John Stuart Mill argued that offense to others is not a permissible ground for a legal prohibition of conduct -- "that the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient reason" (On Liberty, chapter 1). But then Mill also stretched the notion of harm in various ways so as to reaffirm prevailing prejudices about what conduct it is permissible to proscribe. To think about your question carefully, one needs to start with a sharp definition of offense which supports a clear distinction between offense and harm. (Joel Feinberg's work has a lot to offer on this score.) This is a difficult task, and it is quite likely that our linguistic intuitions about what is harm and what is mere offense are shaped by our moral intuitions about what may and may not rightfully be proscribed by the criminal law.

Here are a few examples of conduct most people in developed Western countries find deeply offensive and want to see criminalized: polygamy, pederasty, incest, necrophilia, sex with animals, eating of dead human beings, human sacrifices, physician-assisted suicide (all with the consent of all involved). In which of these cases can the majority adduce a justification for prohibition other than offense? In which of these case, in particular, can the majority plausibly claim to be harmed by the offensive conduct or claim that willing participants in this conduct are being harmed unduly (in a way not justifiable by their consent)? Such claims have been made about every one of the listed cases, and the assessment of these claims then depends on one's definition of harm as distinct from mere offense.

Any realistic criminal justice system will make both types of error: T-errors (terrible future crime committed by one wrongly acquitted) and I-errors (innocent person wrongly convicted).

It seems morally more appropriate here to compare alternative systems feasible for the same society in terms of the total number of errors, not in terms of the ratios you focus on (ratio of T-errors to total number of acquitted, ratio of I-errors to total number of convicted). To see this, take a criminal justice system under which 100,000 are acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. Now suppose we modify this system so that many more innocent people are tried and properly acquitted. So now we have 200,000 acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. So we got the T-error rate from 2 percent down to 1 percent. But have we improved the system? Surely not.

So I rephrase your question this way: In designing our criminal justice system, should we give greater weight to avoiding T-errors or to avoiding I-errors?

There is a widely held view bearing on this question. In one famous formulation by William Blackstone (www.law.ucla.edu/volokh/guilty.htm), it says: “It is better that ten guilty persons escape than one innocent suffer.” I think what stands behind this view is the idea that we as a society bear a far weightier responsibility for harms to innocents that we directly bring about than for harms to innocents that we merely might have prevented.

This idea is familiar in pedestrian contexts. It would be wrong to kill one innocent person in order to save another. It would be wrong to harm one innocent person in order to rescue another from a similar harm. It would be wrong to risk the life of one innocent person to prevent a risk to the life of another (risks being equal). And it would be wrong to cause a risk of harm to one innocent person in order to prevent the same risk of harm to another. In all these cases, agents ought to give more weight to harms and risks of harm they directly bring about than to similar harms or risks of harm that they merely fail to prevent.

This almost answers the reformulated question: We should give greater weight to avoiding I-errors than to avoiding T-errors. I say "almost", because the average harm associated with errors of each kind may not be equal. So the conclusion might conceivably be overturned if the harm done by the average I-error is just a few days in jail without public stigma while the average harm resulting from the average T-error is a minor massacre. But this is not true in the real world. Here, in order seriously to reduce the number of terrible crimes committed by persons wrongly acquitted, we would have to make it easier to convict people accused of very serious crimes and then take those convicted out of circulation for very long periods or forever. And doing this will inevitably increase the number of innocent people who, wrongly convicted, are locked up for very long periods or even executed.

As a matter of prudence, I am inclined to agree with the arguments of the questioner--if one does not want others to photograph one's exposed breasts (or other body parts), one should keep them covered in public.

On the other hand, I don't think that the issue is quite as simple as this. The man who was arrested admitted that he used the photos for his own sexual gratification. But what if he was posting them on a website--perhaps for profit? I think there are somewhat thorny issues here, and do think that the most important ones have to do with legal protections of personal privacy, and where the lines get drawn on this issue. Does appearing in public mean that anyone can photograph me for any purpose whatsoever? That does seem a bit much to me! Here is another example--what do you think of the idea of a pedophile photographing children swimming or running around on a beach in the nude (as one can see in lots of places in the world)? No problem here? I guess I would caution the questioner that the obviously prudent reply that he or she provides tends to mask some important issues about whether our privacy should still be protected from various forms of intrusion even when we are in public--and I guess my own intuitions on this are somewhat mixed. Although I agree they should not be as aggressively protected as when we are in private, I don't think it becomes "open season" when we are in public, either, no matter what we are or are not wearing.

Racist laws and laws concerning slaves provide examples of how legality and morality come apart. A law could make it legal to keep slaves, even if that is immoral; a law could prohibit one from helping someone of another race, even if that is morally obligatory. You can fail to do what is right without breaking any law, and breaking a law may not be immoral.

Extreme contrasts of privilege and poverty are often the result of unjust social institutions such as feudalism and serfdom, for example. In such a context, people in dire poverty may well be justified in violating their society's property laws, in practicing civil disobedience, and even in overthrowing the established order, because those laws and this order lack moral standing. But even in a context of severe social injustice, it is generally not morally permissible to violate any and all laws (e.g., by killing children or by stealing from people even poorer than oneself).

Those administering and enforcing the laws in a seriously unjust society will rarely admit that these laws are seriously unjust and that some violations of them are justified. Still, they ought to reflect on the justice of the laws they apply and enforce and, if they find the justice of some of these laws to be dubious, may well conclude that they ought to punish leniently if at all. They ought also to reflect on the state of mind of the defendant and, if they find her to be motivated by a conscientious and well-founded conviction that she permissibly violated unjust laws, they may again decide on a more lenient punishment or even on acquittal. Even if incorrect, the conscientious and not unreasonable conviction that a law is unjust may be considered an excuse in mitigation of blame and punishment.

Even in a just social context, people may experience severe frustration or great need. In such a context, violating the law is generally not justifiable, but it may nonetheless be excusable in certain cases. It may be excusable, for example, for a single mother to steal a sweet or a small toy because she can ill afford to buy a holiday gift for her child. (This may be excusable to some extent even if it was her own responsibility that she ran out of money before month's end.) In such a case it would be fair to blame and punish her less, if at all, even while a similar theft by a more affluent person is blamed and punished more severely. Here, once again, the relevant difference lies in the defendant's state of mind. Such excuses are recognized in many civilized legal systems.

Well, there is such a formula, actually, the so-called clear and present danger test. This goes back to an opinion Supreme Court Justice Oliver Wendell Holmes composed in regard to the case Schenk v. United States (1919). Schenk was general secretary of the American Socialist Party and had been convicted under the Espionage Act with inciting young men not to enlist for World War I. The Court rejected his appeal, judging, in the words of Holmes, that Schenk's "words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent." Holmes likened Schenk's utterance to that of someone fortuitously shouting "fire" in a crowded theater.

Subsequent jurisprudence narrowed the test in the direction of requiring that the danger, to count as "present," must be imminent. This undermined Holmes's analogy: The cry of "fire" creates an immediate danger, while Schenk's 15,000 leaflets could not have undermined the US war effort except over a considerable time span. During this time span, American citizens would have considered the merits of Schenk's appeal and made up their minds about it, thereby engaging in precisely the kind of political deliberation the First Amendment is supposed to protect. Holmes himself was involved in tightening the test through his dissents in Abrams v. United States (1919) and in Gitlow v. New York (1925), but, though supported by Justice Brandeis, he did not convince the Court's majority. The tightening became effective when the Supreme Court overturned the convictions in Brandenburg v. Ohio (1969) and in Hess v. Indiana (1973). Whether it will survive the present "War on Terror" remains to be seen.

The philosopher John Rawls discusses and defends the test in its tightened form sympathetically in his essay "The Basic Liberties and Their Priority" (reprinted in his Political Liberalism). An important contemporary critic of the tightened test as too tight is Catherine McKinnon, who has advocated outlawing pornographic materials that create a danger of hate crimes against women (the kind of case you pose). (Here Rawls's contractualist reasoning and first priority rule may actually be more supportive of McKinnon's more permissive test than of Rawls's own defense of the tighter version. See answer to Question 160.) McKinnon's arguments, in turn, have been criticized by Ronald Dworkin.

In following and assessing this ongoing debate about the clear and present danger test, it is important to bear in mind the question is was meant to resolve -- the question, namely, what expressions it is morally permissible for the state to outlaw and to punish. This question is distinct from the question which expressions should be viewed as morally wrong. Even if expressions such as Irving's denial of the Holocaust or the Danish cartoons or descriptions of violence against women, creating no clear and imminent danger, should be legal and not punishable as crimes, this does not prejudge the correct moral judgment about them (see answer to Question 959).

When it comes to the case of David Irving, I find myself in complete agreement with the NYU philosopher David Velleman, who argues on his blog that Irving's conviction and coerced confession are a disaster. Together they create the distinct impression that Irving recanted only in order to reduce his sentence. How else are we to explain his sudden change of mind? It is certainly doubtful that, since his arrest, he has come across decisive evidence of which he had previously been unaware.

This is a terrible outcome for those who want to preserve the memory of the Holocaust. As Velleman succinctly argues, "Irving's forced confession of error does more to undermine belief in the Holocaust than his previous denials, by lending color to suspicions that the consensus among historians of the period is the product of coercion. The memory of the Holocaust can easily withstand the denials of someone like Mr. Irving, but only if the refusal of historians to agree with him is clearly due to the force of evidence rather than the force of law. The freedom to deny the Holocaust should therefore be precious to anyone who wants to keep the memory alive."

I agree that your solution works as well or better. Here are two different arguments a consequentialist might make.

(1) Suppose all attempted murders are punished equally, regardless of success, with each attempt being punished with 6 years in jail and 30% of punished attempts successful. Now consider this reform: We increase punishment for successful attempts from 6 to 13 years and decrease punishments for unsuccessful attempts from 6 to 3 years. This reform leaves constant the jail time per punished attempt (which consequentialists typically count as a negative): 13 x 30% + 3 x 70% = 6. (Obviously, the numbers here are just for illustration.) But the reform is likely to increase deterrence, because prospective murderers are going to focus more on the "successful" outcome that risks a 13 year penalty than on the (actually more likely) "unsuccessful" outcome that risks a 3 year penalty. As a result of better deterrence, fewer murder attempts are made, fewer people are murdered, and fewer years are spent in jail. (Obviously, for this argument to work, I must be right about the psychology of prospective murderers.)

(2) Whether an attempted murder succeeds or not is sometimes due to luck. But it is often correlated with features of the agent (greater relevant abilities, will power, nerve, lesser moral scruples, and so on). Therefore, those whose murder attempt succeeds tend to be more dangerous, on average, than those whose murder attempts fail. Also, given that criminals often commit further crimes, an extra year in jail for a more dangerous criminal better protects the public from repeat offenses than an extra year in jail for a less dangerous offender. It therefore makes sense to shift jail time from unsuccessful to successful attempters.

..... But, if these are good arguments, might consequentialists want to advocate that only successful attempts should be punished?

As well as the important question of principle (which I shall largely leave to others), there are ipmortant practical questions here: Exactly which religious sensitivities should be given legal standing? What counts as offense? How should it be determined whether publication serves a particular public interest? Perhaps more importantly, by whom should it be determined?

And why limit it to speech? To borrow from a recent column in the Boston Globe by Jeff Jacoby (with whose overall point I do not actually agree), should the eating of beef be banned on the ground that it is offensive to Hindus? Should women be forced to "cover up" on the ground that the display of female flesh is offensive to many extreme traditionalists? Quite apart from the question of principle, this does not seem a road down which one really wants to travel.

For that matter, why limit it to religious sensibilities? There's a lot that offends me, some for religious reasons, some not. Why privilege the former?

None of that is to say that anyone should publish material that offends religious sensibilities, or needlessly offends for any other reason. It's simply to say that it's not a good idea to have laws that prohibit the publication of such material.