Challenging the right to offend religious sensibilities in the face of foreseeable harm

Using the work of TM Scanlon, along with decisions of the European Court of Human Rights, this paper argues that offensive expressions which carry a real risk of triggering a chain of events likely to lead to avoidable and substantial harm call for an adequate review process to be applied. This review is of both a deliberative and a critical nature. As such, it applies to the expresser contemplating the expression while also providing a basis for others to critique the expresser’s actions should they decide to proceed and make the expression. The argument engages with the role of intention, the relevance of the double effect doctrine and the potential problems in determining permissibility where law would seem to allow the expression to go ahead. It concludes that a review of the nature set out better attunes with ‘duties and responsibilities’ under the right to freedom of expression in law than current legal practice does.