Part 1A Paper 4:
Set texts/ Mill
Lecture 4: Objection to free
speech – Offence
Chris Thompson
cjt68@cam.ac.uk
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Overview
On Liberty
•  Lecture 1: The Harm Principle
•  Lecture 2: Free Speech
•  Lecture 3: Objections to HP - Paternalism
•  Lecture 4:Objections to FS – Offence
The Subjection of Women
•  Lecture 5: Sex and Gender; Nature/ Nurture
•  Lecture 6: Marriage and Equality
•  Lecture 7: Individuality and progress
Summary and common themes
•  Lecture 8: Utilitarianism
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Readings
•  MILL, J.S., On Liberty, ch. 2.
•  DEVLIN, P., The Enforcement of Morals (Oxford:
Oxford University Press, 1965).
•  DWORKIN, R., 'Liberty and Moralism', in his
Taking Rights Seriously (London: Duckworth,
1977), pp. 240-58.
•  HART, H., Law, Liberty, and Morality (Oxford:
Oxford University Press, 1963), ch. 1.
•  Stanford Encyclopaedia of Philosophy entries.
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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Soft Paternalism
Definition
In cases where we have good reason to
believe that someone is ill-informed and/or
insufficiently rational then it is permissible
to interfere against their will for the benefit of
that person.
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Soft Paternalism
Ill-informed
• Don’t know that smoking causes cancer.
• Unaware of the risks of not wearing a
seatbelt.
Insufficiently rational
• Myopic.
• Gambler’s fallacy.
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Hard Paternalism
Definition
It is always permissible to interfere with
someone against their will for the benefit of
that person.
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Hard Paternalism
Example
• Liberty is intrinsically valuable.
• Life is intrinsically valuable.
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Quote
The Harm Principle:
That principle is, that the sole end for which mankind are
warranted, individually or collectively, in interfering with the
liberty of action of any of their number, is self protection.
That the only purpose for which power can be rightfully
exercised over any member of a civilised community,
against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient
warrant [for interference].”
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Examples
•  The bridge case suggests Mill is a soft
paternalist.
–  But soft paternalism seems consistent with
Mill’s wider views on liberty. Harm principle
only applies to adults.
•  Slavery case seems more problematic.
–  Could say it’s not really a case of paternalism,
just not enforcing contracts.
–  Mill’s own defence relies on the value of
liberty and autonomy.
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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1. A reminder of the importance
of free speech
“If the arguments of the present chapter are
of any validity, there ought to exist the fullest
liberty of professing and discussing, as a
matter of ethical conviction, any doctrine,
however immoral it may be considered.”
(Ch.2)
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1. A reminder of the importance
of free speech
1.  The argument from perverse incentives
2.  The argument from truth
3.  The argument from partial truth
4.  The argument from justification
5.  The argument from justification
(understanding)
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1. A reminder of the importance
of free speech
“An opinion that corn-dealers are starvers of
the poor, or that private property is robbery,
ought to be unmolested when simply
circulated through the press, but may justly
incur punishment when delivered orally to an
excited mob assembled before the house of
a corn-dealer…” (Ch.3)
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1. A reminder of the importance
of free speech
“Again, 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…”(Ch.5)
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1. A reminder of the importance
of free speech
•  Can offence, in some cases, justify interference
or censorship?
•  Is a state justified in promoting (or discouraging)
a certain view of morality?
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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3. Examples of offence
1)  Blasphemy
•  e.g. Life of Brian
•  Banned in Ireland for eight years, banned
in Norway for one year
•  Swedish marketing: “So funny it was
banned in Norway”
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3. Examples of offence
2) Homosexuality
• E.g. Section 28 of the Local Government Act 1998
caused the addition of Section 2A to the LGA
1986.
• A local authority shall not intentionally promote
homosexuality or publish material with the intention
of promoting homosexuality or promote the
teaching in any maintained school of the
acceptability of homosexuality as a pretended
family relationship.
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• Only repealed in 2003.
3. Examples of offence
3) (Extreme) Pornography
• Distorted views of women
• Distorted views of sex
• Enticement to sexual violence
–  E.g. murder of Jane Longhurst by Graham
Coutts
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3. Examples of offence
Section 63 of the Criminal Justice and Immigration Act 2008 (CJIA)
Possession of extreme pornographic images
(1)It is an offence for a person to be in possession of an extreme
pornographic image.
(6)An extreme image is an image which—
(a)falls within subsection (7), and
(b)is grossly offensive, disgusting or otherwise of an obscene
character.
(7)An image falls within this subsection if it portrays, in an explicit and
realistic way, any of the following—
(a)an act which threatens a person's life,
(b)an act which results, or is likely to result, in serious injury to a
person's anus, breasts or genitals,
…and a reasonable person looking at the image would think that any
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such person or animal was real.
3. Examples of offence
4) The case of Simon Walsh
• Barrister, magistrate, aide to Boris Johnson
• Charged with five accounts of possessing
extreme pornography under s63A of the
CJIA
• Pictures ‘degrading and objectifying’, ‘risky
behaviour’
• Walsh acquitted, but excluded from his
chambers, lost job with Mayor.
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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4. Justifications for censorship
1)  Harm to individuals
•  The ‘corn-dealers’ example shows that
some speech acts can physically harm
others.
•  Surely some speech acts, like libel or
defamation, harm the interests of other
agents.
•  But what about emotional harm?
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4. Justifications for censorship
1) Harm to individuals
“Whoever
fails in the consideration
generally due to the interests and
feelings of others, not being compelled
by some more imperative duty, or
justified by allowable self-preference, is
a subject of moral disapprobation for
that failure…” Ch.4
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4. Justifications for censorship
1)  Harm to individuals
E.g. pornography
•  Indirect physical harm
•  Direct emotional harm from offence
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4. Justifications for censorship
1)  Harm to individuals
E.g. homosexuality
•  Surely a perfect example of a purely selfregarding action.
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4. Justifications for censorship
1)  Harm to individuals
E.g. blasphemy
“There are many who consider as an injury to
themselves any conduct which they have a
distaste for, and resent it as an outrage to their
feelings; as a religious bigot, when charged
with disregarding the religious feelings of
others, has been known to retort that they
disregard his feelings, by persisting in their
abominable worship or creed.” ch.4
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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4. Justifications for censorship
2) Harm to society
• Some institutions and traditions are crucial
for the functioning of society.
• Some speech acts may damage these
institutions, and so intervention by the state
or individuals may be justified.
• Need to identify those institutions which
should be preserved and those which should
change.
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4. Justifications for censorship
2) Harm to society
E.g. pornography
• May change the way in which women (or
sex) are (is) viewed in society, irrespective
of whether there is indirect physical or direct
emotional harm.
• Face a challenge of determining whether
the change is damaging.
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4. Justifications for censorship
2) Harm to society
E.g. homosexuality
• Section 2A of the LGA justified on the basis
that homosexuality harms the social
institution of marriage.
• Need to distinguish between harm to
society and change to society.
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4. Justifications for censorship
2) Harm to society
E.g. blasphemy
•  Is religion a corner-stone of society that
must be protected?
•  Or is religion’s influence in society
something that should be challenged?
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Overview
1.  Clarifications - Paternalism
2.  A reminder of the importance of free
speech
3.  Examples of offence
4.  Justifications for censorship
1.  Offence as harm to individuals
2.  Offence as harm to society
3.  Offence as harm to morals
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4. Justifications for censorship
3) Morality
•  Does the state have a right to impose its
view of morality on individuals?
•  Is there any thing wrong with ‘immoral’
acts that is not captured by the Harm
Principle, by harm to others or by harm to
society?
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4. Justifications for censorship
3) Morality
• Concern with homosexuality or blasphemy
may be limited to a concern with enforcing
morality.
• For Mill the ‘truth’ argument seems to win
out (see Ch.2).
• E.g. Communitarianism – people live in
particular societies with particular norms.
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4. Justifications for censorship
Extreme
pornography
Homosexuality
Blasphemy
Harm to
individuals
Possible
No
Possible
Harm to society
Possible
No
No
Harm to morality
Possible
Possible
Possible
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4. Justifications for censorship
“As soon as any part of a person's conduct
affects prejudicially the interests of others
[there is harm], society has jurisdiction
over it, and the question whether the
general welfare will or will not be promoted
by interfering with it, becomes open to
discussion.” Ch.4
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4. Justifications for censorship
•  Offence and other harms may justify
censorship of (some) pornography.
•  Difficult to see the rationale for censoring
blasphemous speech acts on the basis of
offense.
•  The distinction may turn on the cognitive
content of religious speech.
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Next week…
•  Lecture 5: The Subjection of Women.
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