U.S.

Justifications for Offensive Speech

The U.S. Supreme Court case Hustler Magazine Inc. v. Fallwell1 fleshed out the United
States supreme regard for freedom of speech above other values. In light of Hustler Magazine
depicting the Reverend Jerry Fallwell in a satirical and promiscuous manner, the Court ruled that
Fallwell was a public figure and could be publically insulted.2 Moreover, the Court claimed that
words which inflict psychological injury or harm fighting words were compatible with the
first amendment. In allowing offensive speech, the Court believed that it was enabling the free
flow of ideas. The Supreme Court determined that an offensive image, even if it is untrue, could
be published because there is no such thing as a false idea.3
The preceding court case Virginia v. Black4 revealed the Supreme Courts opinion in
instances when the right to free speech and the threat of violence are in conflict. As Barry Black,
Richard Elliot, and Jonathan OMara were convicted for burning a cross outside of their own
property, the Supreme Court ruled that the state of Virginia was right in banning cross-burning in
this instance since these men clearly intended to intimidate a targeted audience. What was
significant about this case however was the Supreme Courts rule that cross-burning cannot
always be assumed to be done with the intention to intimidate5. While this case was the
exception, the Court emphasized that symbolic speech is subjective; intentions must be fleshed
out in order to reveal whether the speaker meant harm or no harm. In cases where there is no
violent threat, offensive speech is permitted.

485 U.S. 130 (1967).

Fein, Bruce, Hustler Magazine v. Fallwell: A Mislitigated and Misreasoned Case, 30 Wm. & Mary L. Rev. 905
(1989).
3
Id. at 909.
4
538 U.S. 343 (2003).
5
Fein, Bruce, Hustler Magazine v. Fallwell: A Mislitigated and Misreasoned Case, 30 Wm. & Mary L. Rev. 905
(1989).
2

Following Virginia v. Black, the Supreme Court emphasized in Snyder v. Phelps6 that
speakers have a right to free and offensive speech so long as it peaceful. Though their speech
was insensitive and offensive, the Westboro Baptist Church were allowed to picket at funerals
since they expressed public concerns in a public space and notified authorities that they intended
to protest in front of the church. Whether or not the deceased persons dignity was harmed did
not matter.
Therefore, it is clear from these three cases that the Charlie Hebdo publications would be
allowed in the United States on the basis that the free flow of ideas is valued, the cartoonists did
not intend to incite physical violence, and the cartoons were published in the print medium.
Regarding laws on discrimination and defamation, Professor Kahn argues that race and
religion are regarded differently.7 L. Becket Graham, program officer for the Becket Fund for
Religious Liberty, articulates the distinction of race and religion, which is telling of the popular
view that they are separate:
Race is something I simply cant change. My skin is white and that is not something I
choose or am able to alter. Religion on the other hand, even as it has communal expression and
purpose, is something that exists in the forum internum and calls to choice of the conscience.
Moreover, my understanding of belief and ultimate truth will probably continue to change,
evolve, and mature, although I believe that the truth itself does not. Thus, the law must treat race
and religion differently.8
Accordingly, religiously offensive speech will be justified by allowing marketplace of
ideas.9 The next section of this paper evaluates Germanys influential cases in regard to
offensive speech and its justifications for restricting the Charlie Hebdo publications.
Offensive Speech in Germany

580 U.S. 206 (2011).

Kahn, supra note 18, at 410.

Kahn, supra note 18, at 411.

8
9

JOHN STUART MILL, ON LIBERTY (1860).

While the United States has an absolute regard for free speech, Germany has an absolute
regard for human dignity. The Mephisto10 case was very telling of Germanys position when
artistic speech and offensive speech are in conflict with one another. In the Mephisto case, the
adopted son of Gustaf Gruendgens brought to trial Klaus Mann for publishing a fictional book,
Mephisto, which was clearly written about his deceased father in an insulting and distortful
way.11 While Article 5.3 of the Basic Law states that, Art, as well as science, research and
teaching, shall be free, the German Court recognized that there was a conflict with the first
premise of the Basic Law.12 The Court declared, The right of freedom [of art] is not granted
without limits. Like all basic rights, the guarantee of freedom in Article 5.3. first sentence of the
Basic Law presumes the Basic Law's image of man, which is that of man as being a personality
who is responsible for his own life and who develops freely within the social community.13 The
German Court found that human dignity was more important than freedom of speech.
Accordingly, the Court determined that that Gustaf Gruendgens right to dignity still existed
even though he was dead.
In the Deutschland Magazin14 case, the German Federal Court reaffirmed that it has
supreme right to intervene and determine the outcome of a case when two conflicting principles
come into play.15 The Deutschland Magazin case involved a labor press union service
distributing an article that asserted the conservative Deutschland Magazin was a right radical
hate sheet.16 Since the statement was already made, the German Court ruled that the labor union

10

11
12
13

30 BVerfGE 173 (1971).

RAY D. MADOFF, IMMORTALITY AND THE LAW: THE RISING POWER OF THE AMERICAN DEAD 126 (2010).
HUMAN & CONSTITUTIONAL RIGHTS (Apr. 12, 2015), at http://www.hrcr.org/safrica/dignity/30bverfge173.html

Id.
42 BVerfGE 143 (1976).
15
Olha O. Cherednychenko FUNDAMENTAL RIGHTS, CONTRACT LAW AND THE PROTECTION OF THE WEAKER
PARTY, 83 (2007).
16
Quint, Peter E., Free Speech and Private Law in German Constitutional Theory, 48 Md. L. Rev. 247 (1989).
14