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 criticisethe 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
hehas 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 causedhim to act but she is not responsiblefor 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
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