What was Said and Heard

Perceptions matter. We can discuss intent of communications, but in the end those who see or hear those communications may have perceptions different than the intent. 
Recently, a manufacturer made the news for withdrawing a product from the market, it was emblazoned with what has come to be referred to as the "Betsy Ross Flag." CBS News reported that the decision to pull the product from stores was based upon a celebrity complaint to the company that this flag "heralded back to a time when black people were enslaved and that it has been appropriated by white nationalist groups." Accepting that may not be the only perspective, it is important to acknowledge this as someone's perspective. 
There were other perspectives in the news. FoxNews reported that Antidefamation League data might not support the perspective of supremacist appropriation of this flag. One official of that organization was quoted: "it's not a thing in the white supremacist movement.” Various Internet cites and one news radio station thereafter published pictures of the flag on display at President Obama's inauguration. Thus some perspective seemingly at odds with the celebrity's assertions regarding the flag. 
Coincidentally, another celebrity made the news that week for celebrating on a sports field. After scoring, she "pretended to take a sip of tea with her pinkie up," and "appeared to be 'trolling' her (British) opponents," as reported by Sporting News. The British Broadcasting Company also covered the story extensively, as it was a British team against which this sports celebrity was competing (tea apparently holds a special place in the UK). There, the celebrity downplayed her exhibition, and claimed she intended a different message: "that's the tea - that's the situation" is what she said she intended, not a swipe at the United Kingdom as a whole. 
I was reminded in these of Cohen v. California, 403 U.S. 15 (1971). This is a favorite of law school professors, as they instruct regarding the First Amendment to the United States Constitution. Paul Cohen was arrested for walking through a California courthouse wearing a jacket upon which was emblazoned a phrase similar to "Duck the Draft," but which used a more offense word The Court specifically noted that at the time "there were women and children present in the corridor." Cohen, 16. Many will remember that language generally at least seemed more polite in some contexts those many years ago. 
The Cohen Court reminded that written expression is "speech," the protection of which may be recognized by the First Amendment to the United States Constitution. As such, the Court explained, the speech could be constrained based upon the "manner in which he (Cohen) exercised that freedom, not as a permissible prohibition on the substantive message it conveys." Mr. Cohen's conviction for "maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person" was therefore reversed by the Court. 
Cohen is a long-standing precedent that establishes that we may all periodically be exposed involuntarily to the thoughts of others, and that we may sometimes disagree with or even be offended by them. There have been a fair number of generalities drawn from Cohen, and it has therefore historically been both followed and distinguished by various courts. As an aside, the Court has similarly concluded that actions (such as "sipping the tea") are also speech. see Texas v. Johnson, 491 U.S. 397 (1989). 
Another interesting Supreme Court analysis of free speech is Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675. There, the Court reviewed constraints on speech, not in a public forum like the courthouse in Cohen, but in a school. It noted: 
"the role and purpose of the American public school system is to prepare pupils for citizenship in the Republic ... It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” Bethel at 681 (1986) (citations omitted). 
The "where" of speech is thus an element perhaps worthy of consideration in certain situations. Thus, what is protected speech in one location or setting, might nonetheless be appropriately regulated in another.
As in so many other aspects of society, there is conflict. One person's right to privacy may have to be weighed against some other person's right to expression. What is appropriate in a courthouse may be less appropriate in a school. The subject is complex. The U.S. Supreme Court has also said that we, the offended, have some duty to avoid the offense.
In 1975, the Court reviewed enforcement of a Jacksonville, Florida ordinance under which a drive-in theater was prosecuted because intimate scenes could be observed by those outside the theater (yes, there was a time us old people were young people, and lacking a world wide web, we parked our cars in front of huge screens and watched movies in a semi-social, semi-private environment that is simply alien to today's youth). The Court said: 
"When the government attempts to regulate the content of otherwise protected speech to protect the privacy of the unwilling viewer, generally the burden falls on the viewer to avoid bombardment of his sensibilities by averting his eyes . . .. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). 
And, similarly our ears. In the end, perhaps much of offense comes down to perspective. One person's art may be another's obscenity. One persons poetry is perhaps another's smut. One might intend to say "that's the situation" with an imaginary tea cup tip, and instead might off-put an entire kingdom. One might perceive the Betsy Ross Flag as appropriate inaugural decoration or as a symbol appropriated by "white nationalist groups." One might perceive any particular slogan or symbol as positive or negative. But what one perceives may well be what is true in that particular personal perspective alone. Similarly to the the old adage "beauty is in the eye of the beholder," perhaps offense is as well? 
Whether the observer or listener is correct may matter less than the person's belief (most would find it unlikely that President Obama adopted and displayed a symbol, the Betsy Ross Flag, appropriated as alleged regarding the shoe). If one is offended, the intent of the speaker (or person publishing the image or symbol) may mean little to that offended party. For whatever reason, be it context, location, or reception, any message may cause offense even without the intent of the speaker/publisher. There is some tendency to dismiss such singular personal perceptions, or even to deride those who complain. It is possible that one could be offended, however, without necessarily being oversensitive. It is also possible that some in society may actually be too quick to feel offense.
Does it matter that the message received is not necessarily the message sent? Alan Greenspan was quoted once as saying "I know you think you understand what you thought I said but I'm not sure you realize that what you heard is not what I meant.” I recall that being on various posters over the years. Does it matter what one means? Does intent matter? Or, should a person be judged based upon the individual perception of some viewer or listener? 
In the end, there is much that offends others. In various professional environments, I have known people to be offended by the volume of fragrance someone wears, where or how someone parks their vehicle, verbal statements someone makes (including self-deprecation), lapel pins that are worn, holiday decorations and other personalty that is displayed, and more. There is plenty about which one might be offended in a professional environment. And, I would posit that most likely much of this has reasonably innocuous intent (though I vividly recall a coworker I once had that would always wear his Dallas Cowboys' jacket to work whenever that team defeated the Redskins; coincidentally, that's a name has been deemed derisive by some according to CBS News). 
Are we all to be perpetually offended? Or, could we all take a step back and consider that it is perhaps possible that what offends us may not be intended so by others. Even if we might sincerely perceive offense, might we favor our cohabitants with the benefit of the doubt? Perhaps something is an intended offense, and perhaps it is merely a lack of courtesy or consideration? Maybe we are individually offended for reasons some speaker could never predict? In the end, none of us can anticipate how others will perceive our words, actions, or dress, more or less control it. Despite this challenge, we are all going to have to coexist. 
As this was written, yet another story made the news. According to FoxNews, a group of police officers were asked to leave a restaurant, because their presence cause another customer to "not feel safe." Is there an individual right for each of us to be unequivocally happy and content? If someone is wearing Metallica shirts, might I invoke my perceptions and ask management for them to be removed (you know how heavy metal fans are, LOL; if you are offended, please remove Metallica/heavy metal from this paragraph and insert music which you do not personally care for; one person's Metallica may be another's Justin Bieber?). 
From a personal perspective, thus, it is a difficult challenge to balance the expressions of one against the perceptions of another. Commercially, it may be easier, for a shoe company to simply elect to forgo the potential for conflict, perceptions, and controversy by not selling a particular flag shoe. But in other commercial enterprises, removing any particular person or group, for the comfort of any other, may be a course fraught with peril both social and legal. Irrespective of the intent of such an enterprise, the perspectives of various consumers may be affected. 
The challenges of these conflicts will persist. There is palpable frustration both between various people and groups, and also frustration with the perceptions of some people and their reactions. Perhaps it would not hurt any of us so much to respect that others do not share our feelings or even our perspectives? Maybe we can choose to avert our eyes (or ears) at times? Maybe we can choose to give the benefit of the doubt and hope that those who offend us do not necessarily mean to do so?
Years ago, Rodney King was quoted regarding our society and some of our challenges. According to the Mercury News, his plea is engraved on his gravestone. Perhaps it bears us repeating his query periodically: "Can't we all just get along." Or, if that's too hard, can't we all at least just try? 
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    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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