February 4th, 2001.
"On Giving Offense."
The term offense originates with the Latin expression, offensa, being a situation when a person has suffered from a hurt or an injury. An offense might be suffered, as, for example, when one is struck with a stick or a stone. Such an offense might cause a physical injury, and, often, usually, there is a hurt to the injured person's feelings, especially when the offending event took place in such a place or in such a way so as to cause a public embarrassment. This hurt to one's feelings might well come about by calling somebody names unaccompanied by any physical force or threat of it. The feelings in the offended person are usually those that arise as he or she thinks that they are being regarded with displeasure, disfavour, and/or disgrace; not necessarily in the mind of the offender, indeed, more often, what the offended person thinks may be in the minds of his or her friends and acquaintances. Unfortunately, and in some ways fortunately, offence is usually taken only where offence is meant.
When one's feelings are hurt, what is required is appeasement, viz., to settle the strife or disorder which has come about in the mind of the offended person. What is required is a demonstration of the art of soothing and blandishment. Best it come from the offender, but, more often than not, that is not possible; the offended person can but only turn to his or her friends or family for solace. Of course, an offended person with the right case might hire a lawyer and go off to court.
The kind of law I had in mind, and to which I just referred, is the law of defamation. A civil action for defamation lies where a person's reputation has been lowered in the community due to the communication of falsehoods. A defamation suit is not a suit that an experienced lawyer would urge upon a client, indeed, such legal proceedings, it is my experience, will but inflame things. A defamation suit, in any event will only work where a particular and identifiable person has suffered damages; it is not a suit that can be taken by an identifiable class of persons. When somebody ("racist," "homophobe," "sexist," or whoever the bogeyman happens to be) hurls insults out into the air which are not directed to any particular person, then, there is not much at law that can be done about it. There has been some attempt in recent years to legislate laws, "intimidation laws," with the view to shutting people up who some person or group of them thinks should be shut up. The practical difficulty with such laws is that the act (voluntarily or involuntarily) or fact of offending, wounding the feelings of, or displeasing another is usually viewed as it affects the person offended. It is hardly possible to be prosecuting a person on the basis of the subjective thoughts of another. The primary difficulty of such laws, however, is that they run counter to certain of our constitutional rights. Intimidation laws run afoul our intellectual freedom and right of free speech.