Abstract
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.
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Notes
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.
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I am grateful to Professors Thomas Maloney, Howard McGary, Paul Menzel, Jan Narveson, Rodney C. Roberts, Bernard Rollin and two anonymous referees for The Journal of Ethics for detailed and incisive critical comments on an earlier draft of this paper.
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Corlett, J.A. Offensiphobia. J Ethics 22, 113–146 (2018). https://doi.org/10.1007/s10892-018-9265-5
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DOI: https://doi.org/10.1007/s10892-018-9265-5