The difficulty in Mill’s theory is how harm is defined. Without clear definition, using harm as a justification for interference by the government could be a slippery slope to a totalitarian state. In this instance, truth would be suppressed. Therefore, it becomes essential to define harm. Unfortunately, Mill did not do so clearly. He did argue that the only justification for moral judgment and punishment is when there is ‘injury to others’ or their interests, ‘definite damage’, or ‘offences against the rights of others’ (Mill, 2007). These statements can be interpreted extremely broadly. If harm is defined in these terms, the extent of the harm caused must be considered before intervention takes place. As a utilitarian, Mill believed that whatever brings the greatest happiness should be the path that is followed. If harm is interpreted in one of the aforementioned ways, speech could inflict harm upon a person. Mill argued that the harm done to the victim must be greater than the damage done to society and the individual by oppressing free speech. He considered that the harm must have already happened or the likelihood of it happening must be high before intervention takes place. Consider the example of Fabrice Muamba. On 17 th March 2012 Muamba, a professional football player for Bolton Wanderers, had a cardiac arrest on the pitch during a match against Tottenham Hotspurs FC. In the hours that followed Liam Stacy, a student at Swansea University, proceeded to direct racial hatred towards Muamba via twitter. Following this he was arrested and sentenced to 56 days in prison for inciting racial hatred under the Public Order Act 1986 (BBC news, 2012). Let us consider this case in Mill’s terms. Firstly we must consult the harm principle. While it is clear that harm was done to Muamba through the racial slurs, was the harm caused enough to justify intervention and therefore compromise Stacy’s freedom of speech? However, Mill has distinguished between harm and ‘offence’. According to Mill the suppression of free speech cannot be justified by mere offence, instead actual harm must be caused or there must be a high possibility of actual harm. He used the example of a corn dealer to illustrate this idea: ‘An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled in the form of a placard.’ (Mill, 2007). In this case Mill argues that if the corn dealer is injured or his property is damaged by the crowd harm has clearly occurred therefore, freedom of speech should be impeded. However, if no actual harm is committed but only offence caused by the speech, suppression is not justified. When we consider the case of Liam Stacy it seems that Mill might have argued that only offence was caused to Muamba and no actual harm. Therefore, Mill would reject Liam Stacy’s imprisonment on the grounds that it damages the free market of ideas and could lead to ‘truths’ being buried. Even though Mill might agree that Liam Stacy was incorrect in his opinions, he would not silence him because Mill argued that Stacy’s view would be opposed by the majority and the truth would prevail accordingly. The public outcry against Stacy’s comments perhaps suggests that this was the case. Furthermore, as a utilitarian Mill would also argue that locking Liam Stacy up for 56 days and silencing his opinion would cause more harm than the initial racial comments caused Muamba. Further complicating this issue is what Mill termed the concept of customary mortality. Mill thought that customary morality was a set of moral principles which most of us are brought up to accept and which forbid, for example, murder and theft. The best way to think about customary morality is to think of them as rather crude ‘rules of thumb’ (Crisp, 1997). Mill argued that if these rules are generally followed then utility will be maximized in the long run. This solves the problem that would otherwise occur of having to weigh up every decision against the utility principle, a time consuming process which would paradoxically reduce utility. Considering the Muamba case in this light brings about further considerations. If Stacy’s racist opinions are contrary to customary morality Mill argued that this could justify interference: ‘Offence alone cannot justify suppression, unless it is in line with that part of customary morality which is
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