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Yesterday I had a conversation with my friend, and the topic about insulting being illegal (=> fined or even up to 1 year prison) came up (Germany). He was arguing that it is good to punish those who insult, as it is more satisfying to have that person have the state go after him and thus suffer severe consequences. We are not talking about defamatory statements that are false - it's about mere insulting words that are somewhat publicly expressed. Apparently it can target individuals as well as groups of people. He expressed that he'd rather be willing to insult a person and take the punishment than insult a person without having his speech being punished - which I consider consistent.

I am clearly siding on the free speech side, and even brought up how in the US, there is the nuance of public figures. I brought up several arguments, but I don't feel like they were as convincing as they should be. Even the definition of "Meinungsfreiheit" (freedom to express opinions) had to be addressed, because it is not identical with "free speech." The proper term would be "Redefreiheit", however that is not appearing in the German constitution unlike the US constitution.

What arguments can be brought up against punishing insults?
Optionally also arguments for punishing them.

Be reminded about the distinction between insults, criticism, opinions. Criticism and opinions are allowed (thus no arguments needed for that), insults are not (which can be understood as part criticism as well).

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    One person's insult is another person's candor, and use of words is a shifty context sensitive affair. Having the state discern nuances of context to decide what does or does not count as an "insult" is unworkable and ripe for abuse and selective enforcement. The burden of prosecution, even if it ultimately works out "right" in all cases (a pipe dream proposition in itself), is likely to have chilling effect on public expression generally. And it will be weaponized against the unpopular, like everything is. If the tradeoff is just that "it is more satisfying" the idea is lousy on its face.
    – Conifold
    Apr 7 at 8:20
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    See Wells, Liberalism and the Freedom to Insult Religion for a review of ethical arguments for and against insult laws.
    – Conifold
    Apr 7 at 8:45
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  • Truth is good. When a person knows the truth, they can make decisions in a way that better achieves their goals. Whoever wants to suppress a truth is working against the interests of anyone who would make decisions differently if they knew that truth. If you want to know who is causing harm to society, look for the powerful people trying to hide what they're doing from society. Untruth enables wrongdoing.
  • Specifically, if someone does something wrong that is deserving of insult, and they are not called out for it due to law, then they have less incentive not to do what was wrong again in the future. Prohibiting criticism protects and encourages wrongdoers.
  • If it is illegal to insult someone, who has the power to pursue this in court? Likely, only someone of significant means. In effect it becomes illegal to insult the rich, but legal to insult the poor. This is unfairly discriminatory.
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  • The first argument does not match as it's about insults, not truth. Second one is good, although "criticism" is allowed as long as it's not insulting. However my argument was a slippery slope situation, where saying "your actions were stupid" can imply that the person is stupid, thus possibly constitute an insult. Criticism can easily be interpreted as insults, thus even suppress expression of opinion - or give room for abuse. Third argument would be good, however in Germany I think pushing this into the courts is "free" as it's a matter of felony and not a civil case.
    – Battle
    Apr 7 at 8:06
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    @Battle if the insults are truthful, then the first one is about insults. The second one is just a special case of the first one.
    – causative
    Apr 7 at 8:12
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In this answer I have tried to expose what could be a social contract based rationale for freedom of speech (FoS). To summarise: democracy requires that every citizen can voice their concerns with equal access to the public place. FoS is the tool that makes it possible, because if some ideas are banned from the public space the citizen who have concerns related to these ideas can't voice them.

Note that here FoS is considered under the framework of social contract theory, and this answer does not cover approaches like considering human rights to be natural or god given. Also, it assumes we consider Democracy as a goal, of which FoS is a necessary condition.

In this approach, FoS is to be granted insofar as it contributes to the public debate. In the linked answer I give the example of people concerned with homosexuality, who should be allowed to voice their concern wether we agree with them or not, but not to organise protests at homosexual people fumerals, because this mode of expression harms the family in mourning without adding anything to the public debate (the same concern could be voiced any other way).

So, the question becomes "is insult a mode of expression that adds to the public debate ?". I would personally say no, as any fact voiced like an insult could rather be expressed matter of factually. Namely "I think mister A is dumb as f*ck" is only an emotionally charged way to say "I disagree with mister A but have no argument to offer". The insult serves no purpose but to muddy the water, and should be banned.

On the other hand, the frontier between an insult and colorful language is hard to define precisely. If insult were to be punished too harshly or defined too loosely, people would probably enter self censorship, hesitating to voice legitimate concerns by fear of being misconstrued as insulting. It could be argued that benefits conning with the assurance to voice concern without danger of punishment outweighs the possible harm caused by an insult. I think it is the strongest argument for tolerance to insulting language in the public debate (but even this has limits, people should be given the benefit of the doubt, yet starting each and every speech by "My political opponent's mom is a whore" should not be tolerated)

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  • The insult serves no purpose but to muddy the water, and should be banned. - Should it be really punished rather than ignored or just shunned then? If I say something that muds the water and serves no purpose, but not an insult, should that be illegal as well? What about comedic, artistic, provocative or hyperbolic expressions like "that politician is a criminal tyrant"? What if something like that does serve to convey a set of ideas that fits, not despite but especially because it is insulting? Who are we to judge what should or should not be allowed to be said?
    – Battle
    Apr 7 at 9:49
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    I understand these arguments and admit the subject is tricky. First of all, "Who are we to judge what should or should not be allowed to be said?" is not an objection under the social contract theory, because what should and should not be said is the object of a consensus. I have my standards, you have yours, were can we set the limit so that a majority is satisfied with it ? I don't pretend to have the answer.
    – armand
    Apr 7 at 10:15
  • "Should it be really punished rather than ignored or just shunned then?" The problem is inflammatory rhetoric can not always be ignored or shunned. See the election of Donald Trump and the events following his recent defeat for a nice example.
    – armand
    Apr 7 at 10:19
  • "What about comedic, artistic[...]"it depends. How much do you value your right to insult people for this purpose over the right to not be insulted ? I personally feel no need to insult people for laugh but don't appreciate to be insulted, so considering true rule applies to everyone, I will gladly give up the former of I can have the latter. "provocative or hyperbolic expressions like "that politician is a criminal tyrant"?" This is typically what I call muddying the water. If you have precise facts to reproach to this person, use that. If you don't, why talk in the first place ?
    – armand
    Apr 7 at 10:24
  • "What if something like that does serve to convey a set of ideas that fits, not despite but especially because it is insulting?" I fail to see what serious argument can benefit from insulting your opponent. One of the reason I appreciate philosophy SE is precisely that, though we disagree, we don't call each other "stupid dumb piece of s*it". This way we most of the time end up exchanging ideas instead of insults.
    – armand
    Apr 7 at 10:29
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It is interesting to look at the role of formalised insults.

Flyting (Scots dialect: scolding) is a legacy of a Viking passtime. Sir David Lyndsay was among other things, a poet who exchanged flytings with King James V of Scotland, and satirised the court. It was an entertainment, it used sense of humour -ie balancing the humours- to correct something out of balance. We use queues to indicate humour, that will allow otherwise unsayable things to be said, exploring boundaries by where & what push-back is given, bonds the group when the right balance is struck, and prevents excessive pride and touchiness that would elevate someone completely beyond the group, alienating them. Satire of court had to be within certain bounds, but could push the pompous, boring or irritating, to curb behaviour that had quietly been annoying many.

Spoken word slams, can have improvised battle rap exchanges. The exchange with Eminem at the end of 8 Mile is a good example, where Eminem points out his opponent is playing on assumptions of being 'one of the people', but went to private school. There's a great series Have You Heard George's Podcast, where his sharp wit and ability to speak in a timely way in the moment to 'put people in their place', provides audience catharsis - a word Aristotle coined in relation to drama, the purging of emotions by metaphor to purifying eg of blood guilt (the furies are a powerful & dramatic image of mental illness and social death combined, that would hound people to suicide for certain crimes, getting right with the gods for such things was a big dewl for Greeks). Another favourite example of the role of battle rapping is The Rapping Nana Panda, Joy France. She shows the power of elegant creative insults, to gain respect and prestige by people who do not give that easily, and rearrange preconceptions about age and gender through that.

I would say there is a class and power issue about insults. Being able to draw on authorities and resources to prevent or revenge insults, typically implies having more of those than the insulter. It could be as minimal as being teachers pet, so having an account of who deserves detention believed. Or who can afford better lawyers in court over slander. In working class groups much importance is put on 'sorting things our' among yourselves, without appeal to external authorities - doing that in the long run bonds groups, and generates mechanisms for resolving tensions, but often involves unwritten rules new people may struggle to get, vs explicit rules for external appeal.

Taleb and Haidt develop this idea that taking some pushes and pushing back, exchanging insults, helps children become antifragile, and more self reliant. This is coloured by the US culture war. But it is notable that left wing activists and thinkers typically appeal to authorities of various kinds to police language, where rightwing thinkers and activists are more likely to rely on insults - Trump mocking Rubio was something difficult to imagine a Democrat doing, and had an impact.

So more widely I would put defence of insults, in the context of defence of satire. Tyrants, and the insecure, hate to be laughed at. Look at why Pooh Bear is banned in China. There is a balance to be struck, in what satire is acceptable, what insults are ok, what go too far. It is different in different cultures, it's dynamic. But in general, we respect people more who have a good sense of humour (proportionate, creative, timely insults included). We mistrust and recognise as implying separating from and asserting power over us, when someone's first instinct is to appeal to external structures of enforcement (though of course these exist for circumstances that go too far, bullying, defamation etc). Often silencing of minor insults (eg SLAPP suits) rather than 'giving as good as you get' is used by the insecure and pompous, or outright immoral (eg Bob Murray's suit against John Oliver) because the satire actually works, to diminish their prestige, or criticise something worthy of criticism they have been trying to make a forbidden topic.

Some further discussions of the role and importance of humour:

Can society exist without hierarchy?

How is Society shaped?

Lastly I would just mention societies are held together, and dynamically structured, by shared values. Durkheim observed that religious practices in the broadest sense, are about community bonding through sharing attitudes to sacred things - and challenging what is sacred comes to challenging the coherence of the community. The USA has made free speech a core value, attitudes to it are a kind of shibboleth. An interesting example of it though is tgat it's likely the USA will be one of the only countries where pre-pubescent looking sex dolls will be legal, because of the body of free speech law. Germany, and even the UK, view free speech differently. In the UK the prime minister must face direct questioning by MPs, in public, and subtle and not so subtle insults are exchanged, with an absolute rule on anyone in the House being called a liar. This requires a greater sense of appropriateness than US politics, and I would say has helped achieve less polarisation

(some favourite parliamentary insults: "He has something of the night about him" is said to have sunk a career of someone who did look a little like a vampire now you mention it, and "Like being savaged by a dead sheep" was a bit of repartee to criticism from a quietly spoken MP)

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I would draw the line between context and intention.

If your context is e.g. political candidacy, then "but you're ugly" is a valid contextual argument:

https://www.psychologytoday.com/us/blog/why-bad-looks-good/201607/voting-our-eyes-attractive-candidates-get-more-votes

If you're throwing an insult that has no context to support it as reasonable, then it's perhaps just about making someone feel bad. Such as: "you're ugly" at work.

Of course there are people who want to ban the world "ugly" in order to make themselves more accessible:

https://jamespartridge.wordpress.com/2015/07/23/ugly-is-offensive-and-facist-and-should-be-banned/

The tone of expression should also matter. I don't find that excluding someone that I genuinely dislike is or can be illegal. Because I don't believe that some totalitarian idea of "you should be friends with everyone" is reasonable, psychology just does not support it very well. You should come along and avoid causing needless harm. But I don't think people need to be required to not have angry expressions (when they're reasonable).

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If it's good because the person suffers more severe consequences if the state goes after him, logically it would be even better for the state to torture the insulter to death, because that's more severe yet. "More satisfying" is a horrifically unjust criterion for the punishment of an action.

It would also be logical to argue that your friend should be put in jail and fined for arguing against free speech, because that would be more satisfying to you, and it is good to punish those who deprive others of freedom.

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An insult is by definition an untrue statement or at least a gross exaggeration as to some characteristic or property or action of another person. If it were true it would be a kindness. Insofar as an insult is not founded properly in reason and arises generally not from some earnest will to justice then it is an actual harm that is not justifiable and therefore morally wrong and eligible for censure. But as to what constitutes an insult is problematic, as per the point above, that what to one man is an insult may be to its proponent candour. And an insult most often does contain a grain of truth, that too. That happened to me last week when my dear Seventh Day Adventist friend insisted on debating, his fairytale against my reason. I told him it was not logically possible to do (the two schemes are entirely inimical, they correspond nowhere and can have no meaningful intercourse) but he insisted, thrice over. So I assented against my best judgment and in short order told him that I honestly believed that his belief God would be nipping down momentarily to fix up, of all things, naughty corporate actor Google/YouTube (and not, say, cholera) meaning that he would be, I quote, 'foolish to act'- was utterly absurd (I believe we should avail ourselves of the other platforms to weaken Google and also to not put our eggs in one basket, that's all I was thinking). I judiciously did not point out that with how much he earns from his channel God upon his coming should not fail to note his disciple in the pay of the Devil and dispatch him to hell with all the rest. Needless to say it did not go well but I did have the opportunity to refute his charge that I was being 'deeply offensive' by saying 'No, I have told you truly what I believe in the true spirit of honest debate and that is a mark of respect.' He didn't buy that and we aren't friends anymore. He felt insulted; it is not the case, however, that he was insulted. I knew his feelings would be hurt but by his very terms I had no choice there, if I was to speak in good faith. Worth mentioning, it never for one second occurred to him that his beliefs (homophobia, his not approving of their 'lifestyle,' just one example) could be offensive to me or to others. Regardless, insult is not enough to be eligible for criminal charge. In law there are specific categories like defamation, libel, incitement to violence etc and law has done, I think, a fair job of placing down the lines. Except, case in point, with 'hate speech' where it's well and truly lost its way as with questions of gender. If someone is harrassing me and I say to them 'fuck off, idiot,' then that might be insulting and a harm, or better detriment, to them but it is too trivial to be actionable or it is unenforceable by any scheme of law. Modern law concerns itself not with what we don't like, what is distasteful to us or offends our personal moral outlook, only with what we can show is criminal by agreed standards. Except in the UK as of 2020 where a copper can now knock on your door and timorously ask you down the station to defend a Tweet expressing what is just a point of view. I add: an argument is not rendered invalid by being or containing ad hominem, in fact to dismiss such an argument is in itself ad hominem for one has complained of the person's manner and not addressed their argument.'The earth is round(ish), not flat, you idiot'- is not very nice but it is true.

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    Beau Brummell enquired "Who's your fat friend?" about the grossly overweight Prince Regent. It was true, but not a kindness..
    – CriglCragl
    Apr 7 at 10:46

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