Joel Andrew Lee Feinberg

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 term “pornographic” is a purely descriptive word referring to sexually explicit writing and pictures designed to induce sexual excitement in the reader or observer. To use the terms “obscene” and “pornographic” interchangeably, as if they referred to the same thing, is to beg the question of whether any or all pornographic materials are obscene. Whether any given acknowledged form of pornography is really obscene is an open question to be settled by argument and not by definitional fiat. The following subjects are discussed: the contrast between pornographic writing and literature and drama; artful pornography; pornographic pictorial art, poetry, and program music; how sex can be obscene; the feminist case against pornography; and violent pornography.

Obscenity is the language of impiety, irreverence, and disrespect. Some use it to convey a disrespectful attitude towards a person or platitude, while others use it to reject the prevailing norms of propriety. The meanings of the terms euphemism, cacophemism, prophemism, and disphemism are explained. The reaction to excessive euphemization, two strategies for ridding the language of obscene words, the phenomenon of dirty-mindedness, and the case for retaining the obscene vocabulary are discussed.

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.

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.