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Fall 2006
Volume 06, Number 1

Newsletter on Philosophy and Law

Articles

Feinberg’s Offense Principle and the Danish Cartoons of Muhammad1

Terry L. Price
Jepson School of Leadership Studies
University of Richmond

In September 2005, Jyllands-Posten, Denmark’s largest daily newspaper, published a series of cartoons depicting the Prophet Muhammad. Visual representations of Muhammad are prohibited on standard understandings of the Koran and Islamic tradition.2 As a consequence, the drawings would be highly offensive to many Muslims, no matter what their actual details. But the offense caused by Danish cartoons did not end there. Muhammad was not simply pictured in the cartoons; he was variously shown having horns, wearing a headdress in the shape of a bomb, and proclaiming that suicide bombers had depleted the supply of virgins used to reward martyrs.

Salman Rushdie, whose novel The Satanic Verses was deemed so offensive to Islam that the Ayatollah Khomeini issued a fatwa against him in 1989, remarked, "What kind of god is it that is upset by a cartoon in Danish?"3 Regardless of whether Allah was upset by the cartoons, much of the Muslim world was outraged. The publication of the cartoons led to death threats, bomb scares, and deadly riots around the world. Several Middle Eastern countries called their ambassadors home from Denmark, and many Muslims participated in a severe boycott of Danish products. Jyllands-Posten ultimately apologized for publishing the cartoons.4

In the spirit of freedom of speech and freedom of the press, newspapers across Europe reprinted the cartoons, with the result that some of their editors were sacked. Other newspaper publications were less supportive of Jyllands-Posten and of the decisions to reprint the cartoons. An opinion piece in France’s Le Figaro suggested that "it is…possible to misuse the freedom of the press."5 Commenting on the reprints of the cartoons, the United Kingdom’s The Guardian claimed that "[t]here has to be a very good reason for giving gratuitous offence of this kind."6 Is it true, however, that in a free society offensive behavior must meet a standard of reasonableness? This question takes on special significance for the legal philosopher. Although The Guardian’s call for reasonableness was directed only at individuals in decision-making positions in the press, we can ask whether a similar requirement of reasonableness should also be applied by legislators and judges. Specifically, when there is no serious case to be made in terms of the reasonableness of offensive conduct, is the state justified in restricting the liberty of individuals who would engage in it?

In what follows, I suggest that liberals should stand firm behind the negative answer to the legal question. This answer differs from Joel Feinberg’s articulation of the liberal position on offense. Feinberg’s analysis of the moral limits of the criminal law, easily the most sophisticated argument in the literature, counts offense to others as a justification for limitations on liberty precisely when there is little to be said in favor of the reasonableness of the offending conduct. Against Feinberg’s position, I argue that even in the most extreme cases, cases such as the Danish cartoons, limitations on liberty cannot be justified by appeal to the offensiveness of behavior, unreasonable though that behavior may be.

Feinberg’s Offense Principle

In his four-volume work, The Moral Limits of the Criminal Law, Joel Feinberg defends what he takes to be the liberal view of justified limitations on liberty by the state, namely, that "the harm and offense principles, duly clarified and qualified, between them exhaust the class of morally relevant reasons for criminal prohibitions" (x).7 In short, the state is justified in interfering with individual action not only when so doing is necessary to prevent harm but also to prevent offense to others. The harm principle, which gets its defense in Feinberg’s Harm to Others (Volume 1), is hardly controversial, even among those without liberal sensibilities. Whatever else the state can rightly do, it must be able to legislate against harm to others. But Feinberg’s attempt to draw the line of justification at the inclusion of offense is significantly more controversial. Can non-offensive, non-harmful behaviors be legitimately prohibited by law? More important for the liberal, is it permissible to prohibit non-harmful behaviors that do nothing more than cause offense?

Feinberg’s exclusive commitment to the harm and offense principles can thus be challenged from either of two directions. First, some would argue that these two principles provide insufficient means for preventing other kinds of evils with which society has a right to be concerned, most obviously, purely self-regarding behavior and so-called "victimless crimes." Feinberg addresses this direction of the challenge in Harm to Self (Volume 3) and Harmless Wrongdoing (Volume 4), respectively, and I will not take up the arguments for the illiberal principles of legal paternalism and legal moralism in this essay. The second challenge suggests—and rightly so, I think—that liberals should be very wary of the offense principle. Before motivating and developing this challenge, however, I will lay out at length the complex conceptual apparatus that Feinberg uses to make sense of the offense principle, as this principle is presented in his Offense to Others (Volume 2).

Feinberg begins by pointing out that John Stuart Mill’s On Liberty is meant to be an argument for the claim that only harm is justifiably prohibited by the state (ix), a view Feinberg calls "extreme liberalism" (x). Yet even Mill admits that some acts, "if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. Of this kind are offenses against decency; on which it is unnecessary to dwell, the rather as they are only connected indirectly with our subject..."8 Fortunately for us, Feinberg sees the necessity of considering offenses of all kinds, and dwell on them he does. Always the model analytic philosopher, he begins by asking what we are talking about when we consider whether something is offensive.

For a philosophically acceptable answer, Feinberg claims that we must "engage our imaginations in the inquiry, consider hypothetically the most offensive experiences we can imagine, and then sort them into groups in an effort to isolate the kernel of the offense in each category" (10). To this end, he takes us on an imaginary "ride on the bus," during which we are confronted with slate-scratching, radio-playing, vomit-and-feces-eating, corpse-smashing, self-satisfying, pet-pleasuring, swastika-wearing, and racist-banner-carrying passengers (10-13). Feinberg once joked that he feared that he might become known for his offensive stories, thirty-one in all, noting that—at the time—he was receiving weekly requests to reprint the passage. The stories of "a ride on the bus" are organized into six conceptual categories, distinguished primarily by the nature of our physiological or psychological responses to the offense:

A. Affronts to the senses
B. Disgust and revulsion
C. Shock to moral, religious, or patriotic sensibilities
D. Shame, embarrassment (including vicarious embarrassment), and anxiety
E. Annoyance, boredom, frustration
F. Fear, resentment, humiliation, anger (from empty threats, insults, mockery, flaunting, or taunting) (10-13)

Category C would seem to be most relevant to an analysis of the permissibility of the Danish cartoons, as the drawings certainly constitute—for some people, at least—a "shock to moral, religious, or patriotic sensibilities." This category includes, for example, a roughly analogous kind of offense in Story 11:

A strapping youth enters the bus and takes a seat directly in your line of vision. He is wearing a T-shirt with a cartoon across his chest of Christ on the cross. Underneath the picture appear the words "Hang in there, baby!" (11)

The behavior of this young man mocks not only the central figure of the Christian religious tradition but also what is believed by some to be Jesus’ defining act, namely, his crucifixion and subsequent resurrection. But notice that distinctly religious offense falls into at least two of Feinberg’s other categories as well. Religious offense crosses categories because, as we have seen, behavior in "a ride on the bus" is sorted not by the subject matter of the offense but by the nature of our physical or psychological response to it. In category D, "shame, embarrassment, and anxiety," Feinberg’s Story 19 has us imagine a confrontation with a passenger wearing a T-shirt that depicts Jesus and Mary in a sex act (12). Religious offense also causes "fear, resentment, humiliation, anger," as evidenced by category F’s Story 28 and Story 29, in which our fellow bus passenger wears "a black arm band with a large white swastika on it" or "carries a banner with a large and abusive caricature of the Pope and an anti-Catholic slogan" (13). Utilizing Feinberg’s account, we might thus assume that the depiction of Muhammad in the Danish cartoons caused many Muslims to experience offense that could be described in terms of various combinations of shock to moral sensibilities; shame, embarrassment, and anxiety; and fear, resentment, humiliation, and anger.

Behavior of this kind, Feinberg thinks, constitutes a kind of "nuisance" (Ch. 7). Like nuisances more generally, "offending conduct produces unpleasant or uncomfortable experiences—affronts to sense or sensibility, disgust, shock, shame, embarrassment, annoyance, boredom, anger, fear, or humiliation—from which one cannot escape without unreasonable inconvenience" (5, emphasis added). According to Feinberg, this confrontation between the offended and the offender thus calls for "interest-balancing" (6). Drawing attention to the justificatory force of nuisance—experiences that cause not harm but, rather, "irritations to our senses or inconvenient detours from our normal course" (5)—puts Feinberg in good liberal company. Mill tells us, "the liberty of the individual must be thus far limited; he must not make himself a nuisance to other people."9 Similarly, the 1957 "Report on Homosexual Offenses and Prostitution" in Britain suggests that while homosexuals and prostitutes should be immune to criminal sanction for their private behavior, public acts—for example, solicitation—deserve no such protection. In a BBC interview, Sir John Wolfenden, chair of the committee, articulates the reasoning behind the recommendations on prostitution in the so-called "Wolfenden Report":

My hope, and our endeavor, I think, is this. At the present time, there are in London, and there are in other places, streets where—oh well—if I am walking with my fourteen- or fifteen-year-old daughter, I have to make a detour around those places. And I honestly don’t think I should have to. And what we’re really trying to do, again, is to preserve public order and decency and to make it possible for the ordinary man and woman, you and me, to go about the streets as he likes.10

H. L. A. Hart also claims that the liberal can support legal interventions "in order to protect religious sensibilities from outrage by a public act" and, as a consequence, can punish the offender "neither as irreligious nor as immoral but as a nuisance."11 Hart’s attempt at balancing sets the "seriousness of the offence to feelings" against the "sacrifice of freedom and suffering demanded and imposed by the law."12

Much akin to Hart, Feinberg suggests that "the offense principle will have to be mediated by balancing tests similar to those already employed in the law of nuisance" (10). More specifically, the seriousness of the offense must ultimately be weighed against the reasonableness of the offending conduct (Ch. 8). With characteristic precision, Feinberg gives content to these notions. The seriousness of the offense, according to Feinberg, is determined by judging its "magnitude," while appropriately discounting for offenses that are reasonably avoidable, voluntarily incurred (Volenti non fit injuria), or the result of "abnormal susceptibilities" (35). The magnitude of the offense increases with the intensity of the response to the offensive behavior, the length of time the offended state lasts, and the number of people affected by the offense (35). Acting as a counterweight to seriousness, the reasonableness of the offending conduct increases with the importance of the behavior to the person engaging in it, the value of the behavior to society, and classification of the behavior as an expression of an opinion "about matters of empirical fact, and about historical, scientific, theological, philosophical, political, and moral questions" (44). Offending conduct is less reasonable, however, if it is the result of malice and spite or could have been carried out in a different manner, at a different time, or in a different place, especially if it could have been carried out in "neighborhoods where it is common, and widely known to be common" (44).

Bare Knowledge and Profound Offense

Liberal pedigree notwithstanding, Feinberg’s openness to the idea of balancing risks an association with Lord Patrick Devlin’s conservative critique of the Wolfenden Report. Devlin charges that both Mill and the authors of the report are in search of "a fundamental doctrine" or "theoretical limit" concerning what the state can do and, accordingly, try to mark off a sphere of "private morality"—when, in fact, we can do nothing more than "try to strike the right balance [between liberty and authority]."13 Admittedly, Feinberg, unlike Devlin, sees the analogy of scales to be relevant only when there are "determinate victims with genuine grievances and a right to complain against determinate wrongdoers about the way in which they have been treated" (25). But the risk for the liberal, and Feinberg readily acknowledges this risk, is in introducing the scales in the first place. For instance, the scales analogy raises the possibility that offense from the "bare knowledge" that some behavior is occurring might be serious enough to outweigh the reasonableness of that conduct (33). This possibility is all the more worrisome in light of the fact that it is not clear how Feinberg can establish the wrongfulness of a piece of offensive conduct, which is necessary for an application of the offense principle (2), independently of the scales and, especially, without considering factors such as magnitude and application of the Volenti standard.

Ultimately, then, Feinberg must solve the "bare knowledge problem" (61ff) if his account is to maintain its liberal credentials. Liberals, as Hart points out, cannot count the fact that an individual is offended by the bare knowledge of another’s behavior as a reason for prohibiting that behavior. So doing would yield the very illiberal result that the state can prevent people from doing anything that others "do not want them to do."14 Feinberg claims that Hart "overstates his case" here: "[P]rovided balancing tests are assumed, it is a non sequitur to say that the only permitted liberty would be ‘the liberty to do those things to which no one seriously objects’; rather the sole liberty would be to do those things to which not everybody (or nearly everybody) seriously objects" (63). But this reply is hardly comforting for the liberal. It is for good reason, then, that Feinberg faces the problem head-on in his discussion of "profound offense" (Ch. 9).

Feinberg distinguishes profound offenses from "mere offenses," first, in terms of the way that they feel to offended parties (57, 58). The former, unlike the latter, are "deep…shattering, serious" (58). Second, one need not directly perceive the offending conduct for the conduct to constitute a profound offense; "one can be offended ‘at the very idea’" of profoundly offensive behavior occurring (58). Third, profound offenses have a particular kind of cognitive component. They attack our higher-order sensibilities, offending "us and not merely our senses or lower order sensibilities" (59). Fourth, it follows that the cognitive component of profoundly offensive behavior is normative in nature. The behavior "offends because it is believed to be wrong, not the other way around" (59). Fifth, in cases of profound offense, the offense is impersonal, not personal: "The offended party does not think of himself as the victim in unwitnessed flag defacings, corpse mutilations, religious icon desecrations, or abortions, and he does not therefore feel aggrieved (wronged) on his own behalf" (59).

According to Feinberg, when we balance the seriousness of the offense against the reasonableness of the offending conduct, profound offenses are unlikely to pass the test that mediates application of the offense principle. Yet he fears that special cases might arise in which profound offenses generate an illiberal result if we submit the relevant factors to the balance. What he needs, therefore, is a principled argument against criminalizing profound offenses. Feinberg develops just such an argument by setting a dilemma for the advocate of prohibiting profound offenses. Either the profoundly offended party makes the claim on personal or impersonal grounds. The offended party cannot complain that the offense is personal because, as we have seen, profound offenses are defined by their impersonal quality. In other words, this characteristic is part of what makes them profound offenses rather than mere offenses. Feinberg tells us, "As soon as he shifts his attention to his own discomfiture, the whole nature of his complaint will change, and his moral fervor will seep out like air through a punctured inner tube" (67). But neither can the profoundly offended party appeal to the moral wrongness of the behavior that offends him. For that would be to rely upon an altogether different liberty limiting principle, namely, legal moralism. So Feinberg solves the "bare knowledge" problem associated with profound offenses by showing that alleged wrongfulness of the conduct, not its offensiveness, is really the source of the complaint. In this way, the offense principle avoids the decidedly illiberal appeal to morality that his theory cannot tolerate.

Hard Cases

To this point in Feinberg’s analysis, it might seem that the liberal has little reason to be afraid of the offense principle. A clean theoretical argument relieves the worry that the fate of liberty is left to the uncertain outcome of subjecting particular cases to the scales. But here one of Feinberg’s most important intellectual virtues, his facility to provide needed clarification and qualification, risks taking the argument in an obviously illiberal direction. We learn that what might first strike one as profound offenses are sometimes better described "personal deep affronts" (69). As Feinberg puts it,

This argument [against profound offense]…is subject to two strong qualifications. …It may be possible in certain untypical situations to go between its horns and thus escape its dilemma. A profoundly offended state of mind may be both disinterested moral outrage and also involve a sense of personal grievance, as when the offending cause is an affront to the offended party himself or a group to which he belongs (159-160).

One straightforward instance of "this quite exceptional kind of case" is offensive behavior that targets people in particular racial groups or women: "Racist mockery and abusive pornography received ‘in private’ by willing audiences can…cause acutely personal offense to members of the insulted groups who have bare knowledge of it" (69). In the end, Feinberg has his doubts that this kind of behavior is personal enough to constitute a "bare-knowledge offense" worthy of prohibition by the law (163). Neither the offended individuals nor the group of which they are a part are "direct intended targets" (60), at least not in a way that allows them to say that they were wronged by the behavior.15

Feinberg is significantly more moved, however, by the offense taken in a different kind of exceptional case, as when Nazis parade in Skokie—a majority Jewish community in Illinois, once home to many Holocaust survivors—or when Klansmen march through Harlem. In these cases, "The offending behavior deliberately seeks out the audience that will be most intensely, most profoundly, most personally offended, and imposes its offense on them as its sole motivating purpose" (164). Feinberg readily acknowledges that we cannot accord a lot of weight to the seriousness of the offense in such cases because it is reasonably avoidable. Somewhat surprisingly, though, he suggests that there is "even less weight" on the other side of the scales "in view of the fact that the ‘social value’ of free expression for pure insults is much less than that of genuine political advocacy and debate (which were not involved), and that the offensive conduct was clearly motivated by malice and spite" (88). Here, Feinberg notes, "Only some speech acts are acts of advocacy, or assertions of belief; others are pure menacing insult, no less and no more" (86). With respect to the Skokie case, he compares the Indiana Supreme Court’s claim that the swastika constitutes protected political speech with according political status to "nose thumbing," "giving…the finger," "a raspberry jeer," and the statement, "Death to the Niggers!" (87).

Why is Feinberg so reluctant to attribute any cognitive content to the Nazis’ behavior? After all, to conclude that the march ought to be prohibited, he does not have to deny that behaviors such as dressing as stormtroopers and wearing swastikas express a political opinion. Feinberg needs only appeal to the distinction between the content of political expression and the manner in which that content is expressed (39).16 As he notes, offense can be caused by what is said as well as "by the manner in which the opinion itself is expressed, for example as a caption to an obscene poster of Jesus and Mary" (39). To make this point, Feinberg references the stories in "a ride on the bus" in which a fellow passenger wears a t-shirt bearing the words, "Hang in there, baby" under a picture of the crucifixion or a t-shirt with a depiction of Jesus and Mary engaged in sexual intercourse. This distinction between content and manner allows Feinberg to say that "[n]o degree of offensiveness in the expressed opinion itself is sufficient to override the case for free expression, although the offensiveness of the manner of expression, as opposed to its substance, may have sufficient weight in some contexts" (44). So Feinberg could very well concede that the Nazi behavior expresses a political opinion and, at the same time, claim that the manner in which it is expressed is sufficiently offensive to merit prohibition of the message’s expression in its particularly offensive form.

It is worth noting that the cognitive content of the Nazi behavior is at least as clear as the cognitive content that Feinberg acknowledges the offensive t-shirts to have. Of course, the message of the t-shirts cannot be taken literally. They do not express anything about the wearer’s view that what is depicted actually took place. The wearer does not deny, I take it, that Jesus was crucified, nor does he assert that Jesus and Mary took part in mother-son incest. Instead, the t-shirt expresses the wearer’s more abstract commitment that Christianity is unworthy of our respect. Similarly, the Nazi parade does not aim to convey the belief that the marchers are actual members of the German Nazi regime. In the Skokie case, the behavior expresses something such as the political view that Jews are unworthy of our respect as fellow citizens. Part of Feinberg’s mistake is to think that the Skokie Jews are the only recipients of this Nazi message. If we see the message as directed only at the Skokie Jews, then it does look to be little more than an insult. But at least to outside observers, the marchers’ behavior expresses a clear—and clearly reprehensible—political opinion.

Is there a similar explanation of what the Danish cartoons express? Surely they do not suggest that Muhammad is a devil or that he was a terrorist. Neither are they meant to convince us that suicide bombers will no longer get their just reward. Rather, the cartoons raise meaningful political questions about the connection between Islam and terrorism. This challenge to Islam uses the form of a cartoon to exploit central components of the religion. According to the editor responsible for the original publication of the cartoons, the message of the cartoons is less threatening still: "The one with the bomb in his turban doesn't say, ‘All Muslims are terrorists,’ but says, ‘Some people have taken Islam hostage to permit terrorist and extremist acts.’"17 In any case, what is expressed lends itself to substantive propositional analysis.

In fact, the profound nature of the offense requires that the offending conduct have cognitive content. First, the cognitive content of the cartoons is what gives the offense much of its depth. Second, the cartoons’ cognitive content explains why perceiving them is unnecessary for the offense caused by the behavior. The profound offense is connected to belief, not perception. In cases of this kind, that is, simply knowing about behavior that conflicts with one’s belief system is sufficient for offense. This connection to belief allows, third, for offense at the cartoons to be a matter of one’s higher-order sensibilities, not one’s lower-order sensibilities. Fourth, the beliefs or sensibilities that get challenged by the cartoons are normative in nature. The offensive behavior threatens the offended party’s view of the way things ought to be. Therefore, fifth, the reason the cartoons offend is not understood in terms of a contingent feature of Muslims—for example, their idiosyncratic personal reactions. What it disrespects is thought to be much bigger than this. So, the cartoons must have cognitive content if they are to be powerful enough to challenge basic beliefs about the world and the way it should be. We cannot both accept that we must attend to the power of dangerous symbols and, at the same time, deny that these symbols have the cognitive content that gives them their power in the first place.

Moral Belief as a Constituent Element of Personal Deep Affront

As we have seen, Feinberg holds that the profoundly offended party cannot think of himself in his complaint. But to make it easier to collapse the notion of personal deep affront into the category of profound offense, we need only say that the profoundly offended party does not think only of himself or even primarily of himself.18 The dual nature of this kind of grievance is clearly present in the Danish cartoon case. The main offense may be to Allah or Muhammad, yet it is equally true that the offensiveness of the behavior has the potential to cause Muslims to think of themselves, especially of the distress and uncertainty they feel simply by knowing about the publication of the cartoons. Feinberg has this to say about a variation on the Skokie case:

Their feelings would be so deeply lacerated that they would be powerfully motivated to lash out at their tormentors, and even though this violent response would be natural and predictable, it cannot be permitted by the law. Thus, frustration of natural impulse, confusion over what would be right, and the clash of profound loyalties commingle with other elements in the offended party’s turbulent mental states—hatred, felt desecration of venerated memories, moral outrage, fear and revived despair. If there is no plausible way for him to escape or prevent the experience, and no legal way to give vent to his barely controllable impulses, and no social value in the malicious conduct that torments him, then he is forced by his own legal system to suffer for no respectable purpose (91-92).

In large part, it is this felt component that converts a mere offense into a profound offense and, so too, into something more, namely, a personal deep affront. Ultimately, then, we must return to the scales to determine whether the Danish cartoons can be prohibited as a wrongful offense on Feinberg’s account. That is, we must consider the seriousness of the offense caused to Muslims by the cartoons and weigh it against the reasonableness of the offending conduct.

In terms of the criteria for magnitude, the offense looks serious indeed. First, if the reaction of offended Muslims is any indication, the general response is quite intense. In some cases, feelings were vented by deadly rioting. Second, the duration of the offense exceeded what we might expect for a daily publication. The cartoons were reprinted across Europe as well as in a Jordanian paper. They are also easily accessible on the Internet. Third, the extent of the offense was great even in Denmark, which is home to roughly 200,000 Muslims. But focusing on Denmark’s Muslims does not characterize the full extent of the offense. One of the facts of globalization is that there are now far fewer information boundaries. The offensive behavior extended around the world, making the cartoons accessible—in principle, at least—to all Muslims. Admittedly, once one knows about the cartoons, the offense is reasonably avoidable. Muslims do not have to go on the Internet and seek out the cartoons. We can assume, however, that some unsuspecting Muslims happened upon the cartoons in their daily reading of one of the many newspapers in which the cartoons appeared.

Should we discount the offense of Muslims who actively sought out the cartoons? The editor of the Jordanian paper that republished the cartoons justified the decision on the grounds that the protestors should know whether the cartoons were sufficiently offensive to merit the protests. There is thus a good sense in which part of the offense was voluntarily incurred. But if we are open to the idea that offensive behavior can constitute a personal deep affront, it stands to reason that potentially affronted parties would have some justification for ascertaining what is being said about them in public.19 Surely we cannot blame them for engaging in the very behavior that would be necessary for making a reasoned response. For the value of free speech assumes that people on all sides of the argument have access to what others have said so that they too can have their say. The possibility of reasoned response is critical in this case, if—as I have suggested—what is being expressed by the cartoons is something about the connection between Islam and terrorism.

Finally, the offense taken by Muslims is not the result of an abnormal susceptibility. For Muslims at least, the response to the cartoons seems to be quite standard. Moreover, their offense hardly looks abnormal among religious people more generally. Most anyone committed to the idea of the sacred can abstract from their particular commitments to comprehend the offense in this case. The Bush administration, for example, said that the cartoons are offensive in the same way that anti-Christian or anti-Jewish cartoons are offensive.20

Whether the discounting factors for the seriousness of the offense are sufficient to undermine the case for a legal prohibition on the cartoons depends on the reasonableness of the offending conduct, the opposing weight on the other side of the scales. The first contributing factor, personal importance, does not obviously offer strong support for the reasonableness of publishing the cartoons. In terms of preference satisfaction, the importance that publication of the cartoons might have for the cartoonists or newspaper editors would seem to be hardly greater than the importance that marching in Skokie might have for the Nazis. Drawing on more objective criteria of importance does little to help. Prohibiting cartoons altogether would certainly make it hard for cartoonists to carry out "the activity by which the actor earns his living" (37), something that is certainly personally important to them. But a targeted prohibition on particular kinds of cartoons need not entail this kind of interference. A claim of personal importance must therefore appeal to the fact that the activity serves more abstract values such as "health, talent, knowledge, or virtue," or that it "is an integral part of a pattern of activities central to his love life, family life, or social life" (37). The success of such appeals will clearly depend upon one’s beliefs about the contribution that the offending behavior makes to these values and about the worthiness of the way of life that the conduct supports. Offended parties, unlike those who carry out the offensive behavior, are apt to question the instrumental value of the behavior as well as the value of the ends at which it is aimed. The extent to which we can characterize the cartoons as "wanton, perverse, or gratuitous" (37), Feinberg’s view recommends, would also cut against a judgment of reasonableness.

The social value of the activity is similarly debatable and, as noted above, the argument for the good of such cartoons for society as a whole cannot garner additional weightiness by drawing on the importance of free expression.21 Recall that Feinberg’s view of the contribution that free expression makes to reasonableness privileges only content of expression, not manner of expression. On Feinberg’s scheme, it would also seem that the presence of available opportunities to produce the cartoons in a way that would be "inoffensive to others" (44), say, in private gatherings of non-Muslims, speaks against the reasonableness of the conduct in this particular case. Finally, the nature of the locality—a country with a substantial Muslim population—makes this kind of behavior quite "rare and unexpected" (44), thereby failing the "Nature of the Locality" test.22 In fact, one justification of the publication of the cartoons appealed to the near inability of an author of a children’s book on Muhammad to find someone willing to illustrate the book.23

The remaining standard for determining reasonableness is motive. On Feinberg’s account, motivations of malice or spite detract from reasonableness. Yet, as a Guardian editorial puts it, "The cartoons…offend and provoke. But that is what cartoons do, whether they are good or bad."24 Cartoons are thus akin to parody, caricature, satire, all of which regularly have a spiteful or malicious edge to them. Does this make them unreasonable? The answer to this question, like the questions of personal importance and social utility, is itself a matter worthy of open discussion and public debate, not of being put on the scales that mediate the offense principle. Interestingly, Feinberg readily expresses his "reluctance to restrict the offense principle to ‘reasonable offense’" because

it would require agencies of the state to make official judgments of the reasonableness and unreasonableness of emotional states and sensibilities, in effect closing these questions to dissent and putting the stamp of state approval on answers to questions which, like issues of ideology and belief, should be left open to unimpeded discussion and practice (36-37).
He fails to recognize, however, that the same worries arise with respect to state-sanctioned judgments of reasonableness for offending conduct.

Unlike an appeal to legal moralism, using the offense principle to prohibit conduct such as the Danish cartoons does not interfere with the liberty of the cartoonists simply on the grounds the behavior is wrong. Nor does the offense principle explicitly count the fact that some people think a particular piece of behavior is wrong as a reason for prohibiting that behavior. Again, Hart rightly tells us that "[n]o social order which accords to individual liberty any value could also accord the right to be protected from distress thus occasioned."25 But Feinberg’s notion of personal deep affront allows beliefs about the wrongness of certain kinds of behavior to squeeze in through the back door. In some cases, especially where religion is involved, a person’s beliefs can be integrally connected to his identity. So even "bare knowledge" of actions deemed unacceptable by a religious view can constitute a personal deep affront. In these cases, the reasonableness requirement subjects the individual who wants to engage in the potentially offending conduct to a higher standard of proof. He must prove that the value of his behavior makes it not only reasonable but also reasonable enough to outweigh the seriousness of any offense he might cause. The offended party, however, need prove nothing about the value of what is believed to be disrespected. He need only show that he and others holds the relevant beliefs about value and that when their belief system is confronted with particular kinds of behavior, they experience serious offense.

The liberal should reject Feinberg’s defense of the offense principle because the case for reasonableness is subject to the same sources of contention that make particular kinds of behavior offensive to some but not to others. People disagree about the value of individual conduct and the worthiness of the kinds of lives to which it contributes. Their experience of religious offense, especially personal deep affront, is bound up with their beliefs about identity and the wrongness of particular kinds of behavior. In practice, the requirement of reasonableness is therefore tantamount to an illiberal limit on individual liberty. Liberal legal philosophy cannot accept any such limit and, so, must make room for the publication of profoundly offensive religious cartoons. Because Feinberg is in no position to show that this kind of behavior must be allowed and because it is his commitment to the reasonableness requirement that renders him unable to do so, we have good reason to question whether the offense principle can be properly mediated after all.

Endnotes

1. For research assistance, substantive commentary, and editorial advice, I want to thank Kate McKinney, Cassie King, Andrew Salek-Rahem, Stefanie Simon, and, especially, Steven Scalet.

2. See Jane Kramer, "Images," The Talk of the Town, New Yorker (February 27, 2006); and "Q&A: Depicting the Prophet Muhammad," BBC News (February 2, 2006) http://news.bbc.co.uk/2/hi/middle_east/4674864.stm. Both articles also discuss more permissive interpretations of Islam, especially among the Shia.

3. Salman Rushdie, interview by Bill Moyers, June 23, 2006, Bill Moyers on Faith and Reason, PBS, http://www.pbs.org/moyers/watch_rushdie.html.

4. See "Cartoons and Their Context: Freedom of Speech," Guardian (London) (February 3, 2006); Oliver Roy, "Holy War: The Cartoon Brouhaha Really Illustrates the Divisions within the Muslim Community, not with the West," Newsweek International (February 13, 2006); "The Twelve Muhammad Cartoons: a Survey of the European Press," and signandsight (February 2, 2006) http://www.signandsight.com/features/590.html.

5. "World Press Eyes Cartoon Controversy," BBC News (February 3, 2006) http://news.bbc.co.uk/2/hi/middle_east/4677464.stm.

6. "Cartoons and Their Context: Freedom of Speech," Guardian (London) (February 3, 2006).

7. Unless otherwise noted, all internal quotes are to Joel Feinberg, The Moral Limits of the Criminal Law, vol. 2, Offense to Others (Oxford: Oxford University Press, 1985).

8. John Stuart Mill, On Liberty, edited by Elizabeth Rapaport (Indianapolis, IN: Hackett, 1978), 97.

9. Ibid., 53.

10. John Wolfenden in BBC interview (September 4, 1957). http://news.bbc.co.uk/onthisday/hi/dates/stories/september/4/newsid_3007000/3007686.stm.

11. H.L.A. Hart. Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963), 41.

12. Ibid., 43.

13. Patrick B. Devlin. The Enforcement of Morals (Oxford: Oxford University Press, 1965), 102. See also 117.

14. Hart, Law, Liberty and Morality, 47.

15. Oddly, however, in what Feinberg presents as a paradigmatic case of personal deep affront—using a dead body for crash tests without the consent of the next of kin—the offensive behavior is not be directed at the individual who actually experiences the offense, namely, the deceased party’s widow.

16. At pp. 88-89, Feinberg describes a hypothetical Skokie case in which he does make this distinction.

17. Charles Ferro. "Igniting More Than Debate," Newsweek International (February 13, 2006).

18. Feinberg acknowledges that in "peeping-Tom and racial insult cases…there is a merging of [personal and impersonal] offense" (59).

19. In this sense, the Skokie case and the case of the Danish cartoons differ from Feinberg’s cases of profoundly offensive behavior being carried out in private. Women and blacks would not be similarly justified in seeking out discrete venues that show violent pornography or racist films.

20. See Joel Brinkley and Ian Fisher, "U.S. Says It Also Finds Cartoons of Muhammad Offensive," New York Times (February 4, 2006).

21. This is not to say that Jyllands-Posten did not make a case for the social value of the cartoons, citing "a tendency toward self-censorship among people in artistic and cultural circles in Europe" (Charles Ferro, "Igniting More Than Debate," Newsweek International [February 13, 2006]). It is rather to say that Feinberg cannot draw upon the social value of the offensive manner of expression, despite that part of what was meant to be expressed was precisely this social value.

22. Feinberg makes both points in the summary of his analysis of a KKK march (96).

23. The children’s book illustrator, but not the cartoonists, remained anonymous.

24. "Cartoons and Their Context: Freedom of Speech," The Guardian (February 3, 2006). See also, Ronald Dworkin, "The Right to Ridicule," The New York Review of Books (March 23, 2006).

25. Hart, Law, Liberty, and Morality, 47. Hart does seem to think that blasphemy falls within the scope of the law when carried out in an "offensive or insulting manner" (44).

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Fall 2006 Volume 06, Number 1

Fall 2006
Volume 06, Number 1