Chapter 5: Methodology and Methods
5.4 Study 1: Understanding the patient perspective (Interviews)
5.4.4 Interview process
Most of Offense to Others is devoted to obscenity, considering that concept in three distinct senses: as a type of offense felt towards an object, as a technical legal term for a type of pornography, and finally, as a class of impolite words. Feinberg acknowledges that offence in the first understanding of obscenity is the most problematic, since what is offensive to one may not be regarded as offensive at all by another. If we want to make the Offence Principle an intelligible principle, the offence has to be explicit, and it has to be more than emotional distress, inconvenience, embarrassment, or annoyance. We cannot outlaw everything that causes some sort of offence to others. If the Offence
83
Principle is broadened to include annoyance, it becomes too weak to serve as a guideline in political theory, for almost every action can be said to cause some nuisance to others.
Cultural norms and prejudices, for instance, might irritate some people. Liberal views may cause some discomfort to conservatives; and conservative opinions might distress liberals. Some, for instance, might be offended when hearing a woman shouting commands, or just by the sight of black and white people holding hands. This is not to say that these sorts of behaviour should be curbed because of some people who are ‗over sensitive‘ to gender or interracial relations. Similarly, if someone is easily offended by pornographic material, one can easily avoid the pain by not buying magazines marked by the warning: ‗The content may be offensive to some.‘ Under Feinberg‘s ‗reasonable avoidability‘ and ‗Volenti‘ standards the offence cannot be considered serious. Injuries, to be restricted under the Offence Principle, must involve serious offence to be infringed.
By ‗serious offence‘ it is meant that consideration has to be given to the ‗reasonable avoidability‘, and the ‗Volenti‘ as well as the ‗extent of offensive‘ standards. The repugnance produced has to be severe so as to cause an irremediable offence, which might affect the ability of the listeners to function in their lives.102
Coming to the second understanding, Feinberg sharply distinguishes pornography from obscenity. According to him, pornography always has the character of allure, that is, it is
―designed entirely and plausibly to induce sexual excitement in the reader and observer.‖
But we should call a particular work of pornography obscene only when we wish ―to endorse some offense as the appropriate reaction to it.‖ This offense according to Feinberg can be shock at the blatant violation of a moral standard, or revulsion at the coarseness and obtrusiveness. Feinberg‘s balancing test doesn‘t justify censoring pornography as such, for that would constitute a form of legal moralism. But to the extent that the pornography is also obscene and thus offensive, it can be controlled to the extent of protecting unwilling audiences and children.
84
Based on this, Feinberg finds the American Supreme Court‘s handling of the legal sense of obscenity highly artificial. Since its debut inthisfield in 1957, when it declared such material outside of firstamendment protection, the American Supreme Court has called―obscenity‖what is actually pornography. But worse than this semantic confusion for Feinberg is that the Court actually based its ruling on what Feinberg characterize as a species of legal moralism and moralistic legal paternalism, where the alleged immorality of an action consists in itsmoral harm to the actor himself, as in―harm to one‘s character‖
or ―becoming a worse person.‖calls embrace the censorship rationale appropriate for pornography, the moral wrongness of the appeal to a prurient interest.102Although the Court later added offensiveness to the criteria of legal obscenity, the basic rationale remained legal moralism. Thus, official censorshipcould extend to theatres that unobtrusively advertise their films and admit only consenting adults. Moral soundness, by Feinberg‘s analysis, lies with limiting the reach of state law to the protection of children and unwilling adults, that is, the ―offense‖ rationale.
Obscenity in the sense of impolite words is the final subject of his work. Characterized by their conspicuous violation of taboos (which may be religious, sexual, or scatological) these words, broadly speaking, do ―offend.‖ But only in restricted circumstances would the offense warrant the criminal sanction. To this end, Feinberg notes that obscene words serve numerous purposes - providing a no-nonsense dysphemism to balance euphemism, flavouring description with ―spice and vinegar,‖ expressing strong feeling, giving insult and provocation, and effecting a good joke. He also recognizes that under certain circumstances their offense may be more than one should have to bear. For the most part, social mores, he argues, can take care of confining obscenities to their proper context, and he chooses to focus on only two areas of controversy-fighting words and indecencies on the airways.
Although he affirms the doctrine of ―fighting words,‖ he restricts it sharply to what Austin called a ―performative utterance,‖ words that do something rather than simply
85
express something.Comparable in that way to declarations of war, ―fighting words‖
should be restricted to words that in certain circumstances, by prevailing symbolism, initiate a state of hostility. By virtue of their invective effectiveness, obscene insults may sometimes also constitute fighting words, but they can be proscribed only because they are fighting words, not because they are obscene.
Feinberg finds even less justification for banning or even limiting obscenity on the airways. In this regard, he criticizes Justice Stevens‘s reasoning in FCC v. Pacifica Foundation, which affirmed federal authority to channel ―indecent‖ language over the radio from the hours in which ―there is a reasonable risk that children may be in the audience.‖ For Feinberg, the offense of getting hit with an undesired obscenity, for children as well as adults, is a mere ―mosquitos bite,‖ too trivial for the concern of the law, and one that the listener can guard against by simply turning the station off. As for the exposure of children to obscene words, Feinberg grants that were the words used pornographically, there might be grounds for state regulation, but he doubts that momentary exposure to obscenity can ever have a sufficiently marked effect on a child‘s moral character as to justify their proscription.104
Feinberg‘s refusal to endorse the criminalization of indecency on the airways is primarily based on the principle of avoidability.Let us consider this in some details. Under this standard, the offence has to be committed in such circumstances that those offended by it cannot possibly escape for there to be grounds for restriction. For example, if an Hausa man takes a stooland a megaphone to the Ekwueme Square in Awkaadvocating the abolition of Anambra State, throwing all Biafran War veterans into prison, expressing his desire to murder all Igbos, and claiming that he is Gowon who killed 3 million Igbos during the civil war or an NnamdiKanu pouring vituperations on Hausa and Yoruba elders as the oppressors of Ndi Igbo; the offences for Feinberg cannot be considered anything more than annoying, or anything more than an inconvenience to the listeners, for they can simply leave the place switch-off their radio and free themselves of the
86
speakers presence, as well as of his speech. For Feinberg, we cannot say that the audience interest in ‗having a good environment‘ is more important than the speaker‘s interest in conveying his thoughts. Also, the argument that this communication does not carry substantive content cannot serve as sufficient reason for abridging it, for then we might supply grounds for curtailing many other speeches that just repeat familiar stands.
In addition, ‗the extent of offence standard‘, determined by the content and manner of the speech, and ‗the Volenti standard‘, do not provide reasons for restriction. The situation is different, however, when the avoidance of offensive conduct in itself constitutes severe pain. Then we may say that the matter is open to dispute. That is, if those who are offended by a certain speech feel an obligation to stay because they think that they will suffer more by leaving and avoiding it, then there are grounds for placing restrictions on speech, provided that the extent of the offence is considerable. In any event, it is the combination of the content and manner of the speech, the evil intention of the speaker, and unavoidable circumstances that warrants the introduction of sanctions.
In the final analysis, Feinberg like most liberals especiallyJ. S. Mill,believes that liberty or personal autonomy is the most important value in a liberal society that it is always better to err in favour of liberty than coercion. Thus, in spite of the fact that contrary to Mill, Feinberg calls for supplementing the Harm Principle with the Offense Principle, he still believes that this should be done sparingly such that the onus is always on the one who calls for criminalizing offensivenessto provide justification(s) for such calls.
However, the question is, why doesFeinberg think that legal moralism and paternalism should not be used as legitimate moral justifications for criminalization. The next chapter is an attempt to answer this question.
87
Endnotes
1. J. S. Mill, On Liberty, edited by Alburey Castell, (New York: Appleton-Century Crofts, Inc., 1947), p. 9.
2. Ibid. p. 4.
3. Ibid. p. 9.
4. Ibid. p. 44.
5. Ibid. p. 5.
6. Johnston, Lecture Notes on Mill’s On Liberty, Malaspina University- College, 2002 http://www.mala.bc.ca/~johnstoi/introser/mill2.htm, (Accessed, 28-03-19).
7. J. S. Mill, Op. Cit. p. 5.
8. Ibid. p. 9.
9. Ibid. p. 58.
10. Ibid. p. 53.
11. Ibid. pp. 78-79
12. James Fitzjames Stephen, Liberty,Equality,Fraternity, (Cambridge: Cambridge University Press, 1967), p. 162.
13. HLA Hart, Law, Liberty and Morality, (Stanford: Stanford University Press, 1963), pp. 60-61.
14. J. Feinberg, ―MoralEnforcementandtheHarmPrinciple‖, Sonia Philosophy(1973), p. 129.
15. Bernard Harcourt, ―The Collapse of the Harm Principle‖,Crime & Criminology, (1999), pp. 109, 121.
16. Report of the Committee on Homosexual Offences and Prostitution, (1957), p. 247 17. Patrick Devlin, The Enforcement Of Morals (Oxford: Oxford University Press,
1965).
18.
HLA Hart, Op. cit. p. 16.19. Wolfenden Report, p. 18, para 62.
20. Ibid. p. 247, para. 13.
88
21. Ibid. para. 62.
22.
P. Devlin, Op. cit. pp. 12-13.23. Ibid. p. 15.