The problem is that “harm” is no longer the straightforward economic or legal category it was in the nineteenth century. It is now more a matter of feeling, or of psychological disposition, than of the despoliation of property, the damaging of a body, or the denial of the franchise. And that is why free speech has come under under such pressure. Speech that directly incites people to harm others is not protected under the First Amendment. But once “harm others” means “make someone feel bad,” then any statement that might be deemed hurtful is liable to be regarded, not even as an incitement to a crime, but as a crime in itself.
Recently I took part in a panel discussion on the nature of civil society. At some point in the proceedings, I was asked whether there was any possibility of recasting Mill’s harm principle for use in contemporary defenses of traditional morality. Given the prevalence in contemporary ethical discourse of the language of psychological harm, Mill’s idea does have a certain appeal. So can we defend traditional moral positions in the terms set by Mill?
On the surface, this seems an auspicious approach to argument in the public square. A defense of traditional morality that co-opts the vocabulary typically used to support the categories of hurtfulness and victimhood would surely prove potent. Yet the approach is fatally flawed.
Mill’s argument works when the criteria for “harm” can be assessed in terms of external conditions. Poverty, legal oppression, lack of voting rights—these are all things that arguably harm those who are subject to them, and are all generally assessable by agreed public standards. The problem today, as I have noted before, is that “harm” is increasingly understood in psychological terms. That makes it a vague concept, vulnerable to manipulation and increasingly political.
The emergence of hate as a factor in judicial proceedings is a good example of this development. In a world where psychological victimhood absolves those who claim it from moral responsibility, hate has come to function as an attribute of the worst crimes. Of course, the addition of “hate” to “crime” makes the bodies and property of certain classes of people more valuable and important than others’. The thug who attacks a gay man because he is gay faces a harsher penalty than the thug who attacks a red-headed girl because he hates the color of her hair. In the eyes of the law, the gay man deserves more protection than the red-headed girl.
The notion of “hate crimes” should be a pointless tautology. How many murderers kill their victims because they are really quite fond of them? The same applies to rapists and muggers. The relationship between perpetrator and victim is rarely one of affection or indifference. Hateful disregard of the other is characteristic of most violent crime.