NCJ Number
99550
Date Published
1985
Length
344 pages
Annotation
In this second of a four-volume series examining moral issues of law, the author examines the offense principle, which holds that preventing shock, disgust, or revulsion is a morally relevant reason for legal prohibitions such as those against pornography and obscene language.
Abstract
Following a clarification of the concept of an offended mental state and conditions that might produce it, the principle of offense is contrasted with that of harm set forth in the first volume. Offensive nuisances and profound offenses are distinguished, and their nature described. In legislating against moral offenses, it is argued that the following (and conflicting) interest be weighed: the intensity and durability of the offense, its unavoidability, the generality of its offensiveness, its personal value to the offender, its general social value, and its motivation. In the subsequent examination of the notion of obscenity as applied to people, behaviors, language, and pornography, the nuisance/profound distinction and the weighting of conflicting interests are discussed. The analysis of pornography considers its relationship to obscenity and to artistic expression, the feminist case against pornography, and violent pornography as a profound offense. A critique of judicial formulas for evaluating obscenity suggests that the moralistic paternalism in current judicial approaches is inconsistent with both State interests and the Constitution. The analysis of obscene language focuses on the diverse functions of obscene words (including humor, description, intensification, and invective) and changes in social perceptions of what constitutes obscene language, and/or the avoidability of exposure. Finally, cases are made for the retention of obscene words in the vocabulary and against the regulation of obscene language on the air waves. Footnotes and an index are provided.