Prevent harm, allow offence?

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. 

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Comments (3)

Automated machine translations are provided by Google Translate. They should give you a rough idea of what the contributor has said, but cannot be relied on to give an accurate, nuanced translation. Please read them with this in mind.

  1. We have been studying hate speech in the Anglophone world in our High School English language and literature class for the past few weeks. We focused on malicious intent, libel and denigrating language and the right to freedom and attempted to put these factors of hate speech in context. This article focuses on the debate whether freedom of speech should be restricted to offset offensive language.

    Freedom of speech is crucial to maintaining a democratic society and we do believe that it should be prioritized in the majority of cases, but not all. Social networking has allowed people to easily harm others through posts and messages online; in fact, according to the Megan Meier Foundation, social networking has been involved in 47% of teenage suicide cases. Some of these cyberbullying cases are borderline between offense and harm, examples to which you will allude to in this essay. But we disagree that erring on the side of allowing offensive expression would be for a good reason: often there is malicious intent behind these words and they indeed do have grim consequences. In such circumstances it would be irresponsible for us to prioritize our freedom of expression when the words are provoking harm, are of malicious intent, or are disparaging.

    In borderline cases where there is malicious intent, legal intervention should be made available. When you draw the line between offense and harm you describe harm as “to mock or disparage people’s convictions repeatedly, in a calculated attempt to foment outrage, resentment or humiliation.” Offense on the other hand is merely the projection of another’s beliefs on to someone. In your eyes the victim of offense is responsible for their own feelings, but with the availability of the internet that is no longer the case. Online you can be bothered 24/7, and the audience is much larger than it would ever be in real life. These exaggerated conditions need to be considered. Dave Knight, a teenager in Burlington, Ontario, was made fun of for several months behind his back. Other students in his class made a website where they posted pictures of him and made offensive jokes about him, which led to a number of hate messages. Cases like this one we do not agree should be legal.
    We have to consider the consequences of offense and its severity. Erring on the side of freedom of expression isn’t always worth it. The Westboro Baptist Church in the USA is an infamous borderline case. They are known to hold anti-gay protests at funerals for men who have died for their country at war. In addition, they are known for their hateful messages and derogatory remarks. We believe this should be classified as mental harm and should be illegal. It is not the right of another person to project their beliefs in such a hateful manner on another person. This has obvious malicious intent and is in no way an attempt at constructive debate.

    To conclude, we believe that offensive language that is denigrating, disparaging, including libel or has malicious intent to harm another should not fall under the right to freedom of speech. In these so called borderline cases it is essential to understand the nature of the offense as well as its potential consequences.
    Conor, Kelly and Shauna

  2. Does speech include written words? If so what if not responded to? Having written protesting to self declared leaders of the Church of England about what I see as their perverse abuses of power, position, trust, deception, process and fraud they ignored. Is that free speech?

  3. Chai Jing(柴静), a China well-known TV investigative reporter, received an interview called the original of independence.
    She said:
    When GuZhun(顾准), a great thinker who is the first person to put forward the theory of socialist market economy, encountered the Cultural Revolution, he just told others who were going to hurt him ‘I am reading history now’. What I learned from him is everyone has anger, which is a human instinct. But you need surpass this instinct. That is to say, you couldn’t go far if you only have anger. In other words, change from angry to observation. You have to wait for the opportunities. Once you can easily do something, you already get ready for it.
    The reason why I quoted this translation is to state my opinion. Offense and hurt are both ways to object to free speech. Deservedly, rational speaking should come first.

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