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This chapter presents a legal and constitutional examination of the legitimacy of ‘offence’ as a ground for limiting expression by the coercive force of law. It sets out to tackle a number of questions. First, it discusses the likely outcome of a challenge before the European Court of Human Rights to national authorities' restrictions on expressive activities, where those restrictions rest on the claim that the expression in question does or is likely to cause offence to genuinely held religious beliefs. It discusses some reasons in favour of tolerating offensive expression, including what for many is the least deserving form of offensive expression, namely, ‘gratuitously offensive’ speech. Finally, some issues around the outer limits of offensive expression are explored.

This chapter considers the question of whether satire that ridicules a religious figure or the core tenets of a religious belief should receive different constitutional protection than that afforded to political satire. It examines two possible models that seek to resolve the tension in principle: the U.S. model, under which freedom of speech enjoys pre-eminence; and the Israeli model, that protects human dignity as the principal value. In outlining the Israeli approach, the chapter analyzes an Israeli case that led to the first criminal conviction for the violation of an act prohibiting the publication of material calculated to outrage religious sentiments. It then addresses some normative and institutional features that separate the U.S. and the Israeli approaches. Moving beyond comparative legal analysis, the chapter puts forward the hypothesis that the source of the difference in jurisprudence arises at least in part out of a different cultural perception regarding the core meaning of ‘speech’ or ‘expression’s in these two jurisdictions. Drawing upon this cultural understanding, it is suggested that perhaps it is passion, not merely reason, that organizes the realm of public discourse. The chapter concludes with a brief comment on the possible limits of relying on foreign sources in some (passion-based) cases.

In the course of the twentieth century, flag desecration came to be understood as symbolic speech offensive to observers. In 1989, the Supreme Court declared state legislation prohibiting flag desecration unconstitutional on the grounds that causing offense does not override freedom of expression. In response, Congress passed legislation prohibiting flag desecration as inherently wrong, even in private. In 1990, the Supreme Court, unable to accept an arbitrary statue, interpreted the law as preventing offense and declared it unconstitutional. Viable flag protection legislation must be directed at the means in which the message is expressed rather than at the message. Such legislation could be based upon a neutral interest in protecting rituals that promote national solidarity. Three strategies for implementing legislation to protect the flag are the insistence on the use of “effective alternative means” of communication, developing a collective sense of public decency and defining the duties of respect that the individual owes the community.

The Terrorism Act 2006 introduced into UK law a new offence of encouragement of terrorism. Statements which are likely to be understood as a direct or indirect encouragement or other inducement to the commission of terrorist acts may be caught by the offence. One clause in the Act was particularly controversial: it provides that among the statements likely to be understood as indirectly encouraging an act of terrorism are those glorifying such acts, at least where members of the public would reasonably infer that they should emulate them. This chapter examines the free speech arguments relevant to the new offence of encouragement of terrorism, in particular whether the offence is compatible with the freedom of political speech required by a commitment to liberal democracy.

Of all the areas of twentieth-century constitutional jurisprudence, that of free speech has had the most dramatic transformation. From a state of insignificance, the First Amendment has been applied against the states in the Due Process Clause of the Fourteenth Amendment and made the basis for invalidating restrictions on the expressive activities of political and religious minorities, corporations, contributors to political campaigns, and commercial advertisers.

This chapter examines the ideal of ordered liberty in American constitutional tradition. It begins with an overview of the ideas of Thomas Friedman and Albert Einstein about the universe and relates them to the realm of the modern American university, along with the university's moral and legal jurisdiction to judge expression and opinion. It then explores the “marketplace of ideas” metaphor to describe public universities and goes on to discuss the constitutional struggle to balance liberty and order, First Amendment's “neutrality principle” in relation to freedom of speech, the so-called “carve-outs” of the general marketplace, and the dual character of the university as a microcosm of society when it comes to free speech principles. It also assesses the carve-outs to the “avert your eyes” principle involving the protection of children and of certain sanctuaries of privacy from offensive speech, the body of doctrines known as “public forum law,” hate speech and threats on campus, and free speech rights of faculty and students.

This chapter examines the ideal of ordered liberty in American constitutional tradition. It begins with an overview of the ideas of Thomas Friedman and Albert Einstein about the universe and relates them to the realm of the modern American university, along with the university's moral and legal jurisdiction to judge expression and opinion. It then explores the “marketplace of ideas” metaphor to describe public universities and goes on to discuss the constitutional struggle to balance liberty and order, First Amendment's “neutrality principle” in relation to freedom of speech, the so-called “carve-outs” of the general marketplace, and the dual character of the university as a microcosm of society when it comes to free speech principles. It also assesses the carve-outs to the “avert your eyes” principle involving the protection of children and of certain sanctuaries of privacy from offensive speech, the body of doctrines known as “public forum law,” hate speech and threats on campus, and free speech rights of faculty and students.