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FROM HARM TO OFFENSE: REFLECTIONS ON THE CONSTRUCTION OF SPEECH NORMS... American prison system could not guarantee the prevention of Assange’s suicide.?° The fact that the harm (suicide) is Assange’s choice and that there is no evidence that extradited prisoners are being put into conditions forcing them to inevitably commit suicide, and that the ECtHR has not found in other cases that extradition to the American prison system was unsafe, was of no concern. There was no actual danger of suicide and even the distant possibility was subject to contradictory medical expert testimony. What matters here, for our purposes, is that human agency is no longer considered to be relevant. A specific new understanding of harm that will be crucial for limiting freedom of expression originates from the introduction of the concept of systemic or structural harm.”' In this logic, group status is injured by hypothetical consequences for the group member who feels injured because the group (or even organization) is harmed. (A traditional form of this type of harm goes back to feudal status and its legacy: the honour of the army depends on the individual reputation of officers, an approach still recognized under German law.”’) In a further step away from the harm principle, rights or liberties can be restricted, even coercively, to advance social goods, in particular happiness and social justice. Harm is not part of the equation. This understanding stems from a specific understanding of the function of the state. It can be argued that even Mill, the good utilitarian that he was, was in favour of taking measures (albeit not necessarily coercive measures) for the greatest happiness of the greatest number. While liberals later denied the admissibility of a state promotion of happiness, particularly by coercively restricting rights, since the state does not know what amounts to happiness for individuals, a pragmatic liberal compromise was nevertheless accepted in constitutional welfare states. While the state (especially where its action is endorsed by the democratic process) may promote collective goals, at a minimum, coercive state activity must respect fundamental individual rights. The practical debate centres on the question of to what extent (and what rights). I am not arguing that the uncertainties regarding harm beyond the core are necessarily originating in arbitrariness nor that they are not self-serving. Harm is always socially construed. Further, there can be reasonable disagreement on the evidence of harm (what is the evidence of harm, how much evidence must 20 https://www.judiciary.uk/wp-content/uploads/2021/01/USA-v-Assange-judgment-040121. pdf, accessed 14 May 2021. 2! SCOTUS does not recognize actual responsibility for this type of harm. Milliken v. Bradley (418 US 717, 1974). On structural injustice, see Iris Marion Young, Responsibility for Justice, New York, NY, OUP, 2011. 22 BVerfGE 93, 266 (Soldaten sind Mörder case). + 343 *
