Offensiveness Analyzed: Lessons for Comparative Analysis of Free Speech Doctrines
The J. of INT'L & COMP. LAW at CHICAGO-KENT 2: 62-83 (2002)
22 Pages Posted: 10 Jan 2020
Date Written: 2002
This essay combines an observation of comparative law with a discussion of the issue of offensive speech. The clarifying example I will use is the comparison between the American and the Israeli doctrines of free speech.
One intricate question in the theory of free speech and its comparative study is whether
offensiveness of speech may, by itself, be a sufficient basis for its being silenced. To use what
became the paradigm of this dilemma, the "Skokie affair": how should a society respond to a
request by neo-Nazis to parade wearing uniforms and swastikas in a town predominantly
inhabited by Jews, when we foresee no violent incidents taking place?
The Israeli and American doctrines of free speech diverge on this issue: offensiveness per
se (albeit extreme offensiveness) may in Israel be a sufficient justification for prohibiting speech;
in the United States it is not. This seems to be a significant difference. However, one of the
central goals of this essay is to modify the interpretation we typically attach to such doctrinal
differences. We tend to assume that important differences in legal solutions reflect different
moral priorities, and, in that case, if one of the solutions is right the other must be wrong. This
dichotomous way of thinking may result in a unitary, occasionally simplistic, perspective on
appropriate legal solutions.
More concretely, this essay proceeds on two levels. On one level I present some claims
regarding the components I find crucial for an effective comparative legal analysis. Since these claims are far from being common knowledge, I try both to validate them and to demonstrate
their analytical potential by proceeding to a more concrete level. On this second converging
level, I compare aspects of free speech jurisprudence in Israel and the United States, with an
emphasis on offensive speech. The essay outlines the sociopolitical parameters that influence
free speech in each country and the corresponding legal doctrines that have evolved. This
comparison provides the background for a central question: is the doctrinal difference concerning
offensive speech the result of differences in the two societies' moral priorities? I argue that the
apparent difference attests less to a difference in moral priorities and more to the existence of
certain, partly unique, stabilizing mechanisms of American free-speech jurisprudence and racial
relations policy. I claim that these mechanisms structurally moderate harm to feelings in most
types of offensive speech and thereby rationalize a legal rule in the United States, which does not accept harm to feelings as a sufficient basis for prohibiting speech.
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