The Volokh Conspiracy - The Mohammed Cartoon Controversy and Trends in the U.S.:

In the wake of the Mohammed cartoon controversy, and the often craven reaction in Europe and the U.S., I thought the concluding paragraphs from my You Can't Say That! have special resonance:

One price of living in a free society is having to tolerate those who intentionally or unintentionally offend others. The current trend, however, is to give offended parties a legal remedy, so long as the offense can be construed as "discrimination." Yet the more the American legal system offers people remedies for offense, the more they are likely to feel offended. This is true for two reasons. First, as economists point out, when you subsidize something, you get more of it. Therefore, if the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Second, economists have also noted the psychological endowment effect, which, in effect, means that people tend to consider something they own to be more valuable than it would be if they did not own it. Similarly, once people are endowed with a right, they tend to overvalue it and react passionately when it is interfered with.

Unfortunately, Americans increasingly coddle and even reward the hypersensitive, perversely encouraging ever more hypersensitivity. In one notorious incident, a Washington, DC city official was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is actually an innocent synonym of Scandinavian origin for "miserly." It should hardly be surprising, then, that people are suing for and winning damages when they are offended by colleagues at work, when they are excluded by private clubs or turned down as roommates, or when they are fired from church-run schools after reneging on promises to obey church doctrine. Neither should it be surprising that legislatures are increasingly succumbing to the temptation to expand the laws to protect from discrimination every group with a grievance, including the vertically challenged (short people, protected in San Francisco and Michigan), the body-pierced (among those protected in various jurisdictions, including Washington, DC, that ban discrimination based on personal appearance), recovering drug addicts (protected by the federal Americans with Disabilities Act and local equivalents), and the Hell's Angels (protected, along with other motorcycle gang members, in Minnesota).

Preserving the liberalism that defines the United States, and the civil liberties that go with it, requires Americans to show a certain level of virtue, including a phlegmatic tolerance of those who intentionally or unintentionally offend and sometimes—when civil liberties are implicated—even of those who blatantly discriminate. A society that undercuts civil liberties in pursuit of the "equality" offered by a statutory right to be free from all slights, protected by draconian antidiscrimination laws, will ultimately end up empty-handed with neither equality nor civil liberties to show for its efforts. The violation of civil liberties required to achieve this kind of equality will diminish constitutional restraints on the government, while the additional power garnered by the government, introduced for noble reasons, will end up in the hands of people who use it to promote their own interests. In these days of the Oprahization of public discourse, when even presidential candidates swear that they feel the public's pain, asking Americans to display a measure of fortitude in the face of offense and discrimination is asking for a lot. But in the end, it is a small price to pay for preserving civil liberties.

	[David Bernstein, February 22, 2006 at 11:46pm] Trackbacks The Mohammed Cartoon Controversy and Trends in the U.S.: In the wake of the Mohammed cartoon controversy, and the often craven reaction in Europe and the U.S., I thought the concluding paragraphs from my You Can't Say That! have special resonance: One price of living in a free society is having to tolerate those who intentionally or unintentionally offend others. The current trend, however, is to give offended parties a legal remedy, so long as the offense can be construed as "discrimination." Yet the more the American legal system offers people remedies for offense, the more they are likely to feel offended. This is true for two reasons. First, as economists point out, when you subsidize something, you get more of it. Therefore, if the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Second, economists have also noted the psychological endowment effect, which, in effect, means that people tend to consider something they own to be more valuable than it would be if they did not own it. Similarly, once people are endowed with a right, they tend to overvalue it and react passionately when it is interfered with. Unfortunately, Americans increasingly coddle and even reward the hypersensitive, perversely encouraging ever more hypersensitivity. In one notorious incident, a Washington, DC city official was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is actually an innocent synonym of Scandinavian origin for "miserly." It should hardly be surprising, then, that people are suing for and winning damages when they are offended by colleagues at work, when they are excluded by private clubs or turned down as roommates, or when they are fired from church-run schools after reneging on promises to obey church doctrine. Neither should it be surprising that legislatures are increasingly succumbing to the temptation to expand the laws to protect from discrimination every group with a grievance, including the vertically challenged (short people, protected in San Francisco and Michigan), the body-pierced (among those protected in various jurisdictions, including Washington, DC, that ban discrimination based on personal appearance), recovering drug addicts (protected by the federal Americans with Disabilities Act and local equivalents), and the Hell's Angels (protected, along with other motorcycle gang members, in Minnesota). Preserving the liberalism that defines the United States, and the civil liberties that go with it, requires Americans to show a certain level of virtue, including a phlegmatic tolerance of those who intentionally or unintentionally offend and sometimes—when civil liberties are implicated—even of those who blatantly discriminate. A society that undercuts civil liberties in pursuit of the "equality" offered by a statutory right to be free from all slights, protected by draconian antidiscrimination laws, will ultimately end up empty-handed with neither equality nor civil liberties to show for its efforts. The violation of civil liberties required to achieve this kind of equality will diminish constitutional restraints on the government, while the additional power garnered by the government, introduced for noble reasons, will end up in the hands of people who use it to promote their own interests. In these days of the Oprahization of public discourse, when even presidential candidates swear that they feel the public's pain, asking Americans to display a measure of fortitude in the face of offense and discrimination is asking for a lot. But in the end, it is a small price to pay for preserving civil liberties.