We have established that agreeing with the harm principle is central to liberalism. But the harm principle, taken literally, may be deeply at odds with the agenda of twentieth century liberalism. This has to do with the fact that the Mill does not define what counts as harm and that the principle does not apply in the public sphere; I will address both of these issues in turn.
S.D Smith discusses the former issue, arguing that “harm” can be interpreted to allow almost anything to be regulated. Specifically, the harm principle can and has been taken to include harms done to the public or unpleasant mental states.15 And “if psychic and communal harms are allowed to count, then the harm principle would support government's coercive
14 Ellis, “Offense and the Liberal Conception of Law,” 6.
15 See Bernard Harcourt, "The Collapse of the Harm Principle, " Journal of Criminal Law and Criminology 90 (1999): 109-194.
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jurisdiction over virtually any conduct that anyone might be inclined to regulate.”16 Bernard Harcourt, who blames the harm principle for a number of restrictions on public and private autonomy, would likely agree with this point. Harcourt argues that the principle has become so ingrained in American politics that it “is effectively collapsing under the weight of its own success.”17 He cites bath-houses closings under the guise of “preventing the spread of HIV,”
along with the proliferation of the feminist anti-pornography movement (which argued that pornography should be banned because of the harms that it does to women) as evidence that what was originally a liberal principle, has been co-opted by non-liberals. While Smith does not agree with Harcourt’s assessment of the harm principle, calling it “premature,” both theorists nonetheless agree that given its potential implications, the unrefined harm principle is not necessarily the best way to secure a liberal legal framework.
Moreover, the harm principle, taken on its face, is ambiguous about the limits of the public sphere. Mill himself argued that “as soon as any part of a person’s conduct affects
prejudicially the interests of others, society has jurisdiction over it.”18 While Mill seems to imply that all actions which affect others’ interests can be restricted, he is simultaneously skeptical about society legally imposing a particular moral code through autonomy restrictions. Similarly, Mill’s goes on to argue that many, but not all, offensive public actions ought to be restricted.
“There are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offences against others, may rightly be prohibited.” Given his use of the word “many,” it is clear that Mill does not believe that all actions should be regulated in the
16 Smith, Is the Harm Principle Illiberal?” 21.
17 Harcourt, “The Collapse of the Harm Principle”
18 Mill, On Liberty, 27
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public sphere, even if he believes that they can be. But Mill is vague about how to determine which actions these are. Consequently, if the harm principle is a formula for deciding whether certain actions are permitted, it is insufficient to resolve whether acts that are perceived to be offensive, such as public nudity, can be prohibited under liberal doctrine. We consequently need some refined version of the principle that deals with the complex implications of the public sphere if we are to decide whether public nudity can be restricted.
It is especially important to examine the changing liberal debate in order to tease out what qualifies as harm (in the public sphere.) Given that liberals are jointly opposed to “laws prohibiting an activity simply on the ground that it contravenes some moral or religious code,”
and “laws prohibiting an activity simply because the majority wish it to be prohibited,”
restrictive liberals’ belief that all public offensive acts can be restricted (even if some should not) might be considered dated and/or illiberal.19 Mill wrote On Liberty in 1859, in response to the
“tyranny of the majority” that he observed.20 Similarly, Hart, writing in the 1950’s and 1960’s, wrote in reaction to the consensus of legal moralism. Given that Hart and Mill, the two main restrictive liberals, write against legal moralism, their failure to take public autonomy seriously may speak to how they structured their argument; since their opponents did not believe in autonomy at all, Hart and Mill conceded the public sphere in an effort to conquer the private.
But as we established in Chapter One, liberals have defeated moralists, particularly in light of the development of a right to privacy: the U.S Supreme Court has established that in private, individuals have a right to do as they wish insofar as their actions do not affect others;21
19 Ellis, “Offense and the Liberal Conception of Law,” 6; Smith, “Is the Harm Principle Illiberal?”
20 Mill, On Liberty, 17-31.
21 See Griswold v. Connecticut 381 U.S. 479 (1965), Stanley v. Georgia 394 U.S. at 565 (1969), Roe v. Wade 410 U.S at 154 (1973), and Lawrence v. Texas, 539 U.S. at 558 (2003).
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it has also established that laws cannot be based on morality alone.22 Moreover, the Supreme Court’s narrowing definition of obscenity in the later twentieth century greatly expanded which forms of speech are covered by the First Amendment. This has changed the context in which liberals argue for autonomy. While liberals once fought for private autonomy against the consensus that immoral actions can be restricted, private autonomy is now a given in
constitutional law and (usually) legal theory; moreover, while Mill and Hart did not base their definition of liberalism on individual rights, the idea of a right to privacy suggests that the current working definition of liberalism uses rights as its justification for individual autonomy.
In the wake of victory, liberals find themselves faced with another question: whether and when an action’s offensiveness allows it to be restricted in public. Restrictive liberals write prior to a consensus over whether an action’s perceived-immorality was sufficient to justify it; their position on public autonomy is not specifically tailored to this intra-liberal public autonomy debate. Consequently, their theory of public autonomy can be excluded from our definition of liberalism in the public sphere. The new narrower debate accepts the premise that there are at least some actions which ought to be allowed in spite of the fact that they are offensive. And given Constitutional precedent, which upholds a rights-based notion of liberalism, we accept that individuals have a right to autonomy in public, even though we might say that such a right can be restricted if it clashes with others’ right not to be offended. Our definition of liberalism in the public sphere can be narrowed to a debate (between interest-balancing liberals and permissive liberals) over which actions can be prohibited.
22 Rick Kozell, "Striking the Proper Balance: Articulating the Role of Morality in the Legislative and Judicial Processes.” American Criminal Law Review 47 (Fall 2010): 1,555-1,575; Lawrence v. Texas, 539 U.S. at 558 (2003).
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Now that we have narrowed our understanding of liberal theory in the public sphere to one that accepts that some offensive actions cannot be restricted, we are left to adjudicate between those which can and cannot be restricted. Again, given that the harm principle is ambiguous about what constitutes harm, and since Mill does not legitimately consider the issue of public autonomy, we must modify or supplement the principle in order to define the liberal limits of public autonomy. Our new principle(s) must not only be rights-based, it (they) must provide a means for adjudicating which actions can be restricted. Modifying the harm principle is essential to deciphering when liberal governments can enact mandatory privacy restrictions.
III. Feinberg’s Illiberal Offense Principle: A Case Against Interest-Balancing