Joel Andrew Lee Feinberg

The offense principle requires that an unpleasant state of mind or offense be produced wrongfully by another party, but not that it be an offense in the strict sense of ordinary language. The legislative problem of determining when offensive conduct is a public or criminal nuisance could be expressed, with equal accuracy, as a problem about determining the extent of personal privacy or autonomy. The former way of describing the matter lends itself to talk of balancing the independent value or reasonableness of the offending conduct against the seriousness of the offense cause, whereas the latter way lends itself to talk of drawing boundaries between the various private domains of persons, and between private domains of a person and the public world.

A wholesale ban on uttering or writing obscene words cannot be justified even by the principle of legal moralism. Moreover, the offense principle cannot justify the criminal prohibition of the utterance of obscenities in public places even when these are intentionally used to cause offense. The use of obscene words can only be made criminal when it is an unjustified, deliberately imposed nuisance. This form of nuisance is a kind of harassment, and the fact that it employs obscene words is by no means essential to its moral gravamen. Obscenity in the media is discussed.

Obscene words have the capacity to offend and shock listeners, and in some cases even fill with dread and horror. The class of words that are either obscene, totally disreputable, or naughty enough to be forbidden, is diverse and heterogeneous. These include sexual vulgarities, other “dirty words”, political labels, ethnic slurs, insulting terms, and religious blasphemies. Obscene-to-naughty words and phrases can be classified into two main categories: profanities and vulgarities. Derivative uses of obscenity are discussed.

Invective has various uses including expressive intensification, bandinage, calumny, insult, challenge, and provocation. For many of these uses, obscene words can advance the purposes of the speaker, but are inessential and self-defeating in many cases. The relation between some of the most common styles of invective and older forms of malediction, the uses of invective, the doctrine of fighting words and its difficulties, the role of obscenity in invective, and derivative uses of obscenity are discussed.

The legitimacy of criminal law’s concern with offensiveness even in the absence of harm or danger must rest on the intuitive force of the examples given, most of which have been made as extreme as possible and depicted with uncompromising vividness. The seriousness of an offense is determined by four standards: the magnitude of the offense, the standard of reasonable avoidability, the Volenti maxim, and the discounting of abnormal susceptibilities. Having determined the seriousness of a given category of offense based on these standards, the legislator will proceed to balance that seriousness against the reasonableness of various kinds of conduct that can produce it.