, unless, for example, one’s doing so constitutes, say, “fighting words,” or the above-mentioned case of the black student being called a “nigger” while attempting to relax on campus and having a reasonable expectation of privacy in the sense of being left alone, and other such kinds of cases. But surely the mention of “nigger” in order to argue against its use with racist animus fails to qualify as an expression which, no matter how offensive to some, ought to be prohibited or censured. This serves as a counter-example to (and hence a refutation of) the offensiphobic view that the mere expression (including either use or mention) of “racial epithets” ought to be censured in higher educational contexts because they are offensive. Once again, one must bear in mind that even the use of offensive language is generally protected by the legal right to freedom of expression except in the cases of the categories of unprotected expression noted above. In the U.S., “hate speech” is and ought to be protected by law subject to the limitations of expressions noted above. One must be ever mindful that the right to freedom of expression does not guarantee against racist, sexist or other linguistic expressions of moral idiocy.
Based on the foregoing considerations, one must refrain from adopting a view of offensive expression which ignores linguistic complexities such as factors of intent, use and mention, context and circumstance, among other things. Furthermore, when such simplistically offensiphobic views of language are used by higher educational administrators and faculty to decide what constitutes racist or otherwise offensive language which ought to be censured, significant rights violations are often committed. In fact, the right to academic freedom is often violated for the sake of a psychologically and sociologically protectionist ideology which finds no legitimate place in U.S. higher education.
Thus many words have different meanings contingent on the contexts in which they are used and the intent, use and mention of them. Those in higher education who seek to censure words which offend but yet do not fall under the First Amendment categories of unprotected expression noted above often seek to impose on university communities singular interpretations and meanings of a select class of “officially” categorized (but never seemingly publicly listed) offensive words as if those words possess the same deleterious meanings in every context in which they are mentioned or used, and by a tremendously wide array of individuals across multitudinous social, ethnic, age, and cultural groups. However, it is often unclear that such words have singular meanings as such a view presumes, or that even if they do offend that they ought to be censured. Again, there is no good reason to believe that there is a right to not be offended especially in the pedagogical contexts of higher education. For that would seem to imply, among other things, that there is a correlative duty of others to not offend one. Yet for the reasons noted, it is unreasonable to think that there is a duty each person has to not offend.
Furthermore, not unlike the use-mention distinction, the above alluded to distinction between racist and racial language (Appiah 1990) is vital in determining whether or not a particular expression is racist and possible grounds for legitimate censorship in that it constitutes offensive language. Even if it is granted for the sake of this particular part of this discussion that, say, “white trash” constitutes racist use in this or that context and uttered by this or that person with this or that racist intent or animus, the mere expression of “white” or “black” or other such terms merely indicates that the speaker or writer acknowledges the reality of race or ethnicity. But merely acknowledging such is insufficient to constitute racist use as “white trash” might be expressed by one white friend to another in part to positively recognize their whiteness, not unlike the case of the two black students discussed above which in part recognized their blackness. And while as in the Case of the Traumatized White Offensiphobes several white administrators and faculty might complain that such students’ expressions should be disallowed because they use the language of racial division, the precise point here is that an attitude of “color-blindness” is itself suspect sometimes on racist grounds insofar as it seeks to minimize a person’s right to celebrate her ethnicity and color and all which accompanies them. Again, many offensiphobes seem to think that it is not racist to coerce other adults to conform to their ideology of color-blindness. Yet that very doctrine of color-blindness can often serve as an oppressive and racist reality in the lives of those of us who seek to affirm the totality of who we are. Often, it is those who seek to control others and accuse them of racism or sexism who are the underlying problem, even in racist and sexist ways. And one must understand that it is not a necessary condition of ones being a racist that she admit that she is a racist. Most often, one’s racist actions speak loudly for themselves for those who are not sufficiently hypocritically “visually challenged” to see it for and in themselves.
Furthermore, if it is counted as offensive that even racial language is always racist and offensive and ought to be prohibited in higher educational contexts, not even social scientists or other scholars would be able to mention categories of humans in order to discuss them without themselves being declared as being racist for doing so. For that kind of categorization offends many (even as the use or mention of “caucasion” and “American Indian” offends many). It is one thing to mention a category, it is quite another to refer to someone in racist terms (i.e., to use “white trash,” for instance, with racist intent and animus in reference to a white person). The offensiveness doctrine underlying the above argument from offensiveness [(1)–(3)] ignores this linguistic fact.
It is vital to remember, however, that even expressions such as “cracka,” “nigger” and “wetback” used with even the vilest contempt are, in most contexts,27 protected by not only the First Amendment but by many university policies insofar as such expressions constitute merely offensive expressions and are not directed at particular individuals. That is, such words are protected in classroom, research and service use or mention by, say, faculty so long as they do not target particular individuals or groups with racist animus. It is one thing, then, for a faculty member to say in class that “X is a bitch” or “X is a slant” so long as X is in neither case, say, a student in her classroom and as long as there is no animus expressed toward that student or any other of her students as any reasonable person might construe that as racist harassment. However, if, say, a black faculty member has a certain level and degree of positive rapport with, say, her black students, it might well be rather welcomed by them and by a particular student if the faculty member refers to said student in her class, face to face, as “my nigga.” But in such cases, there is, let us assume, no racist animus. Instead, there would, among other things, be positive racial/ethnic recognition and respect. Yet even if some in the classroom are offended by the words, it is important that the one(s) expressing them do so without racist intent. Or, when, say, a black comedian such as the early Richard Pryor, Redd Foxx, Dick Gregory, Bernie Mac, Katt Williams, Dave Chappelle, Eddie Murphy, Eddie Griffin, Tracy Morgan, Chris Rock, etc. mentions or uses with or without racist animus “nigga” in reference to another black person, even when used with contempt toward that person, it is nevertheless protected by established U.S. law, and ought not to be classified as falling under one of the unprotected categories noted above. But if that expression carries over to threats of violence and such, then the line of legal and ethical protection has been crossed and the expression is no longer merely offensive, but harmful in that persons have a legitimate interest in not being the target of violent threats. This in part explains why merely offensive language ought not to be censured, while expressions which constitute more than mere offenses may be censured because they constitute harms. Threats of violence are not merely offensive, they constitute harmful expressions.
However, we must continue to delve more deeply into this matter in order to understand the reasonableness or lack thereof of those who seek to censure merely offensive expressions in higher educational contexts. Given the previous lines of argument, offensiphobia has been rendered implausible. Yet there are further reasons to reject this popular perspective in U.S. higher educational contexts.
Censuring Merely Offensive Expressions as Self-Defeating
As already noted, given the complex and subjective nature of what offends, any attempt to prohibit merely offensive expressions in higher educational contexts confronts the fact that every expression in one way or another might well offend someone sooner or later. But this fact implies that there would be mostly silence in such institutions if those who seek to prohibit merely offensive expressions have their way, and it would become rather difficult, if not impossible, to conduct published research or teaching in most any area of academic learning (especially in ethics-related areas).28 The very mention of “abortion” offends many, as does the very mention of “rape,” “terrorism,” etc.. Yet an offensiphobic policy would not only make such institutions less efficient, it would possibly render them useless and impotent at least in certain crucial respects. This is often referred to as the “chilling effect” on freedom of expression and academic freedom. Several Democrats, Republicans, Socialists, Independents and others would be offended by many of one another’s expressions and views, many atheists and agnostics and theists would be offended by many of one another’s expressions and views, various other schools of thought would to some degree or another follow suit. Indeed, to a large extent, this is already the case in many U.S. universities and in the U.S. public at large. This re-emphasizes the above points about both the fundamental complex subjectivity and unenforceability of offensive expressions and the censuring of them in higher educational contexts.
Furthermore, how much offensiveness is sufficient to count as an expression’s being legitimately censured under such a view or proposed policy? To this point of the discussion, it has been assumed that any degree of offensiveness counts as being sufficient, according to offensiphobia, to legitimately censure an offensive expression. But what if one adopts a more nuanced version of offensiphobia according to which only a certain degree and kind of offensive expression is to be censured?
It turns out that many of those who seek to prohibit the offensive expressions of some seek to do so largely to protect their own sense of what offends. To the extent that this is true, then it politicalizes U.S. university campuses, stifling open-ended inquiry especially of the ethical variety. And this kind of thinking is not only sometimes elitist and racist (as noted above), but it constitutes a logical fallacy of special pleading in that there are no doubt words that they themselves use which offend others, yet they themselves want to censure certain expressions which offend themselves or some other group they themselves support. On this ground alone, then, a proposed policy which prohibits certain kinds of expressions instead of others is to be rejected because it fails basic tests of reasonableness and fairness. Those who seek to censure expressions which merely offend owe us an analysis of what it takes to offend in the relevant sense, and why a particular level and kind of offensiveness is necessary and sufficient for legitimately censured expression. Absent such an analysis, the call to restrict expressions other than those which fall under the unprotected categories defined by the U.S. federal courts amounts to excessive bias concerning what counts as offensive and censurable and is, as noted above in the context of a different objection to offensiphobia, morally arbitrary.
Censuring Offensive Discourse and Code Words
Furthermore, some religious people believe that it is sacrilegious to write or utter any name of “God” or “Lord,” etc.. Instead, one ought to express “G-d” or “L-rd,” etc.. So consonant with the belief in and movement toward censuring expressions which offend (assumed here is that sacrilegious expressions are offensive), even fellow theists should not pray or discuss their religious beliefs containing “God” or “Lord,” etc. without offending members of that other sect of believers. But as noted above, several persons are deeply offended by the very attempt to censure such offensive expressions themselves! For many religious people, mentioning or using “God” just is part of the core reality of their religious experiences. For example, for an evangelical Christian, one must “call on the name of the Lord Jesus to be saved.” Thus for the evangelical Christian, the very salvific experience depends on calling out “Lord,” not “L-word”! But this core belief and practice would offend those who deem it offensive to write or say “Lord.” Should evangelical Christians then be informed that in higher educational contexts such as, say, fellowshipping on campus, that they cannot—even in the privacy of their own residence hall rooms–exercise their religious liberty right to express “Lord” or “God” in that it would offend certain others? Of course not. So the attempt to censure merely offensive expressions by way of requiring the use of code words in place of words which offend falls on its own sword, or, if one prefers a bit of William Shakespeare, it is hoisted by its own petard!
Applying the foregoing point to the languages of racism and sexism, many of those who support the censorship of offensive discourse do so by invoking the use of code words: “n-word” for “nigger” and its cognates, “b-word” for “bitch” and its cognates, etc.. As we can see, there is a parallel move to code offensive words as there is by certain religious persons to declare as offensive certain words/names and seek to censure them. Indeed, many “hate groups” have already caught on to such a scheme and are developing their own counter-schemes of code words in order to use everyday words which are deemed perfectly acceptable by those who seek to restrict offensive expressions to “stand in” for categories of hated persons. For them, “skittles” refers to Muslims or Arabs, “bing” refers to persons of Asian descent, “google” refers to black people, etc. (Hughes 2016).29 So according to those who desire to censure language which merely offends, then should not the code words also be prohibited? And if not, why not, as they have the exact same meaning as the words they represent in code form (otherwise, they would not be able to “stand for” the words they code)? Yet eventually virtually every word could become an offensive code word by some group or individual or another. This slippery slope leads to the prohibition of nearly all human expressions because they offend or are likely to offend someone or other at some point of time. Those who seek the use of code words which allegedly do not offend instead of the words they allegedly represent owe us a solid explanation without question-begging bias and arbitrariness concerning how this problem is to be avoided.
According to Gottlob Frege, whatever expression effectively represents another can be substituted absent loss of cognitive meaning for that other expression because the respective words are synonyms, having the same meaning or pointing to the same referent. This is part of the essence of Frege’s law of substitutivity of co-referential terms (Salmon 1986: Chapter 6). Given Frege’s law, then the use of code words for offensive words, whether “n-word” or “google,” become offensive and racist in content in that there is an equivalence relation between the informational contents of each offensive word and its coded version, and vice-versa. Thus the proponent of offensiphobia must provide a plausible justification of why the code words (both current and future ones) should not also be censured as each (the racist epithet and the code word representing its meaning) is expressed in a racist and thereby offensive manner. Once again, the expectation or demand for the use of code words in order to attempt to avoid the use of offensive language (itself a form of censorship) is arbitrary as it is reduced to the subjective “official” approval of the use of certain code words over others absent a non-arbitrary justification. Logically and semantically speaking, the code words themselves become, if they truly represent the content and meaning of the words for which they are codes, offensive and should also be censured according to those who favor the censuring of offensive language. This semantic consideration further demonstrates the unreasonableness of offensiphobia. However, there is a related difficulty confronting those who seek the censorship of particular offensive words on college and university campuses.
The Translation Objection to Censuring Merely Offensive Expressions
As if the preceding considerations were insufficient to render offensiphobia absurd and unreasonable, offensiphobia in higher educational contexts faces yet another difficulty, namely, that of explaining in a reasonable manner whether or not offensive expressions translated into a language which the offended parties do not even understand should be prohibited. This translation objection to the offensiveness argument [(1)–(3)] is related to the problem with the use of code words. The dilemma is as follows: If the proponent of censuring offensive expressions answers that only expressions which are understood by the offended person(s) ought to be prohibited, then all that the offending parties need to do is to translate their offensive expressions into a language which the offended person does not understand in order to have their expressions avoid censorship. But this horn of the dilemma still faces the numerous legal, policy-related, logical and ethical problems noted above. However, if the proponent of censuring offensive expressions answers that even offensive expressions which are translated into languages not understood by those who are offended by them in their respective native languages ought to be censored, then a question arises as to how one can be offended by an expression which one does not comprehend due to the fact that one does not even understand the language(s) in which the “offensive” expressions are expressed. For instance, “puta” in Spanish often means “bitch.” However, what if a Chicana calls a particular white person a puta and the white person does not understand that “puta” means “bitch” and has that intended meaning in said context by the Chicana who uttered it? Has the intended target of the insult been offended? If so, in what manner? But even if there is a reasonable (non-ad hoc or non-question-begging) reply to this vexing question, this horn of the dilemma is also confronted by the myriad of difficulties noted above.
Moreover, even when offensive expressions in, say, English are translated into other languages, they are often times either not offensive or not as offensive either because of the cultural differences in either using or construing the expressions or because a successful translation is not possible from, say, English into, say, Spanish. This implies that any effort to prohibit offensive expressions which are not able to be successfully translated into offensive language (and in the same offensive manners) in, say, English, is unreasonable because such an effort would then prohibit (in that other language) what is not offensive and the law or policy would reach too far. And what about deliberate or non-deliberate novel or mispronunciations or abbreviations of offensive expressions such as “beaaatch” for “bitch” or “nig” for “nigger,” etc.? Are they to be prohibited also? And what would be the non-arbitrary, non-ad hoc justification for such a policy?
As mentioned above, one fundamental problem with offensiphobia is that it violates personal autonomy. To the extent that personal autonomy is valuable and a right, persons are to be left alone to express themselves non-violently and so as not to otherwise harm others, and this includes one’s being left alone to struggle with the expression of ideas which may offend everyone, including oneself. So long as these offenses do not amount to harms or fall within the legal categories of unprotected expression, then they must be protected by federal and state laws and policies, and public college and university policies. However, even if there is a social consensus on which expressions are permissible and which are not, such a perspective might be mistaken, and legal or policy prohibition “inhibits critical dissent and prevents progressive improvement” (Feinberg 1980: 83). Perhaps the argument for offensiphobia neglects this factor as a genuine desideratum of a decent and civil society. It would seem that, in addition to the various practical problems with offensiphobia, it also disrespects the intrinsic value of personal autonomy which sees freedom of expression as a good in and of itself—even if each and every one of the aforementioned objections to it can be successfully answered. This implies that offensiphobia is intrinsically unattractive to those who place a high value on personal autonomy. While this idea is hardly novel, it bears repeating during these times of offensiphobia in U.S. higher education.
Objections and Replies
It might be argued that my objections to offensiphobia do not consider with sufficient seriousness a more philosophically formidable perspective on the regulation of hate speech. As discussed above, it might be argued that it is not that it is merely offensive expression which is at issue. Instead, it is that certain kinds of expressions actually constitute genuine harms. It is important to distinguish, it might be argued, between the merely offensive expressions about which I am concerned, on the one hand, and genuinely harmfully offensive expressions, on the other. The offense of, say, depicting Mohammed as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity. But defamation of a minority group, through hate speech, undermines a public good which can and should be protected, namely, the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home (Waldron 2014).
In reply to this line of thought, several points must be made. First, it employs the fallacy of special pleading in that it seeks to protect the alleged rights of minority groups in society from allegedly harmful expressions while violating the First Amendment rights of everyone—including the members of said minority groups themselves (many blacks calling other blacks “niggas”)!—to express themselves as freely and as offensively as the law permits. Secondly, that certain expressions constitute libel is not protected by First Amendment law, as we saw above. Libel is a form of defamation and is exempted from protection under federal law in the U.S. Libel entails, among other things, expressing a false statement with intent to ruin a person’s or group’s reputation. But it exempts opinions. So what of statements (opinions) made of others which are believed to be true by the one(s) expressing them, such as in the examples imagined regarding passionately expressed hate speech? Is the concern in question able to provide a viable manner by which to distinguish between genuine and libelous expressions wherein genuine ones require a person to sincerely assent to what is being expressed? There is little doubt that many of those who are proponents of neo-nazism truly believe what they express about Jewish and various other peoples. So is the concern in question seeking to prohibit all expressions (including opinions) which are false but even those which are believed sincerely? If so, this would wreak havoc throughout higher education as everyone (even leftists!) at some point or another would have to be censured in some way or other insofar as they believe a false proposition here or there, now and then. Who or what would judge the veracity of such opinions? The federal government has demonstrated through its Title IX Industrial Complex its incompetence in addressing such matters (Corlett 2018). And what would be the punishment for repeatedly expressing merely false but offensive and putatively harmful expressions? Will either atheists or theists have to be censured because so many on either side of the existence of God debate are genuinely offended and claim to be harmed by the very expression of the opponents’ ideas which are believed to be false? One can see that this concern cannot and ought not to be accommodated by a reasonably just legal system and in higher education because it implicitly holds a position which cannot be implemented without absurdity resulting throughout higher education in particular and throughout a reasonably free and just society more generally. This is one more reason to believe that offensiphobia is itself offensive, both legally and morally.
Moreover, while the objection in question employs the harm versus offense distinction, in doing so it begs the important question as to whether or not certain expressions genuinely constitute harms. Using the locution “hate speech” to describe certain expressions which one finds ought to be censured by law appears to be little more than a sleight of hand to use the language of offensiphobia in order to bully one’s way philosophically through a complex problem. But language such as “undermines a public good which can and should be protected, namely, the basic assurance of inclusion in society for all members” assumes what requires sound supportive argument, to wit, that it is genuinely a public good where all societal members are not offended in particular ways, such as feeling humiliated or discriminated against when leaving one’s home. But how do we know, given the importance of the subjectivity of the intent and meaning of expressions, whether or not it is reasonable for one to feel humiliated or feel discriminated against as the result of experiencing such expressions? And even if a version of the reasonable person standard of interpreting such expressions can be discerned, at which point of the slippery slope does the law distinguish between “hate speech” and criticism? And even if the criticism is factually false, why should it not enjoy First Amendment protection just as a person’s adopting false claims in the general process of learning in a college or university? Should not an administrator, faculty member, staff member or student be permitted to express anything except that which falls under the categories of unprotected expression? Should not a faculty member be able to publish the claim: “Many zionists are reminiscent of nazis in the sense that each thinks that ‘their’ people are special in the eyes of God. Each of the groups is racist in this way and to be condemned on moral grounds”? Should not anyone affiliated with a public college or university be permitted to make such a claim? Yet several persons would consider such a claim highly offensive and even incendiary. But the fact that no reasonable person would think thusly about such claims makes it unreasonable to censure such expressions. And this is true no matter how much many folk think of such claims as constituting “hate speech.” The right to freedom of expression, including rights to academic freedom, should never be violated due to concerns about how deeply offended anyone is about anything. “Hate speech,” even when it is well-defined (Corlett and Francescotti 2002), is and should be protected expression under established U.S. law and solid college and university policies which are consonant with said law.
But the concern in question might press matters further, insisting that, say, the use of “nigger” directed at or used in hateful reference to U.S. blacks ought to be legally prohibited because it harms the blacks against whom it is directed or aimed. Words which wound ought to be censured. For they are both offensive and harmful.30
In reply to this concern, it is helpful to remember the Feinbergian definition of “harm” as the “setting back of a legitimate interest.” “Legitimate” is important here, as it appears that the concern begs the question of whether or not there is a legitimate interest or right to not be offended or to have certain words not expressed about either themselves or others. In what sense is the offended person more than offended (i.e., harmed) by mere words no matter how hatefully expressed? Is this just another way to defend offensiphobia by insisting that one has a right to not be deeply offended? If so, then this seems to take the argument right back where we began in terms of offensiveness. For the very same considerations which make offensiphobia morally and legally implausible with respect to mere offenses apply as well to such putative offensive harms. It seems as though this concern is attempting to suggest that the expression of hate causes harm. Yet while the expression of hate might in many cases lead to the feeling of being harmed by many, it is far from clear that there is a causal link between hateful expressions, on the one hand, and genuine harms, on the other. Hurt feelings caused by hateful expressions do not amount to the causing of genuine harms in the requisite sense. Even if a casual link between hateful expressions and genuine harms could be established, would it not include hatefully offensive expressions such as “Those goddamn ignorant Christians need to wake up and see that there is no God!”, or “Those fucking creationists can go to hell!” or “Those Republicans can fuck-off!” or “Trump is not my mother-fucking President!” or any number of other opinions which are uttered by many leftist academics throughout the U.S.?
Ironically, increasing numbers of college and university faculty feel hurt (“harmed”) by seemingly any kind of criticism of themselves or others they like, though many such persons no doubt register their own passionate disapproval and even dislike of those who do not share their own views on politics and society. So how is the law to distinguish between genuinely censurable expressions and those which would not constitute “hate speech”? One of the fundamental difficulties with such a view is that it assumes that certain expressions constitute genuine harms when it is unclear that they do. It is one thing to experience a feeling of hurtfulness in hearing or reading offensive expressions. It is quite another thing to genuinely, as a reasonable person, experience a rights violation (or a harm) which is a setback of a legitimate interest. Not everything which produces a feeling of hurtfulness or profound offensiveness constitutes a rights violation and a setback to a legitimate interest. And simply repeating, even loudly, that X constitutes hate speech and a harm does not make it such.
In further reply to the concern in question, the very issue at hand is whether or not anyone has a moral right to not be offended, one which ought to translate into a legal right to not be offended. And the previous line of argument throughout this paper is designed to draw attention to numerous problems facing offensiphobia in any of its permutations. That an expression conjures even profound feelings of hurt or offense is insufficient reason to infer that one has a moral right to not be offended and that one ought to have a legal right to the same, correlated with a duty of others to refrain from offending one. There is no question that some expressions constitute genuine harms, namely, ones resulting in defamation, invasions of privacy, provoking retaliatory violence, fighting words, etc., as noted above. But notice that none of these categories of unprotected expression pertain to mere feelings of being offended. Nor do they include expressions which seriously offend (even traumatize) but do not harm. And while there is a spectrum of mere offensiveness on the one hand, and extreme harmfulness on the other, with various examples of expressions which more or less offend/harm, it is the offensiphobe, no matter what her version of the position, who bears the sole burden of argument in establishing within the bounds of reason alone that there ought to be an expansion of the extant First Amendment categories of unprotected expression. That this might be accomplished is surely a logical possibility. However, what one seems to encounter in recent decades are unreasonable attempts to foist on others alleged new categories in order to protect certain peoples from certain expressions deemed by many to be worthy of legal censorship.
To those who might still argue that one does have a legitimate interest in not being gratuitously offended in that one’s well-being can be objectively (and subjectively) set back by such action,31 it might be replied that at most this is a moral right. But that it can be effectively translated into a legal right is part of what the above objections to offensiphobia challenge. However, even if it can be effectively legalized, it is unclear whether or not there is such a moral right to begin with. For while it seems reasonable to think that we have an interest in not being gratuitously offended, it is unclear that we have a legitimate interest in the same. Consider Plato’s Socrates and how he often criticized his interlocutors to such an extent that some were humiliated by his refutations. Were some of them not made better by such embarrassment—even though they sometimes, if not always, seemed to suffer humiliation absent the betterment? Since when did one have a legitimate interest in not being offended, especially given that one might often feel offended when one is forced by a good criticism to abandon my long-held position on some issue of deep concern to oneself? So while my personal pride might have a stake in my not being offended, my personal well-being might well be enhanced by it—and at the most unlikely of times. Personal growth sometimes accompanies the experience of one’s being offended, that is, if one is sufficiently open-minded to, as Socrates urges, “follow the argument wherever it leads us,” no matter how offended we are at the truth of the matter. Cognitive dissonance must be embraced, not avoided, in order to strive toward the freedom which the pursuit of truth and justice provides.
If the arguments in this paper against offensiphobia in higher education are plausible, then the very ideas that there is a moral right to not be offended and that there ought to be a legal right to the same and that offensive expressions ought to be censured are replete with numerous seemingly insurmountable philosophical difficulties and have effectively relegated offensiphobia to the scrapheap of viewpoints in search of respectable rational support. Academic freedom is a right (or cluster of rights) which falls under the right to freedom of expression. And there are categories of unprotected expression based on the U.S. Supreme Court’s and other U.S. federal district courts’ interpretations of the First Amendment. Since academic freedom is a species of freedom of expression, then it would follow that the right to academic freedom, as broad as it is, does not protect the expression of language which falls under the unprotected categories of freedom of expression noted above. This implies that my concept of the right to academic freedom is not one of an absolute right. Instead, the right to academic freedom is a liberty right which trumps attempts to censure freedom of expression in higher educational contexts which do not fall under the unprotected areas of expression. For example, calling (use with ill intent) a particular white student or colleague “white trash” is unprotected insofar as, for example, it might be intended to provoke retaliatory violence and/or have no educational value. But merely mentioning, for instance, “white trash” in order to argue why one oneself does not and why others should not use the expression should be protected from censure as there is a transparent educational purpose for doing so.
Thus it is not the case that my argument assumes that the right to academic freedom is absolute. But it does assume that it is a powerful consideration which lies at the bedrock of a well-functioning college or university. For without it, normative ethics cannot even be taught due to the pervasiveness of the content of the course offending someone or other, and several other normatively-infused areas of teaching and research cannot thrive. Moreover, such censorship robs faculty and students of their intrinsically valuable dignity, self-respect and their liberty to express themselves within the boundaries of respecting others’ rights to not be harmed, and their autonomy to determine for themselves by way of personal reflection on and exploration into what they ought to believe, and why. Implicitly insisting without adequate argumentative support that people have a right to not be offended results in a disastrous higher educational context wherein administrators, perhaps some well-meaning, are driven by a problematic ideology which disrespects the longstanding right to academic freedom and its values.
It is clear, then, that given various facts about established law, semantic and moral principles, the belief in and movement to censure expressions which offend (but do not harm) in higher educational contexts is unreasonable. When certain words offend even when they are merely mentioned in order to argue why they should never be used with racist or sexist animus, this is a clue that a policy censuring the expression of such words is unreasonable. Furthermore, when many faculty and students are offended by the fact that many others are merely offended with the expressions of certain words selected without arbitrariness, this is a clue that an ideology is at work, not reasonableness, when it comes to the censorship of such expressions. Ironically and sadly, offensiphobia itself, replete with its tactics of censorship and perhaps even motivated by seemingly obsessive and perhaps even pathological control over others, fosters a social environment of nothing short of fear itself wherein most people, even in higher educational contexts, become unnecessarily troubled that whatever they might express (even with good intent) might offend others and will incur the wrath of offensiphobes often in positions of authority absent adequate accountability. Indeed, offensiphobia might in part be the result of many to shape public policies in order to protect those who suffer from anxiety disorder, borderline personality disorder, or some other mental illness which makes it such that people suffering from such mental illnesses find it traumatizing to endure offensive expressions protected by established First Amendment law and academic freedom. But if many suffer from mental illness which prevents them from coping reasonably with offensive expressions which are protected by First Amendment law, it is a misguided strategy to attempt to force the unreasonable delimitation of the right to freedom of expression in order to address such mental illnesses. It is the role responsibility of U.S. university administrators to carefully explain to their respective communities of faculty and students why no one has a right to not be offended and what this implies for higher education. This essay constitutes a propaedeutic for this purpose in order to transform this widespread problem into a teaching moment for higher educational administrators to begin to grasp and properly implement the protection of the fundamentals of established First Amendment law, public and university policy, and of academic freedom.
Finally, and rather importantly, one ought never to forget that simply because one has a right to something does not imply a duty to exercise said right (Feinberg 1980). Responsible persons exercise caution in the exercise of their rights, as there is a time and place for everything. So that the First Amendment and federal law and often state laws and college and university policies at public institutions empower one with certain guarantees of what they may express, it might not be an optimal time or circumstance to express this or that. And respect for persons might suggest that one ought not to express something either in certain circumstances or at certain times, or ever at all. As Feinberg states: “…right-holders are not always obliged to exercise their rights. To have a right typically is to have the discretion or ‘liberty’ to exercise it or not as one chooses” (Feinberg 1980: 156). But the wisdom of exercising rights is insufficient reason to seek to violate rights or to presume that the right to freedom of expression is not so vital as to expect persons to not offend others—even harshly. This is especially the case with regard to the excuse of protecting certain personal sensibilities from offensiveness. While many insist to the contrary and without adequate argumentation and even in light of the foregoing reasoning that all citizens in a “civil” society must be free from experiencing certain kinds of offensiveness, that one might be offended—even misrepresented by one’s own lights or by the lights of others—is hardly a good reason to seek the censorship of adult expressions (except those falling under the unprotected categories) especially in public higher educational contexts. It appears to amount to little more than an articulated desire that everyone express themselves in manners suited for neo-puritans and the priggish, both left and right, who prefer an allegedly “more dignified” and “civil” mode of communication.
Offensiphobia has a long and infamous history. It was a version of offensiphobia which inspired Meletus to trump up charges that Socrates was an atheist and corrupted the Athenian youth, each a capital offense in Socrates’ Athens. But even if the false charges were true, Socrates had a moral right to believe whatever he wanted to believe about the existence of God without being censured, much less executed, for it. Moreover, it was a version of offensiphobia which led Caiaphas and the Sanhedrin to cajole the Roman authorities to execute Jesus of Nazareth, and it was a version of offensiphobia which inspired Elijah Muhammad of the Nation of Islam to silence, and some believe, order the assassination of, Malcolm X. And it was highly likely offensiphobia which inspired the respective assassins of Martin Luther King, Jr. and Medgar Evers. Offensiphobia has inspired some of the worst acts of human immorality. Now it threatens to continue to invade and infect the halls of Academe and it has a growing number of administrators, faculty, staff and students who support it.
I am grateful to an anonymous referee for The Journal of Ethics for reminding me of this fact, though it might be argued that, if the arguments of this paper are correct and given the unethical nature of offensiphobia, the law ought to protect merely offensive expressions with regard to all institutions (including private ones) whose administrators, faculty (by way of federal grants, fellowships, etc.), staff or students (by way of federal loans, scholarships, etc.) receive any federal funding whatsoever on the grounds that taxpayers ought not to fund institutions which do not abide by federal laws based (among other things) on the supremacy clause of the U.S. Constitution. This point about exceptions to the scope of the federal law is not taken up here as grounding it is not necessary for the overall plausibility of this paper’s arguments as they apply to freedom of expression in the context of state actors such as public higher educational institutions.
There is evidence which supports the claim that many such administrative actions and attitudes are coercively influenced by a 2011 “Dear Colleague” letter by the former U.S. President Obama-era Secretary of Education which threatened the loss of federal funding to colleges or universities which fail to comply with various mandates, some of which have had a deleterious effect on academic freedom for faculty (AAUP 2016). The 2017-present U.S. Secretary of Education, Betsy DeVos, has begun a process to revise various aspects of said policy letter, attempting among other things to restore faculty academic freedom and legally appropriate standards of due process with regard to Title IX matters on U.S. college and university campuses. Time will tell the extent to which these values are successfully restored. In the meantime, the U.S. Department of Education and the Office of Civil Rights have by way of said 2011 “Dear Colleague” policy letter to colleges and universities throughout the U.S. created what I shall refer to as the “Title IX Industrial Complex.” The “Title IX Industrial Complex” refers to the symbiotic relationship between the U.S. Department of Education and the Office of Civil Rights in their enforcement of Title IX laws and policies and higher educational institutions throughout the U.S.
Of course, non-verbal expressions can and do offend. But the focus of this paper is on expressed words.
By “U.S. blacks” and its cognates is meant those U.S. citizens of sub-Saharan African heritage whose genealogy traces back to the institution of slavery of blacks in the U.S.
I.e., indigenous Americans who were erroneously called “Indians” by certain explorers/invaders of the “new world”.
The moral hypocrisy of offensiphobia can be traced in modern times to the Industrial Workers of the World (Wobblies) who often proclaimed their own legal rights to freedom of expression in fighting what they deemed to be the evils of capitalism while simultaneously advocating and even seeking to violate the same rights of others (Rabban 1997: Chapter 2).
What makes matters worse is that, to this author’s knowledge, such college and university administrations never seem to publish a listing of the prohibited expressions so that anyone affiliated with said institutions can attempt to avoid expressions containing them. This makes it possible for administrators to wield rather unchecked authority in deciding what is considered to be offensive and thereby censured. Considerations of justice and fairness, one not unrelated to rights to academic freedom, seem to require that no such unchecked power ought to be permitted in higher educational institutions.
Long ago when I was a new Assistant Professor of Philosophy a senior and much wiser colleague pointed out to me that the primary purpose of the institution of tenure (historically) was to protect academic freedom. I am extremely grateful for that colleague’s taking his time to “school” me on this vital matter.
See, for example, Matal versus Tam (2017); Hardy versus Jefferson Community College (2001); and Cohen versus California (1971). Also see Shelton versus Tucker (1960); Keyishian versus Board of Regents of the University of the State of New York (1967); Doe versus University of Michigan (1989); RAV versus City of St. Paul (1992); Robert J. Corry versus Leland Stanford Junior University (1995); Adams versus Trustees of the University of North Carolina-Wilmington (4th Cir. 2011); and Demers versus Austin, No. 11-35558 (9th Cir. 2013). I am gratefull to a referee for The Journal of Ethics for alerting me about these latter cases.
For seminal philosophical analyses of the concepts of offensiveness and harm to self and others, see Feinberg (1984–1990).
For those who are tempted to think that offensiphobia is not merely the belief that that which merely offends ought to be censured but rather that which offends and is also harmful, see below for a discussion of this expanded version of offensiphobia.
It is not the aim of this paper to address what makes an expression of language offensive. It is, rather, to articulate the problematic nature of the position which holds that certain words are offensive and that this sufficient to ground the prohibition of such expressions.
Note that in order to not enjoy First Amendment protection, one must engage in one or more of the noted categories of expression either knowingly or intentionally, as each might be committed accidentally. Also see Gates and Louis (1993) for a similar account of categories of unprotected expression, though Feinberg’s was initially published in 1975. Also noteworthy is the fact that the U.S. Supreme Court has since 1975 seemingly added a category of unprotected expression, namely, the possession and distribution of child pornography. One reason for this prohibition is that it is a violation of a child’s right to privacy, a right a child cannot waive, that is violated insofar as the child is featured pornographically. Since expressions which constitute violations of privacy already belong to an unprotected category of expression, the creation, possession and distribution of child pornography is not a new area of protected expression. The creation, possession and distribution of child pornography violates the child’s informed consent as it is unreasonable to think that a child can grant informed consent to engage in pornography. In this manner, the creation, possession and distribution of child pornography constitutes a harm and is not merely offensive and ought to be prohibited by law. It also seems to fall under the category of unprotected expression which protects against invasions of privacy.
Various critical race theorists challenge this claim as it applies to society in general in that they believe, generally, that some words such as racist epithets wound and that, as such, they ought to be prohibited because they are harms (Matsuda et al. 1993; Hayman et al. 2002: Chapter 8). However, their respective arguments, if they are intended to apply to U.S. higher educational contexts, must come to terms with what follows in this essay, objections which undermine the core of any position which seeks to censure even the most offensive (but not genuinely harmful) language in higher-educational contexts.
Contrast Roberts (2010: 94) for different explanations cited for why the above sort of verbal harassment ought not to be protected by law, that is, why it is morally objectionable, namely, because it reminds others that the target of the racist verbal abuse is “fair game for further attacks” and that it produces “physical symptoms that are temporarily disabling to the hearer” of such words (Roberts 2010: 94). It is also disrespectful to the target of such racist words (Roberts 2010: 94). The problem with these arguments cited and discussed by Roberts is that neither of them serves as a sufficiently good moral reason to legally prohibit either the use or mention of such words. For one can imagine contexts in which even passionate philosophical criticism within the abstract field of logical theory could produce the very same results (making the target logician “fair game for further attacks,” “producing physical symptoms that are temporarily disabling to the hearer,” and that are disrespectful toward said logician). Yet would we think, even if the logician (say, a white logician) making the impassioned criticisms of the targeted logician (a black logician) that such words should be prohibited?
While the consequences of the racist insults Roberts cites are important and would prove sufficient for many of us to not use such insulting words, they are insufficient reason to prohibit such speech in that the law ought not to prohibit speech which merely has such offensive results. It is because in the Case of the Black Student the offensive person violates the black student’s reasonable expectations of privacy especially after she attempts without success to avoid the situation that the racist words hurled at her in that manner and at that time and place ought to be prohibited. As was explicated above, the U.S. law on freedom of expression protects and should protect mere insults that in certain contexts such as the one noted in the above example genuinely harm an individual, whether racist or not. In the Case of the Black Student, the student is the target of racist language which violates her reasonable expectations of privacy, thereby harming her in that it sets back her legitimate interest in her privacy. But not just any racist remark from a non-black to a black person ought to be prohibited, even if it entails racist animus. A book written by a white woman who seeks to demean and insult blacks is protected under freedom of expression law, no matter how untruthful and vile unless the words are, say, defamatory (recall that defamation is not protected by the First Amendment, nor ought it to be). Importantly, one reason for this is because no one is forced to read said book and so its effects can be avoided with reasonable diligence. And this holds even if the book influences some to adopt such false beliefs about blacks. Falsehoods, no matter how vile, are and should be protected by the laws of freedom of expression subject to the areas of unprotected expression noted by Feinberg. Yet the book in question, let us assume, is composed by an author who sincerely believes such views it contains to be truthful, thereby making its contents non-defamatory according to U.S. law.
By “established law and policies” is meant recently established law wherein the U.S. federal courts and the federal legislature have decided with reasonable consistency on such matters as, say, freedom of (verbal) expression. I largely assume, based on many cases which I have studied, that this is the case.
This term is borrowed from Lawson (1992).
“Unwittingly” in that I assume among other things a charitable interpretation of offensiphobic motives. Others would argue that offensiphobia is more sinister in its motives in holding that the motives of offensiphobia are intentional.
An example of this is former U.S. Vice Presidential “First Lady” Tipper Gore (a Democrat) who, during the Clinton administration, waged a war on rap music because she and others (largely privileged, middle-class whites) were offended by the lyrics of such music.
Professor Bernard Rollin reminds me that J. L. Austin, in the context of speech act theory, famously distinguished between the “illocutionary” (the aim of the expression from the perspective of the expressing agent) dimension of verbal expressions and their “perlocutionary” (how said expression is “taken” by its intended or unintended target) dimension (Austin 1962). The relevance of Austin’s distinction is that even if offensiphobes attempt to censure illocutionary expressions, it is unreasonable to hold someone responsible for offending others by way of the perlocutionary dimension of said speech act. And it is precisely this yet additional subjective aspect of the manners in which human expressions are often taken as being offensive which renders any law or policy which is offensiphobic to constitute law or policy which is not viable or enforceable in any practical, just and fair sense, as noted above.
For the distinction between racism and racialism, see Appiah (1990). More of this distinction will be made below.
A similar linguistic phenomenon is true of growing numbers of Asian Americans with respect to “slant,” a racist slur used against Asians by many non-Asian peoples. In fact, an Asian American musical group, “Slants,” was sued [Matal versus Tam (2017)] because of the racist history of its name in reference to Asian Americans by mostly whites. The group’s defense was that it has the right to freedom of expression to draw attention to anti-Asian American racism with the very name of the group: “Slants.” The group also seeks to transform the meaning of the racist slur into one of cultural pride for many Asian people:
For Slants founder Simon Tam, the name was chosen not to offend, but to take on stereotypes about Asian culture. He says the band is reclaiming a term once used as an insult and transforming it into a statement of cultural pride. “Words aren’t equipped with venomous impact on their own,” he said in an interview. “They have to be tied to motive and rooted in context.” But the U.S. Patent and Trademark Office didn’t see it that way. It refused to register the name in 2011, saying a trademark can be disparaging even if it’s meant to be used in a positive light. A divided federal appeals court handed the band a victory four years later, ruling that the law prohibiting offensive trademarks is unconstitutional (Hannanel 2017).
In Matal versus Tam (2017), the Court decided that it was incongruent with the rights of the First Amendment to delimit the Asian group’s desire to express itself by use of “Slants.” Whatever offends, the court held, is protected by the rights of freedom of expression. This implies that from the Court’s perspective there is no legal right to not be offended, contrary to the attitude of Plaintiff Matal.
A value-neutral fact about Joel Feinberg is that he was born and raised as a white middle-class Jew in the Detroit, Michigan area, but was likely not repeatedly familiarized with the complexity of how numerous U.S. blacks use “nigger” and its cognates. For several such blacks, “nigger” and its cognates are used cacophemistically, but not pejoratively as Feinberg and so many others presume. Even during Feinberg’s youth and early adulthood this was the case, though perhaps not as readily as in recent decades. This is relevant to the current discussion because many (surely not Feinberg) proponents of the censorship of certain offensive words face, as noted below, a problem (perhaps sometimes of a racist kind, ironically) with regard to their arguably curiously elitist perspective on censuring certain words which offend certain people (See note 18). It is a widely known fact that U.S. higher education is replete with administrators, faculty and students who hail from privileged middle-class backgrounds and who have middle-class values which seem to serve as at least a partial grounding for offensiphobia. So it is unsurprising that generally those of them who favor censorship do so while focusing on the censorship of only a select set of words which they themselves find offensive, and often with the knowledge that the rights to freedom of expression guaranteed by the First Amendment and even their own institutional policies of freedom of expression and academic freedom permit and protect said expressions. This is not a fallaciously ad hominem circumstantial argument, but a point about how limited a person’s understanding and experience can be when it comes to linguistic usage outside of the relatively narrow confines of one’s own ethnic group and socio-economic upbringing, and how in-group biases can distort one’s better judgment even in light of reasonable and prevailing established law and policies.
An exception would be if one were to express with racist animus, “’Wetback’ applies to you!”.
“Most contexts” in that if such words are used in a context intended to provoke retaliatory violence, or wherein a reasonable person would think that the use of such words could provoke the same, then such expressions would not enjoy First Amendment protection, consonant with the categories of unprotected expression noted above.
Bear in mind that many of those in U.S. higher education are often so thin-skinned and intolerant that they are critical of even mainstream research and teaching because of their perceived lack of radicality.
http://thenextweb.com/socialmedia/2016/10/02/racists-using-code-words-online-avoid-censorship/. Accessed on 6 Nov 2016.
I am grateful to a referee for The Journal of Ethics for pressing this concern, though I concur with said referee’s suspicion that what often underlies this line of thought is suspicious in that it attempts to censure whichever theories or views the offended one disregards.
I am grateful to an anonymous referee for The Journal of Ethics for making this point.
- American Association of University Professors. 2016. The History, Uses, and Abuses of Title IX. https://www.aaup.org/report/history-uses-and-abuses-title-ix. Accessed 1 July 2016.
- Appiah, K.Anthony. 1990. Racisms. In Anatomy of racism, ed. David T. Goldberg, 3–17. Minneapolis: University of Minnesota Press.Google Scholar
- Austin, J.L. 1962. How to do things with words. Cambridge: Harvard University Press.Google Scholar
- Bins, C. 1972. Toward an Ethnography of Contemporary African-American Oral Poetry. Language and Linguistic Working Papers, Number 5. Washington, D.C.: Georgetown University Press.Google Scholar
- Cahn, Steven M. 1986. Saints and scamps: Ethics in academia. Totowa: Rowman & Littlefield Publishers.Google Scholar
- Corlett, J.Angelo. 2003. Race, racism, and reparations. Ithaca: Cornell University Press.Google Scholar
- Corlett, J.Angelo. 2005. For All My Niggaz and Bitches: Ethics and Epithets. In Hip hop and philosophy, ed. T. Shelby, and D. Darby, 147–157. Chicago: Open Court.Google Scholar
- Corlett, J. Angelo. 2018. The title IX industrial complex and the rape of academic freedom. Journal of Academic Ethics.Google Scholar
- Corlett, J.Angelo, and Robert F. Francescotti. 2002. Foundations of a theory of hate speech. Wayne Law Review 48: 1–34.Google Scholar
- Dworkin, Gerald. 2004. Paternalism. In Philosophy of Law, 7th ed, ed. Joel Feinberg, and Jules Coleman, 293–303. Belmont: Wadsworth.Google Scholar
- Feinberg, Joel. 1984–1990. The moral limits of the criminal law, 4 volumes. Oxford: Oxford University Press.Google Scholar
- Feinberg, Joel. 1985. Offense to others. Oxford: Oxford University Press.Google Scholar
- Feinberg, Joel. 2004. Limits to the free expression of opinion. In Philosophy of law, 7th ed, ed. Joel Feinberg, and Jules Coleman, 379–395. Belmont: Wadsworth.Google Scholar
- Gates, Jr., Henry Louis. 1993. War of words: Critical race theory and the first amendment. The New Republic (September): 20–23.Google Scholar
- Hannanel, Sam. 2017. Justices to hear free speech clash over offensive trademarks. Associated Press (15 January 2017): https://www.yahoo.com/news/justices-hear-free-speech-clash-over-offensive-trademarks-125531388.html. Accessed 15 Jan 2017.
- Hart, H.L.A. 1994. The concept of law, 2nd ed. Oxford: Oxford University Press.Google Scholar
- Hayman, Robert L., Nancy Levit, and Richard Delgado. 2002. Jurisprudence classical and contemporary, 2nd ed. Minneapolis: West.Google Scholar
- Hughes, Matthew. 2016. Racists are using these code words on-line to avoid censorship. The Next Web: (http://thenextweb.com/socialmedia/2016/10/02/racists-using-code-words-online-avoid-censorship/. Accessed 6 Nov 2016).
- Kennedy, Randall. 2003. Nigger: The strange career of a troublesome word. New York: Vintage.Google Scholar
- King, Jr., Martin Luther. 1968. “I’ve Been to the Mountaintop,” speech delivered at the Mason Temple, Memphis Tennessee on 3 April 1968.Google Scholar
- Lawson, Bill E. (ed.). 1992. The underclass question. Philadelphia: Temple University Press.Google Scholar
- Matsuda, Mari J., Charles R. Lawrence III, Richard Delgado, and Kimberlee Williams Crenshaw (eds.). 1993. Words that wound: Critical race theory, assaultive speech, and the First Amendment. Boulder: Westview Press.Google Scholar
- Mill, John Stuart. 1865. On liberty. London: Longman’s, Green, and CO.Google Scholar
- Rabban, David M. 1997. Free speech in its forgotten years. Cambridge: Cambridge University Press.Google Scholar
- Rawls, John. 1971. A theory of justice. Cambridge: Harvard University Press.Google Scholar
- Russell, Bertrand. 1950. Unpopular essays. New York: Simon & Schuster.Google Scholar
- Salmon, Nathan. 1986. Frege’s puzzle. Cambridge: The MIT Press.Google Scholar
- Waldron, Jeremy. 2014. The harm in hate speech. Cambridge: Harvard University Press.Google Scholar