The states ratified what the First United States Congress proposed for protecting free speech on 15 Dec 1791. The First Amendment read:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This amendment bars the government from any censorship whatsoever.
But free speech may threaten the bonds of civil society if the people do not know how to let words roll off their backs. In 1859, John Stuart Mills published On Liberty that clarified reasonable boundaries of free speech. What became known as the “harm principle” is the most notable point in the book:
…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.[1]
By “harm,” Mills meant physical harm:
If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.[2]
The idea of the harm principle is that it is not the words that matter. It is the situation that provides the potential for harm (no yelling “fire” in a crowded theater). It is one’s behavior that could be litigated, not one’s words. The harm principle works in harmony with the First Amendment.
In 1985, Joel Feinberg promoted the “offense principle.” By presenting a fictitious bus ride scenario, he posits arguments that blur the lines between true harm and repulsion.[3] It should be clear that harm is absolute and not dependent upon temperament. On the other hand, repulsion is dependent upon the makeup of the individual.
Locke’s theory of property was clear that the right was based on having no one else’s permission. Likewise, the inalienable rights of the Constitution are not dependent upon anyone else. Feinberg demands that the right to speak freely requires the permission of everyone who can or may ever hear it. Clearly, Feinberg’s principle violates the foundations of the Bill of Rights.
Mill believed that freedom of expression, even to the point of offense, was important to push arguments to their logical limits. Feinberg’s principle turns this view and that of the Founders on their heads.
Laws have repeatedly been passed to abridge free speech, despite the First Amendment’s ban on abridgment. This is a clear example of the creeping incrementalism of progressivism in the United States. Limiting free speech because of offense logically leads to total suppression of speech. This is why there is no right not to be offended in the Constitution.
If you don’t like all the woke nonsense about pronouns, thank Joel Feinberg.
[1] van Mill, David. “Freedom of Speech.” Stanford Encyclopedia of Philosophy. Stanford University, May 1, 2017. https://plato.stanford.edu/entries/freedom-speech/#HarPriFreSpe.
[2] Ibid.
[3] Feinberg, Joel. Offense to Others. New York, NY: Oxford University Press, 1985.
