“Nobody’s interested” sounds too hasty to me. Because I’m interested. But at the same time, it’s not interesting as a new, totalizing concept that encompasses everything and explains everything better than other approaches before or since. I’m interested in it as something with which I can engage in dialogue, maintain tension. Let’s put it this way: in a certain environment, it’s interesting and justified today.
At the same time, no matter how much humans have tried to explore themselves, they have failed to create anything truly “living” artificially. Even any AI today: is it capable of transcending its own limits through its own will? Is AI capable, say, of “genuine suicide”?
I’ve digressed a bit into metaphysics.
There was an interesting case where lawyers filed a lawsuit demanding that a monkey be recognized as a subject of legal relations.
The lawyers argued that “personality” is a legal term, not a biological one. If corporations or even sacred rivers (as in India) can be legal entities, then why can’t higher primates?
Testimony from primatologists was presented to the court, proving that chimpanzees possess complex self-awareness, the ability to plan for the future, and to be aware of their own self. Consequently, they possess “autonomy,” which is the philosophical foundation of personal freedom.
The court was forced to make a decision, and do you know what it said?
The legal concept of personhood is inextricably linked to the existence of not only rights but also social obligations and responsibility to society. Chimpanzees are incapable of bearing legal obligations, fulfilling social debts, or being held accountable for their actions.
Does all this prove that humans are more than just “lambda,” as you claim? No, it doesn’t. But it does speak of “subjectivity” as a special state of being.
I would add to the court’s words that a subject is characterized by an awareness of the possibility of one’s own loss. An awareness of one’s own finitude. This is precisely why (in my opinion) people not only adapt to everything proposed, but protest, object, argue—sometimes even with reality.
Even the notorious “insult to feelings.” Why is it important to us? Because life passes, and we don’t want to constantly endure something unpleasant. We don’t want to adapt to infringement. Otherwise, we don’t feel human, as someone who is worth living.
That’s why I proposed discussing this category. Why? So that everyone can understand this line.
Today, when you write on the forum, you “shock” the public. But you clearly, intuitively know where the line is that shouldn’t be crossed. I propose: try to express it universally, so that it can be written down and people will agree with it (or start arguing with it again).
Here I say something like this: “In your opinion… ‘insult’ cannot be expressed precisely. If it cannot be expressed precisely, then it will not be possible to consider disputes, since a definition is needed.” Then I emotionally conclude that from all this it follows that philosophy cannot help law in its formulation.
Excellent and informative. This already gives us a lot to develop the discussion. I’ll try to write down what you wrote in bullet points, but that’s not exactly a rewarding exercise, as it loses depth.
You confirm the public demand for a definition of “insult.”
Insults as “things” don’t exist, and they should be understood based on subjective experience.
If what’s said means nothing to the recipient, then it’s not perceived as an insult. Thus, the feeling of offense is always connected to how the recipient interprets what’s said: based on its correspondence to reality, depending on their own perception of themselves in the world (here I would add the speaker’s authority).
An insult arises when the recipient has a feeling. If words don’t evoke feelings, then it’s not an insult (no matter how ugly the words sound).
You question the need for a definition. After all, that’s impossible, and the antidote may simply be wisdom.
Here’s my answer: My interest lies in finding a means of defending against attacks—both those who insult and those who accuse. People react differently to insults and accusations of insult. Someone can lose their job, career, or position because society deemed their words offensive… How can they defend themselves? What if someone’s words were deemed offensive under a false pretext, and now they suffer? There are no ways to recover except through wisdom, which is not available to everyone. If you haven’t learned rhetoric, can you be bullied?
I also don’t want the government to dictate what to say and what not to say. But I do want boundaries. People can’t agree on these things themselves. When people can’t agree, they invoke the law. Not necessarily as an “imperative” (prohibition), but as an “optional” (behavior options).
Does proof of negative consequences require proof, or is the mere fact of the act sufficient?
In continental legal theory, there is a division:
Crimes with a material element (for liability to arise, harmful consequences of the unlawful act must occur). For example: causing bodily harm, murder – without the occurrence of consequences, there is no element of the crime (only an attempt is possible).
Crimes with a formal element of the crime (the crime is considered complete from the moment the act itself is committed, regardless of whether harmful consequences occur). For example: banditry – is considered complete from the moment a stable armed group is created, even without committing any attacks.
Put the bully in their place. It’s an effective method. But what if the bully is simply richer or stronger than you? What if they shape the discourse, and you don’t? How can you defend yourself?
I believe that if we can clearly formulate the very concept of insult, the element of the crime will become formal. If we fail to do this, we must prove negative consequences, otherwise we’ll end up with nonsense.
Furthermore, insult doesn’t necessarily have to be made a criminal offense: it can be placed within the realm of civil law.
Addition.
I’d also like to say a few words about legal tradition:
The continental tradition is an attempt to grasp the essence of a concept (what is insult?) in order to formulate a rule of conduct.
The Anglo-Saxon tradition asks: “What can we prove in court?”
The Anglo-Saxon legal tradition is highly pragmatic. This is worth noting. But this doesn’t mean problems don’t arise:
People are fired for speaking out.
A “cancel culture” is emerging.
Corporations regulate speech more strictly than the state.
And the most important issue here is: what to do with harm that isn’t a lie, a threat, or incitement, but actually destroys a person’s position?
IN the U.S., people can be fired for any reason. Saying, “My company makes terrible products” seems like a reasonable reason for firing, as are many other speeches. That doesn’t mean the government should get involved.
“Cancel culture” is a form of free speech. If marathon “walkers” want to boycott the Nike store, they are free to do so.
Not only do corporations regulate speech, but the government properly regulates “business speech” with laws against fraud. Advertising must by law be “truthful and non-misleading”. There are laws protecting copyrights and trademarks (clearly limiting free speech). Personally, I think the copyright laws should be more liberal than they are, but it’s proper to protect the economic interests of writers and other artists.
I’ll jump right in. I find this an extremely important topic that the our political leaders are getting wrong and allowing culture to deceive itself about to the detriment of freedom of speech.
I would say that insults are psychological things, that come to be as mixtures of subjective experience and social feedback. We can feel bad when insults are hurled, or in other words, we can take offense. Or we can control those feelings and take no offense. We might still define an insult by the nature of the words and how in a normative sense they might likely affect the one the words are hurled at (like how “hurled” seems like a logical way to characterize speaking an insult), but what is not objective about normatively insulting speech is that it causes any harm or impact at all. Hurling an insult may have zero impact, or may just reflect on the meanness of the one doing the hurling.
This is important. Offense connected with insult may or may not exist, and requires the subject’s contribution in order to come into being.
Yes, the feeling of offense is solely the creation of the one who is offended. Now, this doesn’t mean it isn’t easy to see how some insulting words will quickly manipulate the person into feeling offended - emotional responses arise beyond our control to some degree. But our response to feeling that emotion can be, with some effort, managed, even to the point of not even feeling any negative feelings in the face of the basest insults.
I think the addition of authority of the insulter adds to the normative, typical, expected potential degree of offense to be taken or not. True, if someone you look up to insults you, it is easier to understand taking offense, and easier to understand taking greater, harm causing offense. But the universal mechanism of it requiring both an insult and a taking of offense for there to be something bad about an insult remains.
I think we all follow each other and this is semantic (and maybe contradicts what I said above a bit, or may seem to). But I would say, if words don’t evoke bad feelings, the insult is not an offense. So an insult might be something we can define based on the intent of the insulter, but insults can only be taken to matter to society by adding the subjective taking of offense by members of society.
So yeah - a comedian may say the ugliest thing about a minority group. But it might also be funny, and members of the minority group might agree, and might laugh, and might say the ugly insulting words cause no offense. We could still call the joke an insult. But we can’t call the insult offense causing or harmful.
We could just tie up the definition of insult with not just the words and the intent behind them, but also the harm caused - so “insulting someone” is a happening blending all of these. But I think it is more clear personally to recognize that an insulting, ugly statement can be called an insult, while at the same time avoid giving it (no matter what it says) any absolute condemnation or moral disapproval. Because these ugliness can be separated from the harm, we need to be careful when making rules about being ugly in public.
I think this gets to the heart of my concern. I don’t question the need for a definition. I question the need for a definition to be codified into law in order to redress harms. If we were able to clearly and fairly distinguish objectively insulting language from other speech and codify the distinction (which is really difficult, especially if you don’t assume offense need be taken because of the degree of ugliness of the words), I question the ability to enforce the law equally and not arbitrarily and not utterly abusively.
I think maybe we diverge on some basic assumptions here. I think employers should be allowed to fire employees for any reason they want or no reason at all. Basically, employment is a contract and is best locally governed by that contract.
Bottom line, it is precisely because people react differently to insults and accusations of insult that the law should stay out of this. Insults are speech. Speech is very difficult to codify as favored or disfavored as a matter of law, and more difficult to adjudicate in particular circumstances without unfairness and terrible precedent, and worse, degrading the high value of freedom of political speech and debate.
This is the balance. I think the boundaries must allow for ugly, insulting, even personal attacks. Government can only insert itself when the words are slanderous, libelous (which means demonstrably false AND causing quantifiable damage), fraudulent (which means demonstrably false AND either likely to cause quantifiable damage, or actually causing it), or the words are part of the chain or conspiracy to commit a crime (like inciting a riot, but more like directing specific clearly criminal activity).
If we don’t want the government to dictate what to say and what not to say, the boundaries have to be really tightly built to constrain the government from having any opinion whatsoever on what is insulting, ugly, good, bad, desired, despised, etc. Government needs to stay way out of those fights.
Proof of actual harm for libel and slander. Likely harm for fraud (so a regulator can tell someone to stop lying in an advertisement for snake oil cancer cures). And likely immanent harm as well as one affirmative step when conspiring to commit a crime (you can’t just say “Go murder that man” and be convicted of inciting crime; you have to say “go murder that man” and then someone needs to at least buy a knife and maybe know the mans address before one can call this a conspiracy to murder.) Otherwise, the government is too free to prosecute idiots who just talk too much and who are easily dealt with by common sense and we the people in the free marketplace of ideas.
This all makes sense to me, and sounds like it fits with American juris prudence.
I believe that part of the problem with the debate is that we need context. And once we reach conclusions on principles, we need to play out what the actual law will look like and therefore how easy it will be to justly enforce. (So I immediately sound like I am trying to protect the rich and leave victims with no recourse, but hear me out.)
If, in the end, the most powerful and richest person in the world is being a bully, that sounds awful. But I need context to actually wonder why that matters. If the bully is saying “that race of people is ignorant so don’t hire them,” then all of those people and our elected leaders and regulators can prosecute the bully for causing actual financial harm if only one person in that minority stands up to show the actual financial harm. But if that case is hard to prove, why would think that the bully’s words were deserving of punishment, and further, why would we want to arm the government with laws that apply to everyone (not just bullies) with the power to punish ignorant speakers?
In the abstract, powerful bullies picking on the little guy with words is certainly immoral, and reveals many psychological issues (in the bully and the victims who take offense). But in particular, do we think we can, by the force of law, stop such issues from arising by force of law without enabling the government to tell everyone to shut up and sit down? I am not talking about a slippery slope - the way I see it, some of the laws as enacted in England for instance regarding offensive speech are immediately the end of freedom of speech. No one is safe in England from the government without watching what they say in public. Same with North Korea. And this is the trend across the globe.
Civil law is better, but I think actual harm or breach of contract would still need to be proven, and certainly if the burden of proof was lowered or the definition of strict liability for certain harmful “hate” words was expanded, regulators should be proscribed from filing actions (and I still don’t really like it). But private citizens should be allowed to sue for whatever they want, paying for it of course, and the precedents set upon verdict would need to be universalizable.
I blathered on long enough - someone, please, regulate my speech..
Let me say a few words about dismissal in post-Soviet countries (they all regulate this almost identically, reflecting the legacy of the USSR).
It’s impossible to fire someone “just like that” here. Freedom of speech cannot be restricted beyond what is legally established. Even telling someone about your salary or writing about it on social media is not grounds for dismissal. Generally, grounds for dismissal are strictly listed in the Code. If an employer really wants to fire you, and you really don’t want to, this becomes a major problem for lawyers. An employer can’t simply fire you. The law explicitly prohibits any deterioration of workers’ rights compared to national legislation. I’m saying this so you understand. For someone in these countries, it’s considered outrageous for an employer to ask you to resign (in a good way). If an employer fires you for your words (even the most vile insults), it’s worthy of publication in the media, followed by a public debate about such an employer.
I’ve provided all this to help us understand the differences. I don’t know about Europe; maybe other participants will tell us more.
On the other hand, modern culture is globalizing, and the American approach to dismissal is gradually becoming the norm…
Even telling someone about your salary or writing about it on social media is not grounds for dismissal. Generally, grounds for dismissal are strictly listed in the Code95
I’m in the U.S. Discussing your salary is protected speech here. Unions would not be possible were it not.
@FireOlogist The main problem we’re facing here is a simple question:
“Will we violate freedom of speech by defining the term ‘insult’ in law?”
My answer: no, we won’t. And here’s why: I never said anything like, “Let’s ban insult.” Rather, I said, “Let’s define it.” Once defined, it doesn’t matter whether it’s criminalized.
The law could read like this: “Everyone has the right to demand protection from insult.” The concept of “insult” consists of A, B, and C."
If written this way, it automatically creates a defense against slander (an unfounded accusation of insult). So we have boundaries. Do these boundaries violate freedom of speech? No. They clarify it. After all, law is built on the principle, “My right ends where another’s begins,” right?
Let me draw an analogy. Is the act of murder prohibited, or is the taking of a person’s life prohibited? Is rape prohibited, or is an assault on someone else’s sexual integrity prohibited?
So here: It’s not insult that is prohibited, but the violation of someone else’s boundaries in A, B, and C. The law must respect these boundaries. Until it respects them, we will continue to get what we have.
This all looks like lobbying =)) Too bad I’m not getting paid for this…
Addendum.
Do you want objectivity? Here’s an option: we don’t live in the time of Locke or the Founding Fathers. Our emotional experiences reflect our objective physical state. Many of us wear various devices like heart rate monitors daily.
Hypothetical mechanism: a device monitors your state 24/7. You receive news about events from another device (for example, a smartphone that records the time) or, for example, another person delivers bad news (potentially a witness).
You learn of an insult—your objective body parameters have changed. Let’s determine the limits of “irreparability” of the blow. And there you have it. We’ve objectively assessed your suffering.
Is all this real? Today, not so much. Tomorrow—who knows?
I may have formulated the idea with the devices too radically. It’s not so much a matter of technology as of principle: if the law already recognizes moral harm, then it fundamentally allows for suffering to be legally significant.
The question then isn’t whether such harm exists, but how to define the criteria for its recognition without undermining freedom of speech.
Also on this topic: You have the right to wave your arms freely. But this right is limited by the other person’s body: waving your arms where another person is standing is prohibited. The victim can show objective evidence (bruises and abrasions), and you will be punished.
The problem with insults is that “bruises and abrasions” on the soul are difficult to prove. It’s difficult to prove a cause-and-effect relationship. Above is a hypothetical example of how this can be done. So what’s the problem?
Why do people deserve to be protected from insults? Don’t many people deserve to be insulted? Is every comedian dedicated to insulting Donald Trump to be dragged into court (I’m sure Trump would support that)?
Freedom of speech – like Democracy – is difficult. It includes people’s right to say stupid things; it includes people’s write to say untrue things (unless under oath); it includes people’s right to say insulting things. I’m sure fascists would use the law to prevent anyone from criticizing them. Free flow of information would be banned, and those who deserve to be insulted would be unaware of their just desert.
We have that situation here in the US as well, although it is not enforced by law and legislatures and codes and regulations. It’s contract. This is like being in a union. Or being a tenured professor - they are fairly impossible to fire. Some states are not “at will” (meaning one can be fired "at will), states, and termination must be with cause. Causes are fairly broad in most cases, but these circumstances are not unknown in the US, but they are not of interest to the federal government or required by federal constitution.
My answer is yes, because as soon as you specify “A, B, and C” you will create a law that is vague and unenforceable in a fair and just way.
In my opinion, there is no political protection from insult in a world with political freedom of speech.
Slander is different. It’s not the fact that slander is insulting that can be adjudicated. Slander is false - it’s a lie. If one can prove in court that slander is a lie, the court can adjudicate it. And further, slander is a lie that causes demonstrable harm. If someone can prove in court that the New York Times lied and it directly caused you to lose an employment contract worth $50,000, then the NYT may owe you $50K and a retraction and be enjoined from ever saying those false words again. That has nothing to do with the insult of the offense the slander may have brought about.
But these things need to measurable so they can be presented to a jury and held up against a law. The pernicious nature of laws about speech are in the details. We need to see the text of a proposed law to flesh out the victims it would enable to gain redress for the particular harms those victims suffer and against what defendants’ specific words and intentions we are adjudicating.
That is precisely the question. I haven’t seen a good law enabling the government to prosecute offensive language. England has one from 1973 (I think enacted when they were trying to prevent IRA propaganda). Now the law enables them to arrest old ladies who rant on Instagram about transgenders. This is a waste of government resources and antithetical to a free society where transgenders and old ladies should be left to argue out their differences as long as they have breath.
I don’t think there is a problem with the impulse to curb offensive and dangerous speech. There are lots of dangerous ideas and ideologies. We all (meaning 90% of us) might agree on certain words that no one should say, maybe about harming children or something. But as soon as you try to make a general law that limits ideas, limits discussion in public, we may as well issue a Newspeak volume from Orwell’s 1984.
We need a real law, real text, defining offensive speech and think through application of the law, reading court opinions and outcomes, to really analyze this.
I’ll give the lawyer’s answer: it depends. It depends on the law.
But my conclusion is, yes, we will violate the principle of free speech, because I don’t think we can make a law precise enough to curb offensive speech without threatening lots and lots of speech with government control.
Here is a law in England:
Fear or provocation of violence.
(1)A person is guilty of an offence if he—
(a)uses towards another person threatening, abusive or insulting words or behaviour, or
(b)distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.
Do you think we can trust the government to fairly protect freedom of speech armed with the power to arrest people based on that law?
I don’t. “…with intent to cause that person to believe that immediate unlawful violence will be used against him…” ?
“Intent to cause a person to believe”?? What is that? Any room for throwing this guy in jail but letting that guy say something nasty because he didn’t intend anyone to believe something.. or no one in fact believe him… This is incredibly vague law, unable to be applied justly if you ask me.
I don’t think the free speech and legal prevention of insult are compatible. It’s one or the other, and we have to be for free speech.
I’ve taken some time to reflect. First, I’d like to thank @Jamal for adding this new section. At first, I thought “Philosophy of Law” was a rather stale topic. But on the other hand, I was a bit tired of the same questions and answers from the same people on this forum (even though I’ve only been here for a year), and I saw a certain “revitalization of the discussion” in this section. My instincts were right, and in these short few days, we’ve discussed so much new material, even though it may have seemed like a “storm in a teacup.” I think it takes some time to shift the discussion to the age-old questions of law. Gradually, if nothing gets in the way, we’ll “kindle hearts” (or not).
I started with a modest topic that, by and large, hadn’t been explored much before. The @FireOlogist made a remarkable contribution with his “phenomenally developed” phenomenology (I admire your skill). And we began to formulate something and start from somewhere. Afterwards, we even began to explore our own positions in this uncharted area. It’s like writing philosophy from scratch: there are approaches, there are instructions, there is experience, but we encountered the question anew—returning to the concept, returning to experience before concepts. This is wonderful. Although, perhaps all of this is just my emotions.
In this post, I’d like to share with you a new insight on this topic.
Let’s try a pragmatic approach. This is an interesting approach, given the Anglo-Saxon legal tradition. I’d like to introduce a term new to this discussion, but it’s also common in economics.
Externalization of costs.
In economics, this is a way of obtaining benefits for oneself at someone else’s expense. Generally speaking, many (dishonest) people use this every day. Consider, for example, how some people appropriate your achievements for their own purposes or use your benefits for their own gain. And the law, in its wisdom, protects us: there are “vindicatory” or “negatory” actions when we reclaim our property from someone else’s illegal possession or remove obstacles to its possession.
But why can’t the same be done with “insult”? For example, Nike exploited “pedestrians” or the “tolerance” of runners towards them for its own commercial purposes. Why not force them to donate a portion of their proceeds to a musculoskeletal care fund, for example?
After all, pragmatically, the upsetting part of an insult is precisely the fact that you’re being used in some way: be it a bully at school who calls you a “four-eye”—he’s earning his authority at your expense. Or a child who wants a tattoo at your expense (“Give me $100 for a tattoo of ‘Dad’”). This isn’t exactly an insult, of course, but it’s still externalization.
Or a bad employee: he posts insults about his employer on social media. Of course, the employer will fire him, because he’s compensating for his inability to work by trying to get society on his side in his emotional problems!
Your wife gives you the sideways look when you’re about to invite a friend over for a beer and watch football at your place. But all she’s asking of you is, “Why should I pay for your entertainment with my own discomfort?”
You can search for examples yourself. I find this all quite pragmatic. It’s not about insult, but about protecting yourself from it. Maybe not directly, but the law rarely protects anything directly. =)
Insult as a form of extracting symbolic benefit at someone else’s expense
I suggest you think about it. For now, this is just intuition, but the approach deserves consideration.
All that remains for us is to identify the criterion: when externalization becomes a legal problem
Let’s move away from insult as a feeling. Let’s approach this issue differently: the problem arises when one subject systematically gains benefits (attention, status, influence) by shifting costs to another who did not consent.
Then the question is: can the law ignore such cases if it already intervenes in similar externalizations in the economy?
I don’t know how we can assume who is harmed by the language “pedestrians tolerated”? Without a specific victim making a complaint AND showing evidence of some actual harm (even if it was simple emotional distress), why would we assume a musculoskeletal care fund had any direct connection to Nike’s intent or insult? You have to form some sort of prejudice in order to identify some group as victimized by the Nike sign.
I get it, we can extend our empathy, but then, why couldn’t someone extend empathy to the marketing folks at Nike who may have just been trying to be funny as a way of including everyone? Aren’t those who are angry at the sign bullying Nike’s poor marketing folks who may have really meant to encourage participation?
This is the problem with empathy. We are all victims. Life is bitch. The government can’t get involved in everything. The government can’t have the goal of protecting people from all hardship and all suffering - because that is impossible (and forgets all the suffering and hardship government causes everyday).
Or maybe there is good cause. The employer employs many people, and disgruntled behavior posted on social media can be poison to an organization. We need more backstory here and context besides posting insults about the employer. Maybe the worker is perfectly good at his job, but most of the other employees look up to him, and the insult itself rattles the whole mission and value structure of the company, along with being a bald display of insubordination. Maybe the public posting will lose customers and clients and vendors. It will likely harm future chances to hire people. Maybe the posting is a catalyst to everyone losing their jobs as the business fails.
Or maybe the boss has thin skin, and firing someone for insults makes him look weaker and the downfall of the company is inevitable - so the employee may have been crying out for help or trying to host a little intervention to hopefully bolster positive change in the boss, to save the company. In this case, the insult itself was superfluous, and the taking of offense by the boss is another example of his bad judgment, because the content of the criticism may have been intended to be constructive, and may in fact have been useful information to save the company.
Do we want government to, by law, step in there to figure out all of those decisions? All of that psychology?
I see where you are going, and it is much more workable. But I still have vagueness issues with “shifting costs to another who did not consent” when it comes to speech.
I think we need to step back.
US jurisprudence about the ability of the government to regulate speech makes a key distinction. There is speech as an act that does something, and there is the content of the speech (what it says, what it means to the speaker and the listener, what information the speech act conveys).
The government is allowed to regulate speech as an act because of what that speech does. The purest example of this is “inciting riot”. Riling up a crowd and storming the municipal building and burning it to the ground. This can be prosecuted, not because people don’t like the police, and not because maybe they were wrong to blame the police, but because riling up a crowd that destroys property precisely in response to being riled up, implicates the speaker in the damaged property. The words, whatever the content was, led to damage. This needs to be regulated.
But the government doesn’t need to express any opinion on whether “F the police” is a good or bad thing to say to prosecute this. The government doesn’t need to express whether the police did something bad, and the people had good intentions, or who hated who more. That is all about the content of speech. That is all opinion. That is all legitimate political expression, for discussion and debate. The government should not chill or limit or promote or silence any of that.
And in America, the government can rarely curtail the content of speech. One example of a content restriction, is pornography. There, it is precisely because of the content that the government can regulate where it is displayed. This has to do with protecting kids. Seems rational, and makes the point that, for adults, no content, no matter how vulgar, vile, hateful, ugly, pretty, impossibly delusional, aspirational.. no content should be limited by law.
Doesn’t the law protect against appropriating achievements with patent law, trademark law, plagiarism law, fraud and misrepresentation law? And there is legal redress for libel and slander.
I still don’t see how bullying can be codified into a universal prohibition, and then enforced in a way that is just for all bullies and fair for all victims, and all critics and all speakers.
About 15 years ago, we started hearing about “safe spaces” and “micro aggressions”. Then we heard that “language is violence” and more talk of “hate speech”. Then began “cancel culture” to finally start punishing people who disagreed with some group or another. Then the cancelations moved institutional, and we had governments revoking licenses to broadcast, imposing mandatory banning from social media (Trump kicked off twitter), defunding and deplatforming - even freezing financial accounts, or in the case of the IRS in America, government not approving the incorporation of a conservative non-profit organization just because they are conservative. Today we have large groups of people who are happy that the government shut down Jimmy Kimmel (for speaking), and large groups happy that Charlie Kirk was killed (for speaking). This all seems like a logical trajectory to me when seeking to use force (such as force of government) to curb speech.
All of this seems to me to be seeking punishment of those who simply disagree with you. No matter how innocuously you frame it, whether it be to stop micro aggression or hopes for the death of others, trying to use the government to curb or prevent or protect against or punish someone for something they said, is essentially institutionalizing morality police and thought police. It is never anything more than that. And making the government the ones who are the police (as opposed to maybe a priest or a teacher or one’s parents) gives birth to dystopia. People who can’t convincingly argue with other people to foster agreement, instead of continuing to argue, they want the those who disagree silenced, one way or another. Allowing government to wield this power is fuel for tyranny.
Now we can frame it as the strong oppressor-bully exploiting the weak and oppressed. We can say that without some way for the government to step in and stop certain speech, the strong, privileged and powerful will continue to rob and victimize the weak. But that is a romantic picture of harsh reality of government force used to tell a citizen to shut up. Government is just people, so if people are bullies, government with laws to stop bullies are just more bullies.
I think we have forgotten (or been numbed by first world problems), why we initially constitutionalized the concept “the government shall not abridge speech.” Freedom of speech and expression and the right to freely associate with and identify with any group or ideology (such as a religious sect), this right was claimed as self-evident, and is a right to be found in the very nature of humankind, existing prior to and regardless of form of government. The government doesn’t allow us to speak our minds. We, by nature, are free to do so, and the government we freely form is NOT-allowed to curtail this natural right. This limitation on the government was recognized in the constitution specifically to defeat and curtail oppression by any government institution or representative.
Government is the biggest bully, the strongest oppressor, the most powerful force in our lives. We cannot give the government the power to say “your speech is bad, so you must be silenced from speaking.” Free speech, it seems to me, must not be eroded, not for the sake of protecting people from offensive words and ideas. All of these “hate speech” type laws are simply us giving away this natural right.
We don’t have a natural right not to be offended by speech. We have a natural right to call other’s speech offensive.
So how do we protect people from speeches and slogans and ideologies that alone, on paper, are harmful? How do we stop bullying, stop people from spewing hate, stop people from rallying mobs behind incoherent and irrational slogans and ideologies? If the answer is anything other than more speech, we all lose.
So it seems to me, we cannot legally stop offensive hateful speech and even discussion of dangerous ideologies, without risking loss of all freedom for anyone.
Free society is life in a jungle. Civilization and a happy community of like-minded people is a precious and aspirational goal. We will never get there by coercion, and force of law. It seems to me the only way to defeat bad ideologies and bullies, is to show them for the weak and irrational things that they are, and, of course, cracking down hard through government on assault, murder, theft, fraud, libel, slander and all the actual, measurable, provable harms that they may perpetrate.
Then you have made an incoherent cause of action and the rest of this doens’t quite get off the ground as a practical hypothetical. However, there’s some important bits in here. Onward..
The first question will be whether or not the the statements are capable of being construed in the way the complainant claims; then they will assess the level of publicity required, then these questions will come in (although, 1. is somewhat wrapped in the pre-trial discussions which occur). And further, damage/harm is not always required:
“In proceedings for defamation, it is not necessary to allege or prove special damage.
Compare: 1954 No 46 s 4(1)” (this refers to “damage” which is the act of publication, in most instances. It’s very rare for that not to be framed as such. It’s the degree which matters.
And yet, it is:
" 10Opinion must be genuine
(1)
In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is the author of the matter containing the opinion shall fail unless the defendant proves that the opinion expressed was the defendant’s genuine opinion."
It could be entirely false - but if it is your “justified (true) belief”. The true part is essentially a ghost in this because it was “to you” at the time, true. Despite it being found false. It must be proven the defendant knew what they said was false for slander/defamation to get anywhere generally.
That’s right. And I think, correct.
Quite. I don’t fully recognize what you’re saying in my life either, so best left for now.
That would be quite odd - it’s not designed for that. Needs tend to be satisfied by behaviour, not thinking.
I think it’s incorrect to hold this view because ‘context’ is not about precision but circumstances. And you know even the science of medicine often relies on context.
Yelling “FIRE!” is not itself illegal. But yelling “FIRE!” in a crowded theater deserves an examination in context. But let’s use some insults. A physician can certainly tell a patient that he/she is obese. But, in the workplace I can’t tell someone “You’re obese” without being labeled an harasser.
I suggest we return to this topic after a short timeout.
Last time, our discussion came down to freedom of speech, which should not be restricted for a number of reasons. (These arguments are quite compelling and require no further proof.)
Instead, I intuitively suggested that even if we don’t restrict freedom of speech, we should nevertheless develop a tool to protect against insult. My solution was to go beyond the limitations of freedom of speech and translate it into pragmatics:
The “actor” benefits at the expense of the “recipient.” Let’s think about a compensation mechanism.
I’ll break it down: A boy in the yard (let’s call him the “actor”) called another boy a “fool” in front of others. The one being called (let’s call him the “recipient”) has no defense: let’s say he’s insecure, weak, or hasn’t read books on rhetoric—that happens. Ultimately, this “negativity” becomes grounded in this silent boy. It’s digested within him. And the first one to insult received his benefit: a certain self-affirmation at the expense of the “recipient.” This benefit is intangible, as long as the kids are sitting in the sandbox.
But let’s try to resolve another dispute: The Actor Company uses the image of a vulnerable group of people (the recipient) in a negative light in its advertising in order to make real money from this contradiction (such hype). Does the vulnerable group have a right to compensation for the use of its image in a negative light?
Approaching this issue purely pragmatically, I would say: yes, they do.
Next example: A blogger uses the image of politician “A” in a negative context in their video, appealing to a group from another camp. The blogger is engaged in commercial activity, attracting subscribers to their camp, receiving payment for views from the advertiser. Does politician “A” have the right to ask the blogger to share a portion of the profits? Yes, they do. He also has the right to hold the blogger accountable, but another question is whether this will be negatively perceived by his own supporters. It’s his choice – let him decide what’s more important to him.
In this situation, there’s no need to even define the concept of insult – the use of an image (negative or positive) is sufficient.
The actor “latches on like a tick” to someone else’s misfortune, personality, or image, profiting from it. We don’t restrict their right to speak, but we can ask them to share the proceeds.
How could this work? I want to slander someone. If I profit from this activity, I’ll have to pay a portion of that profit to the person who was slandered (at their request). If I do this on my own “impulse,” without receiving any benefits, then I owe nothing. This all seems quite fair to me.
That’s interesting. I don’t think it is “slander” in the legal sense, so it might be useful to really distinguish “slander” at least as I understand it in the US (which is vaguely familiar).
All of the things you need to line up to demonstrate slander in court are:
False Statement of Fact: statement must be a fact, not an opinion, which I think is the most relevant distinction from your idea of insult profiting above.
Publication/Communication: statement must go to at least one other person besides the target of the slander
Fault: speaker must have been negligent about finding the truth, or in the case of public figures (politicians), the speaker must act with actual malice (knowingly or more recklessly lie - not just negligent).
Damages/harm: quantifiable damage, but this can include financial loss or emotional harm. (There can be slander per se, which doesn’t have to prove quantifiable damages, like when you intentionally and falsely accuse someone of a crime or of having an infectious disease, sexual misconduct - things no one disagrees are harmful).
Identification: the statement must clearly refer to the target of the slander (the innuendo or inference must be strong)
Unprivileged: The statement can’t be in a courtroom or legislative hearing (you should be able to testify whatever you think when asked in a court - lies are perjury, not slander, plus Congressmen get to pontificate all they want, which is fun for them.)
The important pieces that go to the essence of slander to me are “false statement”, and “harm.” Essentially, you can’t just make stuff up about another person and harm them because of it. I think we have to see how these line up with your new cause of action for insult.
The other thing about slander is, the redress for committing slander is disgorgement of every penny of profit, and possibly punitive damages on top. The result isn’t sharing the proceeds, but turning over all of the proceeds, and more.
So let’s restate your idea:
The actor “latches on like a tick” to someone else’s misfortune, personality, or image, profiting from it. We don’t restrict their right to speak, but we can ask them to share the proceeds.
First, I’d like to distinguish “misfortune” from “personality or image” as these latter two seem to introduce trademark infringement type claims that might not help (they would help with insulting public figures, but we should get to that later). With misfortune, we are no longer talking about “false statement.” I believe the harm you talking about is insulting people based on facts, like disparaging their ethnicity or character. The speech here is an opinion, not a falsifiable fact. The harm from insult presumably comes from speech that makes public an actual misfortune.
So maybe we have to look at “Invasion of privacy” laws instead of “Slander” to develop this idea of “Punishable Insult”. Invasion of privacy is not a criminal law, but a civil law (you don’t get arrested and tried and thrown in jail, you get sued and tried and punished by fines and disgorgement of profits) and it includes the following distinct claims (these are different claims, with the prongs of each type of claim broken out in the second sentence):
Public Disclosure of Private Facts: The publication of private, intimate information about an individual that is not of public concern. Prongs: The disclosure must be public, the facts must be private (e.g., medical records, sexual activity), and the disclosure must be highly offensive to a reasonable person.
False Light: Publishing information that creates a false, misleading, and highly offensive impression of an individual, similar to defamation but focused on emotional distress rather than reputation. Prongs: Publicizing false information, portraying the person in a false light, and doing so with knowledge or reckless disregard of the falsity.
I see “Punishable Insult” might be a combination of “Public Disclosure of Private Facts” and “False Light”.
The false light aspect incorporates the idea that we are not talking about a fact, but an opinion. An insulting statement doesn’t create a “false” light necessarily, but it creates a “bad light”. For instance, it doesn’t matter whether it is true or false when someone is mocked for being a moron, it only matters that being mocked as a moron is bad.
The public disclosure of a private fact is the fact that it hurts the person’s sense of self - it makes them feel bad to be who they are since they’ve become the source of derision and insult.
These are some moving parts to flesh this out.
However, I think we are going to need to come up with an objective list of words and statements that create a “Bad Light” (and I think that’s a good name for this new claim of punishable insult). Calling me a “woman” because I’m a man (or I identify as a man), could be an insult to me. But how could we capture this objectively without opening the door to every word being a possible insult? This is why in my first post I tried to point out that we have to take offense before insult comes into being. There is no objective insult language. Maybe “moron” or “idiot” or “motherF-er” or some list of banned words? But now I hope you see the first problem. The notion of what is “Bad” in a “Bad Light” claim is subjective, and I think doesn’t exist until after you have the insult.
I do think this new claim cannot be criminal. We don’t want to give the government the power to say to a citizen “what you said is objectively insulting and for that, you go to jail.” (Which appears to me what is happening in England, but I digress.) This new claim can only be civil.
But let’s say we can figure out a way of blaming the Actor who hurls an insult for some sort of profit at the other person’s expense based on the badness of what is said in itself. How on earth would we enforce this with any consistency? Further, why wouldn’t we open the door up to viable claims made every day? At some point everyday, I could probably take offense at some thing - now I could sue and settle the matter for a small settlement.
I’m still looking down a rabbit hole, but maybe I’m going too fast and someone else can make up a new claim for “Bad Light” or “Punishable Insult” or other name, based on the moving parts of Slander, and Invasion of Privacy type claims.
I agree that so far this all looks like a “raw hodgepodge” rather than a legal category. Give me some time to think about it in light of your points. In our legal system, things are much simpler with qualifications =)