Robert Simpson suggests a way to distinguish between harm and offence.
In a society that values expressive liberty, being offended by the speech of others is one of the burdens we all have to bear. For free speech advocates, this claim is something of a truism. We can allow that when speech is positively harmful, we will have to balance expressive liberty with the legitimate aim of harm-prevention. But when the only thing at stake is offence, expressive liberty must be firmly prioritised.
What sort of objections might we encounter in defending this view on offence? One worry is that this view underestimates the way offence can impinge on our liberty. The legal theorist Joel Feinberg suggests that offence is comparable to nuisance. Like nuisances, feelings of offence don’t harm us or impair our liberty directly. However, they do make unavoidable demands on our attention and peace of mind, and thus, Feinberg says, liberals should regard gratuitously offensive behaviour as liable to legal restriction, under roughly the same conditions as gratuitous nuisance-causing behaviour.
However we respond to Feinberg’s case for an ‘offence principle’, there is a further problem about how we should distinguish offence and harm in the first place. Obviously there are harms that don’t involve any element of offence. It is possible to be harmed – e.g. physically, financially, or in one’s social standing – without feeling resentful about the harm indeed, without even being aware of it. The question, rather, is how we should distinguish between, on one hand, the severe, liberty-impairing feelings that we would normally characterise as mental harms (e.g. feelings brought on by harassment, threats, or emotional abuse), and on the other hand, feelings of resentment or dislike that constitute mere offence.
The distinction is not a matter of how authentic the feelings in question are. Some people may feign feelings of offence to try to influence others, but offence is evidently genuine in many cases. Nor can the distinction just be elaborated in terms of how severe the feelings are. The displeasure and indignation felt by an offended person (e.g. due to the mockery of his religion) may be similar to, or even greater than, the displeasure or indignation felt by a victim of mental harm (e.g. someone who is subjected to ongoing verbal harassment).
But then, if it is not a matter of authenticity or severity, where does the distinction reside? Firstly, and most importantly, there is a sense in which the offended person, unlike the victim of mental harm, bears some responsibility for her own feelings. The offended person is negatively affected by the thing that offends her, only because of (i) what she happens to believe or value, and (ii) how she expects others to regard her beliefs and values. In the terminology of the philosopher Judith Thomson, feelings of offence are a form of ‘belief-mediated distress’. It is true that the offended person’s feelings are instigated by other people’s behaviour. The point, however, is that these feelings would not occur in the absence of the offended person’s deeply-held and contingent convictions. By contrast, the negative feelings that we would classify as mental harms are just those feelings which arise in cases involving deliberate threats, targeted abuse, harassment, and so on: cases in which the aggressor’s hostile behaviours – rather than accidents of the victim’s worldview – are to blame for the negative feelings. Secondly, and relatedly, feelings of offence are not dependent upon an individual’s feelings about how she herself is treated. Mental harms are something I suffer as a result of what others do to me. By contrast, I feel offended not necessarily because of how I am treated personally, but because I regard certain behaviours as profoundly intolerable, irrespective of whether they have any direct impact on me.
This way of drawing the distinction goes some way towards vindicating the free speech truism that we began with. Why isn’t offence ever a legitimate reason to restrict speech? Because unlike mental harm, offence occurs as a consequence of people projecting their own values and attitudes onto the lives of others. There is nothing to stop us from doing this, but it would be illiberal for the law to intervene when our other-regarding expectations or ideals are disappointed – after all, the law’s first and foremost purpose is to prevent us from harmfully interfering with one another’s liberty.
Unsurprisingly, the difficult cases are those that lie between offence and harm as I have characterised them here. It is one thing to accidentally offend someone in criticising her deepest convictions. It is another thing to mock or disparage people’s convictions repeatedly, in a calculated attempt to foment outrage, resentment or humiliation. The liberal’s distinction between harm and offence imagines a neatly divided picture of social intercourse: sometimes we are living our own lives and pursuing our own aims, other times we are acting with hostility and ill-intent towards others. Social intercourse in the real world is much less tidy. Nevertheless, some kind of distinction between harmful speech and merely offensive speech seems necessary, so far as we want to put into practice the essential liberal idea, that the values and convictions of some should not dictate how others live and what they say. If we err on the side of allowing offensive expression in the difficult borderline cases, it will be for good reasons.
Robert Simpson is a DPhil student in Philosophy at Somerville College, Oxford.