Nobody forces us to fall in love, to dislike another person, or to prefer a certain type of music. One person could spend six months sailing around the world and not feel lonely for a moment, while another can feel desperately lonely in the midst of a crowd.
In the Australian vernacular, being called a ‘bastard’ can be intended as a serious insult, a minor criticism or a term of endearment, yet someone may find the term offensive irrespective of the intent of the person making the comment.
The same is true when it comes to comments about political beliefs, sexual orientation, appearance, gender identity, age, religious values or many other factors that are variously claimed to give rise to offense. Nobody can say with certainty how a comment might be received.
In tort and criminal law, a person can be liable for all the consequences resulting from activities that lead to injury to another person, even if the victim suffers unexpectedly serious damage due to a pre-existing vulnerability. Known as the egg shell rule, it means liability may be severe if a person suffers injury as a result of assault or negligence and has a skull as delicate as the shell of an egg.
This relates only to physical injury though, and there is no such rule regarding verbal matters. Nonetheless, there is a growing tendency to attribute blame for the consequences of offence at the feet of those who utter the words, irrespective of the circumstances of the person claiming to be offended. Indeed, there is an absolute epidemic of mental illness and PTSD for which others are being blamed.
The Racial Discrimination Act makes it unlawful to “offend, insult, humiliate or intimidate” someone because of “race, colour or national or ethnic origin”, and yet whether anyone is indeed offended, insulted, humiliated or intimidated is up to the receiver of the message. Given an inability to know in advance how the recipient might choose to feel, the only option is to avoid saying anything much at all.
This can have significant consequences for the way we speak. In America, and increasingly now here, it has become common to wish everyone happy holidays rather than Merry Christmas on the assumption that non-Christians may feel offended.
Filmmakers, cartoonists, artists and authors are reluctant to tackle certain subjects because individuals or groups claim to be offended, sometimes even responding with violence.
We must now also deal with accusations of hate speech, which are typically nothing more than statements with which someone disagrees and has decided is offensive.
Feeling offended is an emotion, similar to anger, frustration and loneliness. But while they can be powerful, emotions are within our control. Apart from clinical depression perhaps, none can be blamed on someone else.
Even when a comment is intended to be hurtful, or there is indifference as to whether hurt is caused, how we respond depends on the beliefs we have accumulated over a lifetime. We can take offence at the slightest remark, or remain serene in the face of a serious insult.
Why then do we blame others if we take offence? If we are responsible for our feelings in some cases, surely we are responsible in all cases.
Because there is no cause and effect, the right of free speech does not require the right to offend. That does not mean we should ignore cultural norms like good manners and consideration for the feelings of others, but we do not need the law to tell us that the wrong response to the question ‘does my bum look big in this?’ can lead to problems.
The very notion that someone else can govern the way we feel diminishes our independence and self-ownership. If nobody can force us to think in a particular way, nobody can make us feel offended.
No matter how bigoted, ill-informed or obnoxious, our reaction to someone else’s words is always up to us. Unless words are coercive, by threatening, tricking or forcing us to do something against our will, we are responsible for how they are received. If we feel offended, we have the option of choosing another feeling.
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David Leyonhjelm was an Australian Senator from 2014 to 2019 representing New South Wales for the Liberal Democratic Party. Notable for his libertarian consistency, David’s work in Senate Estimates attracted acclaim worldwide for its forensic examination of government
waste. Professionally, he is a veterinarian and agribusiness consultant.
Thank you David!
I agree that “Because there is no cause and effect, the right of free speech does not require the right to offend.”
I think rules against ‘intentional’ harm is already covered elsewhere?