HARM AND IGNORE
10.1. The protection the state offers to citizens, or, more precisely put, those deemed basically equal, against each other (and foreign elements) is vital; it has to be there for the freedoms to be exercised at all, in a sense1. Without such protection, such freedoms may still be said to exist2 (and even unboundedly3), but more important rights would not be protected. If one can be killed at random, one has other things to be concerned about than the right to free expression. That does not necessarily mean that a totalitarian state should be established, though, and reaching such a conclusion at this point of the inquiry would testify to a false dilemma. It is one option among many (but not the most desirable, as will be argued below). For now, the outcome is open-ended. It was argued in chapter 8 that freedom is important, but that merely means that freedom must be taken seriously, not that it cannot be limited if it is weighed against something more important.
10.2. What has become known as the ‘harm principle’ is a useful starting point. Mill’s formulation of it is the following: “[…] the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”4. It is difficult what ‘harm’ is supposed to mean. There are passages in Mill’s work where a broader notion than physical harm seems intended5, but clarity on the subject matter is wanting. Be that as it may, this is not an exercise in exegesis, and the issue at hand is whether this principle is tenable.
One could limit the domain of disallowed harm to physical harm, but this would constitute an arbitrary demarcation line between permissible and prohibited actions: while it is certainly defensible that an action which would (or even might) result in the physical harm of another person than the agent6 should be disallowed, it is not clear why it would at the same time be the only sort of action to be considered thus. The only reason I can think of to uphold such a demarcation line would be that physical harm is relatively easily observable7, which is a criterion that can be of no concern (except if the issue were whether someone is sincere in his claim that he is harmed). Libelous acts, for example, are not physical in nature but could easily be argued to be harmful8.
In any event, the importance to avoid other sorts of harm than physical harm cannot be dismissed by simply qualifying them as such (i.e., as non-physical harm). Even if their avoidance is less pressing than that of physical harm, this still does not exclude the possibility that they, too, are to be prohibited. I am not saying that this is necessarily my position; at this stage, I merely seek to elucidate the issue, so that it becomes apparent what is at stake.
I must first support why physical harm itself is a sufficient reason to limit freedom. This is perhaps considered a trivial matter by some (or many)9, but in order to present a complete account – and take into account what I observed above regarding the importance of freedom – it is necessary to justify even this intrusion on one’s freedom; that my justification of such an intrusion will be brief is not spurred by the former consideration – since argumenta ad populum are to be avoided at each stage – but rather by the fact that the argumentation is relatively straightforward. In the case of having to balance freedom against one of the reasons for a state to exist at all, viz., to protect one’s life (and possessions) and avoid being hurt at random, the hierarchy involved here dictates what the answer should be10.
10.3. On the basis of the foregoing I would argue that the forbearance of physical harm is the minimum that must be observed and because of which freedom may be limited, but that does not mean that the limit cannot be drawn at a less intrusive stage, using a broader definition of ‘harm’11. For example, someone may argue that he is harmed by the fact that cartoons are made that insult a person or deity12 he considers to be of great value, or even sacred. His conception of ‘harm’ would obviously have a wider scope than physical harm, in a case such as this one consisting in being annoyed, or perhaps in being (non-physically) hurt because something or someone is not treated with the reverence he considers it, him or her to merit. From such a perspective, harm need not be physical in nature to warrant limiting freedom.
Feinberg distinguishes between harmful, hurtful and offensive experiences13, arguing that “Not everything valuable is such that its absence is harmful; nor is everything that is undesirable such that its presence is harmful. An undesirable thing is harmful only when its presence is sufficient to impede an interest”14. Indeed, an interest being thwarted, set back or defeated is the defining characteristic of being harmed, according to Feinberg15; he elaborates on this by saying that: “One’s interests […] consist of all those things in which one has a stake […]”16. I see no reason to disagree with such a way of qualifying the issue. This does mean, however, that it must be clear what an ‘interest’ is, or what having a stake in something is. For a believer, for example, not having one’s religion (or a deity) insulted may be considered such an interest.
Feinberg may distinguish, as he does, between offense and harm, stating that “[…] the offended mental state in itself is not a condition of harm”17, limiting what was just said about interests to the latter, but the question arises to what such a distinction amounts. After all, the crucial issue is not whether an act is harmful (in Feinberg’s sense) or offensive but whether the reasons to prohibit it outweigh those to allow it, and this applies to both offensive and harmful (again, in Feinberg’s sense) acts. The believer just mentioned may agree with the statement that “It is unlikely […] that being in an intensely offended state could ipso facto amount to being in a harmed state”18, but for him, the issue will be an academic one, his interest19 not consisting in the way in which his negative experience is semantically qualified20 but in the means to eliminate it.
Feinberg seems to have taken such an objection into account, saying that “It is the person of normal vulnerability whose interests are to be protected by coercive power […]. He can demand protection only against conduct that would harm the normal person in his position. The further protection he needs he must provide himself by non-coercive methods”21. It must be admitted that the demarcation point between what should be allowed and what not is difficult to find and perhaps impossible to locate from a single perspective22. Yet ‘normal’ is, in my view, an insufficient term: it makes the outcome a virtually arbitrary one23.
In any event, a distinction such as the one made by Feinberg may have its value, but not for the purposes of the present discussion. One might still introduce specific terms to cover non-physical harm, such as ‘secondary harm’ for someone who would indeed be shocked because something very important to him is concerned, and ‘tertiary harm’ for someone who is merely annoyed, but a distinction between physical harm and other sorts of harm may not even be necessary: as long as harm is acknowledged to be the decisive element, a further division would only be relevant at a next stage, namely, to indicate the degree to which harm is inflicted. Since the first stage has not been completed, it would be premature to discuss this matter here; the following analysis will, moreover, show that such a division is irrelevant. I will, then, continue to use the single, uncomplicated notion of harm with which I started; whether something is harmful can only be decided by those experiencing it as such.
10.4. Presuming that those claiming to be harmed in a non-physical sense are sincere, the problem that ensues is that someone may claim to be harmed (in this broad sense) on the basis of virtually any expression that is critical of his viewpoint. For instance, a Christian may claim to be harmed (and not just purport to be, but actually experience harm24) on the basis of a scientific exposition in the field of biology, or a joke in which his convictions are mocked. If such expressions should be considered undesirable and prohibited for that reason, little scientific progress would remain possible, few debates, scientific or otherwise, would continue to take place, and freedom of expression would easily be seen to be hollowed out25.
One might distinguish between those expressions which (presumably) provide a contribution to a public debate, and those which (presumably) do not, and in which one has no other objective but to offend (or harm) groups of people or individuals. Such a stance is taken by the European Court of Human in Rights in the case of Otto-Preminger-Institut v. Austria: “[…] as is borne out by the wording itself of Article 10 para. 2 (art. 10-2) [of the ECHR], whoever exercises the rights and freedoms enshrined in the first paragraph of that Article (art. 10-1) undertakes ‘duties and responsibilities’. Amongst them – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs”26.
What is problematic here is that it is difficult, if not impossible, to delineate the category of ‘gratuitously offensive’ expressions, and to steer clear from the lurking concomitant political abuse of this obscurity27. I concur, then, with Leigh’s evaluation of this judgment:
“Gratuitously offensive speech is a vague category that is unpredictable in its application: it may extend not only to mere abuse but also to expression with a violent or hateful message”28. In the case of Otto-Preminger-Institut v. Austria, the Court referred to the case of Handyside v. United Kingdom29, acknowledging that its ruling constituted an exception to the general rule, expressed there, that “[…] freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of everyone. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ […]”30. To add that offensive expressions are allowed as long as they are not gratuitously offensive puts pressure on freedom of expression.
The line of reasoning presented above, according to which freedom of expression will cease to exist, may seem to constitute a slippery slope but it is, as long as a consistent line of reasoning is followed, simply the consequence of taking harm as seriously as I have. This consequence need not, admittedly, often occur in practice, for there are a number of ways to accommodate the various interests at stake, the usual – i.e., politically most digestible – one in a liberal democratic state being that an imaginary line is drawn between those statements that are acceptable and those that are not. I say ‘imaginary’ since it is of course impossible to enumerate all statements beforehand and classify them one way or the other, so that, when an actual case presents itself, the discretion of the court ruling over the matter will – at least to some degree – be decisive, but, more importantly, no criteria to decide what should be tolerated are provided by the legislator (unless one should want to resort to the situation I qualified above, namely, the one in which expressions may be warded off on the basis of someone’s claim that he is harmed).
So while such a pragmatic, political solution may suffice in many cases, that does not mean that it is also satisfactory (too pragmatic a stance must be avoided here). First, it suffers from inconsistency and randomness. For instance, making derogatory remarks about Jews is at present, against the background of the manifestations of antiSemitism that culminated in the Holocaust, generally less acceptable in Western Europe than it was in the 19th and beginning of the 20th century, when discussing the ‘Jewish question’ was in vogue31, while, conversely, the possibilities to critically discuss religions have steadily increased over time32, which, to anticipate the discussion in the next chapter, makes it clear that the context needs to be considered in approaching such issues. Second, not unrelated to the first matter, it leads to uncertainty with regard to the extent to which one is at liberty to express oneself.
10.5. The problem seems to result from starting with the criterion: harm. I will propose an alternative, more productive criterion here. In a liberal democratic state, one may be expected to be able to deal with expressions from viewpoints that diverge from one’s own. This may even be argued on the basis of a quid pro quo argument: in this sort of state, no view is so prevailing that its adherents can be assured that they can impose theirs upon others (provided they should want to), and, in line with was said in part 1 of this study, even if it were, there is no guarantee that this state of affairs will continue indefinitely. The price they pay for having the opportunity to live according to their beliefs and express their views is that they should allow others to do the same.
There are, however, clear limits to this price. No one should have to be confronted with manifestations he cannot reasonably ignore. So there should, e.g., be freedom to publish works in which views and persons are criticized and mocked, but no one should be forced to read them – one should have the opportunity to ignore such publications.
The danger that a majority will use the contents of a view as a criterion to decide for minorities whether they should be allowed to express them is mitigated by the fact that no majority can be guaranteed its persistence in a liberal democratic state (cf. section 6.7). Since anyone may belong to a minority in the future, an outlook that optimally accommodates any view is preferable to anyone analyzing the matter rationally.
It is not clear whether ‘harm’ in ‘harm principle’ refers to the noun or the verb, which could be left open, whereas no such lemma form exists in this case, ‘ignore’ and ‘ignorance’ being the alternatives. I opt for the phrase ‘ignore principle’ rather than ‘ignorance principle’ for two reasons. First, ‘ignorance’ implies that one is ignorant and thus has no knowledge of the manifestation, which is not the case (for otherwise the issue would not arise in the first place), and, second, ‘ignorance’ implies passivity while ‘ignore’ indicates that the person in question needs to do something, namely, ignore that which might harm him.
10.6. An apparent problem in this theory is that one should be able to ‘reasonably’ ignore manifestations, while I have not specified what this means.