Lately, there has been a lot of discussion in the media on the moral and/or legal responsibility of individuals and institutions to protect individuals (and classes of individuals) from various micro-aggressions. Issues include the question of whether transgender persons OUGHT to use male or female designated restrooms. Does an “ought” imply legal coercion one way or another? How do micro-aggressions relate to macro-aggressions or harms?
Philosophical ethicists approach “ought” questions in terms of conflicting moral principles: utility, beneficence, harm to others, liberty, and justice. They also argue over whether an “ought” requires monitoring and enforcement by government; that is a law.
The Liberty Principle (like all moral principles) is limited by the other four principles. In previous blogs I discussed several proposed liberty-limiting principles: harm to others (you can do whatever you want but you cannot harm others), harm to self (you can do whatever you want but you cannot harm yourself), harm to public institutions (you can do whatever you want but you cannot harm public institutions) and legal moralism (you can do whatever you want but government reserves the right to monitor and enforce rules against harmless immoralities (speech and acts) or “micro-aggressions.” Here I’d like to focus on an especially timely liberty-limiting principle. The offense principle states that you (individuals and groups) can do whatever you want but you cannot "offend" others.
First, let’s admit that the act of being offended is a social phenomenon. It is something that is done to us by others in a social setting. We can’t “offend” ourselves. Moreover, we know when we are being offended based on a distinctively unpleasant non-cognitive, feeling or emotion. The experience of that emotion affects both our subsequent thought and behavior to greater or lesser degrees. Thus offense is subject to “greater and lesser” degrees. Micro-aggressions by definition, involve low-level aggressions and feelings. When we experience a micro-aggression sometimes we are able to tolerate those unpleasant feelings and control our subsequent thoughts and behaviors. Sometimes we can’t (or won’t) and subsequently seek moral and/or legal retribution; ranging from a simple apology, to verbal, physical and/or financial punishment.
As a liberty-limiting principle, the offense principle states that in the exercise of our personal liberty, we have a negative duty to avoid offending others. And, when we do offend others we have a duty to offer them some form of just retribution. But sometimes we deliberately offend others and sometimes we do it inadvertently. Inadvertent offenses result from not knowing something about the person or persons that you offended: Sometimes you “should have known better.” And, sometimes you “couldn’t have known better.” If you are offended by another person or group of persons (deliberately or inadvertently), what are the duties of the offender? What is fair retribution for any given micro-aggression?
The most obvious difficulty with applying the offense principle as a liberty-limiting principle is that we all have different levels of sensibility in response the speech and acts of others. What offends one person may not offend another. Therefore, offense is largely contextual. At least some people are offended by rap music, public nudity, burning the American flag, Rush Limbaugh's radio show, and/or houses painted pink. On the other hand, there are at least some words and actions that are universally regarded as offensive in most or many contexts. No one enjoys being called fat, ugly, or stupid. Most of us would prefer not to see someone defecate in public. No one enjoys being spat upon. Does the fact that there are some quasi-universally offensive speech and acts, suggest that there ought to be (at least some) laws that prevent the use of those words or the performance of those acts?
Recall that John Stuart Mill argued that legality ought to be limited to the sphere of harmful human actions and that speech can be justifiably regulated only to the extent that it harms others: “You can’t yell fire in a crowded theater.” Legal philosophers argue over the extent to which speech can be harmful, and whether at least some offensive, but otherwise harmless actions or speech ought to be morally and/or legally regulated. The line between aggression and micro-aggression is murky at best. If you have AIDS and spit at someone that act may be not only offensive, but it may also violate the “Harm to Others Principle.”
Again, the basic problem with both the moral and legal applications of the offense principle is that some of us have relatively “thick skin” and are not easily offended; and, some of us have “thin skin” and are offended very easily. Skin thickness of individuals is shaped psychologically by biological, individual, and cultural causation. There are probably evolutionary reasons why the vast majority of humans are offended by being spat upon or being called names that refer to other human excretions. Some of us are offended by certain acts because of something that happened in our personal lives. Others are offended based on cultural norms. Many Muslims are offended by scantily clad women in a public park or by someone walking their dog.
The deontological ethics of micro-aggression requires specifying the corresponding rights and duties of both those who are (in fact) offended; and, those who deliberately (or inadvertently) offend them. In my next blog I’ll take a look at a couple recent case studies involving the application of the Offense Principle.