Free Speech and Actionable Offense

Commonly heard references to a U.S. citizen's First Amendment rights aren't so widely understood as is often purported, especially in social media. Truth is, there is no full right to free speech, although it seems there might as well be.

Obscenity seems to be the primary question of free speech, rather than offense. Yet, one person's obscenity runs the risk of another person's taken offense. When does it matter?

That depends how a person is willing to look at a situation. A beginning point might be to consider whether something is obscene or offensive. Either way, it probably won't matter in any internet age . . . but that doesn't mean one should squash taken offense, necessarily. When offense it taken, consider it heartily.

It can be said that when an obscenity crosses personal lines, it can become terribly offensive. The Miller Test attempts to address such instances, without a lot of success. This is due to the usual trouble of restrictive and often dangerous community standards that would tend to hamper free will and free exercise. As it probably should be, it is of utmost difficulty to have something declared an actionable obscenity.

Mere obscenity is less threatening than directly offensive obscenity

Something that is obscene can exist without any personalized direction of offense to anyone. People and communities have worked to squash perceived obscenities, often to no avail because different people are affected in various ways by unrelated and unequal obscenities. This is why it can be difficult to prove any general offense to a degree of punishment, retribution or trial.

While an obscenity may be "shocking to a person's sense of what is moral or decent", but largely allowable in a free society, an offense can be a more serious matter; yet, equally difficult to answer effectively.


Today, there is the added difficulty of the Internet Age with which to contend. Where before a community might succeed in establishing its dominance over speech and behavior, today it's wholly unrealistic to expect that a community so large as the Internet should be able to level standards of conduct equally onto every worldly community in its realm. So, the Miller Test really doesn't stand much chance of working in a reliable way . . . demanding though it may be with its three-part requirement.

When obscenity is more then generally offensive

Still, obscenity can be a descriptive term as well, for obscene statements or actions that have intended targets (usually ideas, lifestyles and people). Such cases can sometimes be reasonably perceived as too much, especially when they incite negative, damaging behavior. Should it then be so difficult to identify offensive obscenities and have some legal recourse?

This is a question often [lightly] considered in social media. What do you think?