About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

16 J. Hate Stud. 1 (2020)

handle is hein.journals/jnlhtst16 and id is 1 raw text is: JOURNAL OF Cohen-Almagor, R. (2020). Taking profound offence seriously: HATE STUDIES Freedom of speech v. Human dignity. Journal of Hate Studies, 16(1), 1-11. DOI: https://doi.org/10.33972/jhs.152 RESEARCH Taking Profound Offence Seriously: Freedom of Speech v. Human Dignity Raphael Cohen-Almagor University of Hull, GB R.Cohen-Almagor@hull.ac.uk This study discusses the issue of offence to sensibilities as possible grounds for limiting freedom of expression. This issue is constantly brought to the public agenda, as for example, in the limitation imposed in Israel on the playing of Richard Wagner's music by Israeli orchestras. The proposed thesis is as follows: The Offence to Sensibilities Argument will take precedence over free expression only in cases where profound and direct damage is inflicted upon the sensibilities of individuals or a target group, undermining their dignity, especially when the speaker's intentions are to offend the target individual/group under circumstances in which the individual or target group cannot avoid. In every case, it is incumbent upon those who wish to limit expression to examine the content of the expression and its manner, the duration and intensity of the expression, the frequency of the offence, the speaker's intentions, the circumstances and the likely consequences of the offensive speech. Psychologists should be consulted concerning the severity of each offence. Keywords: freedom of expression; Feinberg; harm; offence; Skokie; Wagner Preliminaries I first came to think about the issue of offence when the Skokie episode came to my attention. Skokie is a Chicago suburb, inhabited mostly by Jews, some hundreds of whom were Holocaust survivors. In March 1977, the National Socialist Party of America announced its plans to hold an assembly in front of the Skokie Village Hall. Its leader, Frank Collin, decided to assert his free speech constitutional right in Skokie because of the large number of Holocaust survivors (Keneally, 2018). Psychological studies of Holocaust survivors showed that they were extremely vulnerable to profoundly painful reaction where they confronted situations that triggered memories of their horrific experiences at the hands of the Nazis (Goldberger, 1991, p. 1170). Certainly, freedom of expression is most valuable. It is an enshrined value in every liberal democracy and, therefore, only very important considerations might outweigh it. I thought that a Nazi assembly in Skokie is not protected under the Free Speech Principle because the survivors were put in an impossible situation. If they were to challenge the Nazis, they would have to face the swastika, the uniform, the hatred, forcing them to relive the horrors they escaped. And if they were to decide to stay at home, draw the curtains and block their ears, they still would have difficulties reconciling to the idea that Nazism could pass in their own vicinity. American courts approved the Nazi march in the name of freedom of expression.1 They failed to take the issue of offence seriously2 The Illinois Supreme Court did not doubt that the swastika is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding its display. Yet the Court concluded that it is entirely clear that this factor does not justify enjoining defendants' speech.3 ' Village of Skokie v. NSPA. 366 N.E. 2d 347 (1977); Skokie v. NSPA. 373 N.E. 2d, 21 (1978); Collin v. Smith 578 F 2d. 1197 (7th Cir. 1978). 2 Justice Blackmun, with whom justice White joined, dissenting, argued that he would grant certiorari to the Skokie residents to present their case before the Supreme Court as he felt that the present case affords the Court an opportunity to consider whether... there is no limit whatsoever to the exercise of free speech. There indeed may be no such limit, but when citizens assert, not casually but with deep conviction, that the proposed demonstration is scheduled at a place and in a manner that is taunting and overwhelmingly offensive to the citizens of that place, that assertion, uncomfortable though it may be for judges, deserves to be examined. Albert Smith, President of the Village of Skokie, Illinois, et al. v. Frank Collin et al. 439 U.S. 916, No. 77-1736. Supreme Court of the United States (October 16, 1978). 3 Skokie v. Nat'l Socialist Party of America 69 III. 2d 605 (III. 1978).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most