RESULTADOS ANÁLISIS INICIAL

We turn now from action to expression. It is sometimes thought that, in the words of the children’s nursery rhyme, ‘sticks and stones will break my bones, but words will never hurt me’. However, as Thomas Scanlon suggests, expression can cause harm (Scanlon, 1972: 210). His examples include: (a) direct physical harm, as when your voice causes an avalanche; (b) a situation when one person intentionally places another in apprehension of imminent bodily harm as a result of a threat (‘assault’

as distinct from ‘battery’); (c) public ridicule to the point where a person’s reputation and livelihood are destroyed; (d) shouting fire in a crowded theatre; (e) issuing an order to another; (f) advertising the means to cause destruction (Scanlon, 1972:

210–12). Scanlon argues that some of these ‘expressive acts’ should be prohibited but expression should not be prohibited simply because it is harmful. Expression, he argues, has a special status.

Scanlon distinguishes two types of argument for freedom of expression – appeal to a social good and appeal to individual rights. Put simply, a person can justify their freedom of expression by saying (a) society benefits from my expression, or (b) I have a right to express myself. These are not mutually exclusive positions, but despite his emphasis on individual freedom Mill’s defence of free expression is primarily derived from (a). Scanlon argues (basically) for type (b), but maintains there are social benefits to freedom of expression. Scanlon’s argument has to be located in a broader theory of political obligation (Chapter 19 Civil disobedience).

He maintains that state power has to be justified, and that means citizens must retain a degree of moral autonomy – that is, the capacity to make independent moral judgements, and thus be able to criticise those laws which they have a moral obligation to obey. Citizens can accept that their actions may be coerced – they can be prevented from doing something – but they will not be prepared to give up their

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right to criticise the state’s interference in their action. For example, most, if not all, states prohibit the private sale and (most) use of heroin (this is our example, not Scanlon’s). A citizen, for Scanlon, is under a moral obligation to obey the state and thus accept the state can legitimately interfere in their freedom to sell (or possess, or use) heroin, but they should be free to criticise the law.

This may seem very obvious, for few people would argue that a person should be prevented from (a) campaigning for the legalisation of heroin. And there seems to be a clear distinction here between expression and action. But consider these expressive acts: (b) valorising the use of heroin in novels or films; (c) setting up a website giving information on how to produce heroin; (d) giving information about sources of supply of heroin. Scanlon would certainly defend (a) and (b), and under most circumstances (c), but not (d).

It is the case that even campaigns for legalisation might serve to ‘legitimise’ heroin use and thus cause – albeit very indirectly – harm. Likewise, artistic representations can contribute to a social environment in which something appears good. Scanlon, however, takes a permissive attitude, arguing for personal responsibility: ‘a person who acts on reasons he has acquired from another’s act of expression acts on what he has come to believe and has judged to be a sufficient basis for action’ (Scanlon, 1972: 212). In other words, if Mary tells John how to produce heroin and John uses this information to produce heroin John must have gone through a process of reasoning which makes John responsible for any harm produced; Mary may well have caused him to act but she is not responsible for his actions. A society that values autonomy will tolerate the harm caused by expressive acts. Obviously, this assumes that the person being addressed is a responsible agent, and we might want to restrict expression when the addressee is immature or in some way particularly susceptible to influence. However, if we treat everybody as immature or susceptible then the possibility of a vibrant society is lost.

Offensiveness

Although Mill does not directly address the problem of offensiveness, implicit in his argument is the view that to say ‘I find x offensive’ is equivalent to saying ‘I don’t agree with x’, and he rejects disagreement as a ground for limiting a person’s freedom. The alternative is to say that the action is not offensive but harmful – perhaps psychologically harmful. This would, however, severely restrict the sphere in which a person is free to act (a point made earlier). Mill does, nonetheless, appeal to the notion of ‘public decency’ to forbid certain non-harmful (that is, non-harmful to others) acts:

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 rightfully be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell.

(Mill, 1991: 109) It would, in fact, have been helpful if Mill had dwelt a while on these activities.

Sex in public is not (normally) injurious to the participants, but most people, even

Chapter 2 Freedom 47

if they themselves are not offended, would probably accept that it should be prohibited. Mill’s argument does not follow from his harm principle. Joel Feinberg argues that there should be an ‘offence principle’; this would be in addition to the harm principle, for offence cannot be assimilated to harm (Feinberg, 1985: 1).

Feinberg distinguishes immediate and mediated offence. Immediate offence is offence to the senses. Imagine the neighbours from hell: they party and play loud music all night; they have a rusting car in their front garden and pile up household refuse – which stinks – in the back garden. These things hit the senses – sight, sound, smell. Mediated offence is when a norm or value is violated: about ten years ago a popular fast food outlet advertised a sausage, egg and cheese bagel. Given that bagels are widely recognised as a Jewish speciality and pork is prohibited under religious law the advertisement was taken to be offensive. The offence is here mediated by a set of beliefs and values. Immediate offence is less problematic because in most cases we can agree on what should be prohibited – such prohibition is value-neutral.

In a society marked by a pluralism of beliefs and values a prohibition on expressive acts based on mediated offence is more problematic.

Take the case of Steve Gough (the ‘Naked Rambler’). In 2003–4 Gough took seven months to walk naked – except for boots and a hat – the length of Britain (Land’s End to John O’Groats). He was arrested 17 times and spent two brief terms in prison. Unless you object to Gough’s walk on grounds that you find him physically repulsive his is an example of mediated rather than immediate offence, and his actions are quite explicitly grounded in his beliefs and values: he has a website on which he says he is engaged in a ‘celebration of the human body and a campaign to enlighten the public, as well as the authorities that govern us, that the freedom to go naked in public is a basic human right’.

Feinberg sets out his offence principle:

1. The offence felt must be a reaction that a person chosen at random would have (excepting, offence to specific subgroups – in this case we choose a person at random from that group).

2. The offensive behaviour cannot reasonably be avoided.

3. The offence must not be the result of abnormal susceptibility.

4. The person who is restrained must be granted an allowable alternative outlet or mode of expression (Ellis, 1984: 20).

Feinberg seeks to distinguish the offence principle from the harm principle, but avoid making judgements regarding the intrinsic goodness or badness of particular actions – in other words, he wants to avoid legal moralism (discussed in the next section). Anthony Ellis (1984) argues that Feinberg fails. Ellis lists various dictionary definitions of ‘offence’: 1. Annoyance; 2. Quasi-physical disgust; 3. Transgression;

4. Moral outrage (Ellis, 1984: 7). The first would be too weak for the offence prin-ciple: we cannot prohibit everything we find annoying. The second is unproblematic:

immediate offence hits the senses – smell, sight and sound – and is normally viewpoint-neutral. The third is just a synonym for violation of rules and does not tell us anything about the rules. The fourth is the problematic one, because it could lead to legal moralism. Take the case of someone forced to watch a pornographic film. The person says he found the film ‘disgusting’. This could mean that it made him feel sick (an example of 2: quasi-physical disgust), or that it offended him in a moral sense (an example of 4). If it is 4 then the knowledge that such films exist and

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other people are watching them could be grounds for prohibition. And indeed this is what legal moralists maintain: all should be prevented from watching such a film.¹ In an attempt to distinguish prohibition on grounds of offensiveness from prohibition on grounds of moral disapproval Feinberg introduces the concept of a charientic judgement (the ‘Charites’ are the Greek goddesses of grace: they are often represented as the Three Graces). If we wish to judge an act or expression uncharientic we might say it is vulgar or uncouth or boorish or tasteless. If we were to judge something immoral we would say it is wrong or bad or evil or selfish.

Moral disapproval may entail resentment, whereas charientic disapproval entails contempt. Crucially, there is no charientic equivalent to guilt, although we can feel shame if we realise we have inadvertently committed a charientic faux pas.