In modern civilized societies, human conduct is limited by the laws and regulations set forth by governing bodies. A critical debate within philosophy and the social sciences concerns the kinds of conduct that can rightfully and legitimately be prohibited by criminal law. As norms and values vary across time and place, there is not always consensus concerning the forms of behavior that should be subject to legal sanction. On what grounds can the state legitimately interfere with the liberty interests of its citizens by utilizing law to restrict their behavior? Though it may not be especially troubling to claim that, as a general principle, the state is justified in creating laws and corresponding punishments to limit behaviors that directly cause harm to others (and, perhaps self), it becomes much more problematic when the local, state, or federal authorities utilize law to attempt to curb conduct that is merely immoral or offensive.
A key work in this area is Joel Feinberg’s The Moral Limits of Criminal Law, in which he systematically addresses four basic principles that are or at least could be utilized to determine whether a given form of conduct should be prohibited on moral and/or legal grounds: (1) the harm principle, adopted from John Stuart Mill, which can justify the prohibition of behaviors harmful to others; (2) paternalism, which can justify the prohibition of behaviors harmful to self; (3) moralism, which can justify the prohibition of behavior regarded as immoral—even if not harmful; and (4) offensive conduct, which can justify the prohibition of behavior that is offensive or obscene— even if, again, not directly harmful.
In the United States and elsewhere numerous laws and regulations define as offenses behaviors that are characterized as offensive or obscene without necessarily causing identifiable harm to self or others. Consider, for example, those outlawing indecent exposure or public nudity, pornography or other obscene materials, or speech that is hateful. Where these forms of conduct are illegal, they are most often so not because they are harmful in any direct sense; rather, they are behavioral expressions that are limited by law because they arguably are offensive to others— causing disagreeable mental states such as disgust, shock, or shame. Problematically, “offensive” and “obscene” are fluid constructs, varying from time to time, place to place, and person to person. Even if a society is prepared to accept that some forms of offensive behavior should and can legitimately be legislated (a proposition that not all within society do accept), the question of how to understand “offensive” conduct remains.
Certainly not all offensive conduct is sufficiently serious to justify governments preventing it. There is a difference, Feinberg argues, between nuisances and more profound or serious forms of offense. Feinberg suggests several factors be taken into consideration, including the extent and duration of the behavior, whether and how much social value it has, the intent and motive of the person engaging in the behavior, the number of persons offended and the intensity of that offense, the extent to which witnessing the behavior can be avoided, and whether the behavior serves or harms the more general interests of the community. The most critical factor is perhaps the ease with which that causing offense can be avoided. It becomes difficult, for instance, to argue that erotic books and films be illegal merely because they are offensive. Persons who do not wish to be offended by such materials can simply avoid reading the books and viewing the films. Simply knowing that such materials exist or that offensive acts are taking place is not necessarily sufficient to warrant their prohibition. If an individual is potentially offended by forms of religious or political expression that occur within closed settings (e.g., places of worship or political rallies), one can simply avoid entering those places and being exposed to the forms of expression occurring within. In contrast, it is much more difficult to avoid an unanticipated encounter with persons engaging in sexual fornication in the parking lot of a shopping mall. Where offensive behavior is not easily escapable, there is arguably a more legitimate basis for prohibiting it.
In general, Feinberg recommends something of a “balancing test,” whereby one weighs the interests of the person engaging in the conduct against the relative seriousness of that conduct. Numerous legal battles, for instance, have transpired throughout the history of the United States that featured competing interests of free expression and banning or criminalizing offensive uses of the American flag. For many, burning the American flag or using its likeness distastefully in fine art or clothing, can produce offense significant enough to warrant government control. Likewise, the act of burning a cross is an expression overwhelmingly characterized as offensive, yet in the absence of any direct harm (or threat of harm) the U.S. Supreme Court has been generally hesitant to proscribe forms of speech solely because of the ideas that are expressed by that speech. While such a balancing test is not straightforward, it does suggest that some offensive conduct might legitimately be regulated by the state, while other such conduct might better be regarded as mere nuisances that members of societies that value freedom, liberty, and individual expression must unavoidably endure.
- Feinberg, Joel. “Offense to Others.” In The Moral Limits of Criminal Law. Vol. 2. New York: Oxford University Press, 1984.
- Mill, John Stuart. On Liberty. Indianapolis, IN: Hackett, 1978.
- Simester, A. P. and A. von Hirsch. “Rethinking the Offense Principle.” Legal Theory, v.8/3 (2002).
- van Mill, David. “Freedom of Speech.” In The Stanford Encyclopedia of Philosophy (Winter 2012). Edward N. Zalta, ed. http://plato.stanford.edu/archives/win2012/entries/freedom-speech (Accessed May 2013).
- Welch, Michael. Flag Burning and the Criminlization of Protest. New York: Aldine de Gruyter, 2001.
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