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 offenceis
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 offenceis 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 mediatedby
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:- 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). - The offensive behaviour cannot reasonably be avoided.
- The offence must not be the result of abnormal susceptibility.
- 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; - 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
48 Part 1 Classical ideas