To begin this essay, I warmly invite esteemed readers to embark on a captivating fictional journey. Imagine getting on a bus in the morning, on your way to work or university. The bus is late, you’re in a hurry, and you are desperately waiting for the vehicle to arrive. It finally does. The bus smoke irritates your nose and eyes, but you, the ordinary hero, get on the bus. As you try to work your way through the jammed crowd, you are met with bizarre (or, conversely, regular) oddities. Just as you occupy a seat, a strikingly dirty, pungent passenger sits in the front seat. As you observe him, you see that next to him is a young man in a dizzyingly garish orange t-shirt. To make matters worse, a young man sits next to you, and as soon as the bus takes off, he starts cutting his nails with nail clippers, which, apart from making an unpleasant noise, also puts you in a very awkward position as several of the free-flying nail clippings land on your freshly dry-cleaned trousers. Just when you think the trip couldn’t get worse, a rather dubious-looking man behind you starts playing extremely loud music on his phone without any earphones.

Then, something even more bizarre occurs. The unwashed man sitting in front of you starts to cough hysterically, belching and spitting. The young man in the orange shirt opens a can of raw fish accompanied by raw onions and begins to consume his breakfast close to you, grumbling as he eats. As you look back, the gentleman listening to music joins the Lucullian feast, taking out and eating various pieces of raw animal organs. As in Zimbardo’s experiments, the situation on the bus gets worse. You find yourself observing that the whole bus is eating raw and rotting food, vomiting to free up space so they can eat more and more. The next stop comes, and suddenly all of your journey companions get off. The bus gets silent, and the unbearable smell begins to evaporate slowly. You find yourself at peace, finally, when a family dressed in black to the waist with a coffin boards the bus. Sitting down next to you, they open the coffin and beat the dead man beyond recognition with their fists and various implements, such as hammers and screwdrivers. At the next stop, a girl gets on, wearing a T-shirt with a smiling Christ on the cross, with a print under him reading “Hang in there, baby!” You look behind you as a man unwraps a sandwich from a Hungarian (or the kind reader’s national) flag. He then spits on the flag, blows his nose into it, and wipes the dirt stuck to the bottom of his shoes with it. The bus stops, and there are three more stops to go. Just when you thought that no more obscurities would transpire, a crowd of 20 people gets on, including a completely naked person who kindly greets you and sits in front of you. After a short while, he starts touching himself in front of everyone. On the other seat, two people are having sado-maso intercourse. You are rubbing your eyes as more and more egregious acts take place until the next stop. At the next stop, a man sits down next to you, listening to an old radio. It plays an extremely boring program, and the man feels like there is no better time to start a discussion with you about the results of the local air hockey tournament, which arouses similar interest as the radio broadcast. Before the final stop, you are deliberating whether to get off the bus—after all, what worse could happen? You push the signal, but the doors do not open yet, and the driver invites two gentlemen to quickly get on the vehicle. The first man looks suspicious and scary. He stands next to you, takes out a sharp knife, and plays tricks with it. He looks directly into your fearful eyes and asks joyfully: “Are you scared, buddy?” Enough is enough. You get off your seat and walk to the front of the bus, where a mild-mannered woman lets you in front of her with courtesy. As you observe her, you see that she is wearing a shirt with a giant Swastika armband and has a protest banner in her hand with the words “Kill them all” on it. Then, your stop arrives. You get off, and the driver tells you to have a jolly day with a smile.

Quite a ride, and quite a critique of the Millian harm principle from Joel Feinberg, a modern American legal theorist and philosopher, whose famous “Ride on the Bus” example has been paraphrased above. In his enigmatic book “Offense to Others,” Feinberg seeks to reformulate Mill’s harm principle with his newly-established “offense principle.” However, it is instrumental to first introduce the harm principle as a premise to understand Feinberg and the practical use of his theory.

John Stuart Mill, a prominent English philosopher and political economist, articulated the harm principle in his seminal work, “On Liberty,” first published in 1859. The harm principle asserts that the actions of individuals should only be limited to prevent harm to other individuals. Mill’s fundamental assertion is that power can only be rightfully exercised over any member of a civilized community, against their will, to prevent harm to others. This principle marks a clear boundary for the extent of personal freedom, positing that individuals should be free to act as they wish unless their actions cause harm to others. In a more profound understanding, Mill’s harm principle places significant importance on individual autonomy and the freedom of expression, asking the fundamental question: what can one do/say/express, and what are the boundaries thereof? Mill contends that even opinions we find offensive or false should not be suppressed, as the exchange of ideas is crucial for intellectual and social progress. The harm principle thus provides a robust defense for free speech, arguing that expression should only be curtailed if it directly causes harm to others.

The consequences of the harm principle extend to various fundamental rights and liberties. It underpins the justification for individual rights to privacy, bodily autonomy, and personal choice. By emphasizing the prevention of harm as the sole criterion for restricting freedom, Mill’s principle supports a broad scope of personal liberty in matters such as freedom of religion, lifestyle choices, and consensual adult behaviors. It also provides a framework for evaluating the legitimacy of laws and governmental interventions, advocating for minimal state interference in personal affairs unless clear, demonstrable harm to others is involved. Mill’s harm principle remains a cornerstone of liberal thought, influencing legal and ethical discussions on the balance between individual liberty and social regulation and inspiring vivid debates on the extent of individual rights. One such debate in this context was with his late colleague, Joel Feinberg.

Feinberg expanded on Mill’s harm principle with the introduction of the offense principle. Feinberg’s work, particularly articulated in his four-volume series “The Moral Limits of the Criminal Law” published between 1984 and 1988, dives deep into the boundaries of personal liberty and state intervention. The offense principle, as presented via the above bus ride example, asserts that the prevention of offensive conduct can be a legitimate basis for legal prohibition, even when such conduct does not cause direct harm. This latter point is of critical importance; Feinberg’s principle recognizes that some actions, while not harmful in the Millian sense, can be profoundly offensive to individuals or groups. Feinberg rightly asks and provokes Mill: how should the law address situations where harm may not be evident, but the offense is significant? Seeing a provocative shirt or perceiving smells that cause disgust are excellent instances to illustrate this dilemma. What stands out in Feinberg’s thought is that he acknowledges the complexity of determining what constitutes offensive behavior, emphasizing the need for a more nuanced approach; factors such as the context, the degree of offensiveness, and the availability of alternative ways to avoid offense are crucial in evaluating whether certain conduct should be restricted.

Interestingly, though (undeservedly) rarely addressed in scholarly literature, the offense principle had profound implications for free speech and fundamental rights. While Mill’s harm principle robustly defends free speech, Feinberg’s offense principle introduces considerations for limiting speech that is deeply offensive—a principle that seems to live on in the jurisdiction of numerous human rights courts such as the European Court of Human Rights. To put it into practical context, Feinberg argues that while free speech is essential, there are instances where the offense caused by certain expressions can justify legal restrictions. This includes speech that is profoundly disrespectful, demeaning, or violates the dignity of individuals or groups. From a jurisdictional perspective, it provides a basis for laws and policies that aim to maintain public decency and order, addressing actions that, while not directly harmful, significantly impact the social environment—examples include regulations on public nudity, hate speech, and certain forms of harassment.

To revisit the above statement, one can also propose that there are strong implications in human rights jurisdiction. Human rights courts frequently deal with cases where there is a need to balance freedom of expression with the rights of others not to be subjected to deeply offensive or degrading treatment. The offense principle is pertinent here; it suggests that preventing significant offenses can be a legitimate reason for legal restrictions, particularly in cases involving hate speech, blasphemy, or other forms of expression. The offense principle can aid in the assessment of proportionality and necessity, and more importantly, in interpreting what constitutes public order and morality, as these can justify limitations on certain rights under various human rights conventions.

Is Feinberg the “unsung” hero of the modern adjudication of freedom of expression? Naturally, quoting all legal practitioners’ and scholars’ beloved saying, the best answer would be: “It depends.” It is, nonetheless, instrumental to underline that Feinberg’s offense principle enhances the understanding of why certain limitations on rights might be necessary and justified within the framework of human rights law. The conceptual basis for the idea that the prevention of significant offense, even in the absence of direct harm, can be a legitimate aim in a democratic society lives on in various cases from human rights courts’ practice to the decisions of alternative mediating boards and will, unarguably, continue to do so. The present paper’s aim was to serve as an invitation to scholars, professionals, and interested readers to further enrich the literature on Feinberg’s philosophy, to apply it in a modern context, and essentially, to reflect on a theory that has overstepped the rigid boundaries of scholarly legal literature and become fruitful in practice.

Gergely Ferenc Lendvai is a PhD candidate at Pázmány Péter Catholic University, Faculty of Law. He earned his JD at Eötvös Loránd University of Budapest, Faculty of Law and Master’s degree in Comparative Law at Panthéon-Assas (Paris II) University. His main research areas include online freedom of expression, platform governance, AI and law, online discrimination, and new media phenomena.