OCR
FROM HARM TO OFFENSE: REFLECTIONS ON THE CONSTRUCTION OF SPEECH NORMS... harm - even if this is partly self-inflicted harm. However, even in this context, social conventions will determine what is excessive (society does not tolerate a general motorway speed limit of 30 miles per hour which would probably be held suboptimal, once society accepts a certain number ofroad accidents). The bottom line is that harm, even death is accepted. But this does not necessarily contradict the harm principle which does not say that harm must be prevented by the state (though it may be prevented, even by coercion) but only that (fundamental) liberty rights cannot be infringed by coercion. The hypocrisy lies elsewhere: modern European human rights law insists on a quasi-absolute obligation of the state to protect life (and, implicitly, security) and this is endorsed (without thinking of all the socially accepted or stipulated exceptions) by the social state (the mild despot). But this is not the topic of this short essay, though it has grave consequences for the scope of admissible interferences may. Turning to the subject of grounds for criminalization, the Millean harm principle was revised and challenged over the last 150 or so years. Feinberg, still within the liberal paradigm, argued that (inevitable) offense to others is also sufficient grounds for restrictive state intervention. The harm/offense dilemma in law can be illustrated by reference to some seminal demonstration and sensitivity cases. In Skokie”, a 1977 demonstration permit case, the municipality found a planned march of a small group of neo-Nazis unlawful for inciting violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation. The ban was found to be in violation of the freedom of speech of the Neo-Nazi group’s members. There were numerous Holocaust survivors living in the city of Skokie and a great many locals and other people were outraged; some locals claimed that they are afraid and the sight of Nazi symbols caused them emotional stress given their terrible lived experience under the Nazi regime. From the perspective of harm, the legal issue was whether the ethnic group was actually harmed (was there harm to be prevented in view of the alleged incitement)? Was offending the feelings of the specific target audience not harm in itself? This was not a concern for US legal analysis. The First Amendment interpretation did not allow for the consideration of the target’s emotional response. The underlying idea is that considering offense (the speech effect on the target) opens the floodgates of sensitivity, with the potential of subsequent abuse, rendering a personal (idiosyncratic or abusive) feeling sufficient to silence speech. This is how the prejudice of regulators prevails, just like in the case Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978); National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). * 339 «