What are some arguments against insulting being illegal

Question

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).

Answer 1

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)

Answer 2

• 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.

Answer 3

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 cues 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 deal 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 a supposef slander. In working class groups much importance is put on 'sorting things out' 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 having to make 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 admittedly 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 need to 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 show them for what they are, 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 partisan shibboleth. An interesting example of it though is that 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 US free speech law (the Creeper Act 2018 triggered by concerns about this only banned imports). Germany, and even the UK, view free speech differently. But, 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)

Answer 4

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).

Answer 5

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.

Answer 6

It's essentially a conflict of interest between 3 fundamental legal principles. In Germany it would be Article 1, 5 and 103. The individual right to dignity (Art.1), the freedom of expression (Art.5) and the definition of laws (Art.103).

So the individual has a right to the protection of their dignity, though the individual has also a right to free expression and finally it should be known before a deed whether it is legal or illegal, so that you can't be retroactively punished for things that weren't illegal when you did them.

And so it's not an easy black/white situation but you'd have to make a deliberate decision what you value more or less and in what situation.

Like the words "insult" and "Beleidigung" literally stem form the Latin words for "to jump at/on someone" and "Leid" is basically the German word for harm and suffering so a Beleidigung is the act of causing that.

So no insults are not just words they are a verbal acts aimed to harm another person and it's quite reasonable to have a protection of the rights of the individual not to be harmed. In all seriousness a mutual refrain from causing deliberate harm to other people is probably the most basic form of a social contract and it's hard to imagine one without it.

Likewise if you want people to refrain from harmful and violent behavior you've got to provide alternatives and the most potent and important among them is probably the free expression of ideas. It's especially important as a lack of communication might contribute to miscommunication, taking offense where none was given and conflict because of that.

And last but not least insults face the severe problem that while there is some surprisingly consistent "we know it when we see it"-definition of it, it's actually hard to formulate a blacklist of words gestures and whatnot, without having billions of exceptions and without it being obsolete the second it's published because other words would take the place. Because it's usually not about the words or gestures but about the intent and the context which is something that is notoriously hard to account for. While obviously knowing that you are committing a crime before you do it is a fundamental legal principle and without it you'd be subject to massive tyranny where any action could retroactively be called illegal and punishable.

So if it really just comes to clearly identifiable insults the situation is pretty clear. They do harm or at the very least they are intended to do harm, while they don't contribute meaningfully to the expression of opinions. Like on the contrary adding insults to your declaration of your point of view is likely going to derail a conversation and hinder meaningful communication. So if free expression is meant to reduce conflicts than insults don't contribute to that goal.

So if it were just about that, the problem would be easy because it's a win-win situation of reducing harm without sacrificing anything. That being said you're just one step away from a really complicated trilemma.

A good example would be the discussion around this Kurt Tucholsky quote:

For four years there were entire square miles of land upon which murder was obligatory, whereas a half-hour's distance away it was strictly forbidden. Did I say "Murder"? Of course murder. Soldiers are murderers.

Especially the highlighted part. Where there was apparently fierce debate for decades as to whether that is an obvious truism, whether it's an insult to soldiers, probably some technical discussion as to whether it's murder, manslaughter or legal homicide, whether that applies to all soldiers, whether soldiers are as a collective are insultable, which means as to whether they can be subject to insult. The thing is insult is a personal offense and usually only the victim of the insult is able to press charges, with the exception of public officials where also their superior could press charges on their behalf. So collectives and groups are usually not insultable meaning an insult against a group doesn't count unless it is directed at identifiable members of that group or if that group serves a public function and is acting as a legal entity or something like that (not a lawyer).

So on the one hand the pacifist has a real point arguing with freedom of expression, because what happens in war is de facto what we'd call criminal in any other context, that's not even an exaggeration that's just plain obvious. On the other hand calling someone a murderer is quite a defamation as it's the most severe crime in many jurisdictions. Also the state is in a conflict of interest here, because on the one hand it employs the soldiers, legalizes their profession and as an employer also has an obligation to defend them against attacks while on duty. On the other hand it has also an obligation to it's citizens and must allow for criticism and free expression regarding it's actions which in the case of war is especially vital as often enough war creates tyrannical situations where propaganda dominates the discourse.

And if it's unclear what you can and can't say in situations that are of vital political interest that's not a good thing.

So there's probably less of a straight forward answer as to whether it should be legal or illegal and it's more of lines being drawn somewhere, which are subject to continuous debate once you step outside of the obvious.

Answer 7

My two cents.

Let's start from the beginning. People can talk and through their speech acts, one can attack another person, as much as one can attack the other physically (1).

Insults are a fact. And people historically have responded to insults in various, usually aggressive, ways (eg insulting back untill escalation, fight, duel,..).

Now, this reality needs to be addressed in a society which wants to minimise social conflict and promote social harmony.

Of course, insults can have almost infinite variations, depending on context and many other things. And there is always the danger of misrepresenting norms and descriptions to fit some other purpose. Certainly a society cannot formalize all these variations. But in any case it needs to address a reality that can pose problems. So in some sense it needs to formalize some speech acts that can fall under this category and handle them legally.

In democratic societies, where freedom of speech is not only important, but a constitutive part of the society, then there needs to be a delicate balance between these two needs (2).

Aristotle would call this virtuous balance harmony or the golden mean, as he considered both other extreme options to be worse than it (ie censorship and abuse) (3).

Closing this, if one thinks about it, the analogy is similar to freedom of movement (a basic right) and protection against physical attack (also a basic right)(4,5).

1. It is a demonstrable fact that emotional/social pain produces same results as physical pain
2. Whatever needs to be said, it can be said in an alternative non-insulting way. Thus truth is not really blocked from being expressed.
3. "In this respect, Aristotle says, the virtues are no different from technical skills: every skilled worker knows how to avoid excess and deficiency, and is in a condition intermediate between two extremes. The courageous person, for example, judges that some dangers are worth facing and others not, and experiences fear to a degree that is appropriate to his circumstances. He lies between the coward, who flees every danger and experiences excessive fear, and the rash person, who judges every danger worth facing and experiences little or no fear. Aristotle holds that this same topography applies to every ethical virtue: all are located on a map that places the virtues between states of excess and deficiency." (SEP)
4. What does it mean to ‘offend’, ‘insult’ ‘humiliate’ and ‘intimidate’? Section 18C of the Racial Discrimination Act (Cth) and the problem of harm
5. Human Dignity as basic human right in Humiliation, Degradation, Dehumanization. Human Dignity Violated

Answer 8

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.