Offensive expressions: the limits of neutral balancing tests and the need to take sides

Abstract

This article discusses the issue of offensive expressions, that is, expressions which cause harm or offence to the sensitivities and values of others. When the authorities are asked to approve an offensive expression or to protect the offensive speaker, they usually apply various types of balancing tests. At this point, the inevitable question would be which considerations should be balanced to decide whether to permit the expression or to protect the speaker, and accordingly which considerations should be excluded from the balance of reasons. It is argued in this article that when the state resolves disputes about the legality of offensive expressions, the relevant values of the offender and the relevant values of the offended should be included in the balance of reasons. More specifically, it is argued that the liberal state should take sides in the dispute, preferring liberal values over non-liberal values. A further aim of this article is to demonstrate how exactly the liberal state should take sides when a decision about the legality of an offensive expression is made.