Sunday, 28 May 2017

Dying For The Right To Say It: What do we talk about when we talk about free speech?

(This post was originally published as an article early in 2016 on another website, now defunct.)

There is a story of a Czechoslovakian dissident who, as Communism began to collapse at the end of the 1980s, was asked what he was most looking forward to about living in a free society. He replied that he was looking forward to being able to sit next to someone on a park bench and say “I don’t think much of this government”.

Free speech has been one of the big cultural flashpoints of the last few years, both here and in the US. What it means; who is entitled to it and under which circumstances; how it should be weighed with other considerations; whether it is always a trump card. All these questions have been widely discussed.

I should lay my own cards on the table and say that I take a maximalist view, i.e. I think that we should have a very strong presumption in favour of the expression of ideas, and a very strong presumption against suppressing, preventing or threatening it.

Free speech, like the right to a fair trial and the presumption of innocence, is a procedural virtue, which is why fanatics and revolutionaries hate it. In practical terms this means, inter alia, that speakers invited to venues should be able to speak without interruption, harassment or intimidation; that protests against particular speakers – while themselves a form of free expression requiring protection – should not be allowed to become physically threatening. It also means that those who provide spaces for speech and debate should be willing to stand by, and stand up for, free expression of ideas.


There is a difficulty in the debate, and it is this: almost no-one actually believes that there should be no moral or legal limits on what people say. I doubt you would find many takers for a conception of free speech that permitted me to hurl obscenities at small children in the street whenever the fancy took me, or to play loud dance music outside a funeral.

This ambiguity provides an opportunity for unscrupulous sophists who wish to shut down discussion of ideas. Free speech is an illusion, they say, a chimaera. There is no such thing. Ergo, complaints about infringements of it are self-serving and incoherent. We heard an iteration of this supposed argument when an Oxford college bowed to the demands of student protesters and cancelled a debate on abortion. One writer defended the decision by asking whether those who wanted the abortion debate to go ahead would still stand up for free speech if a speaker was calling for the death of all gay people.

But the ambiguity is less important than some people think. Of course we have laws about harassment, defamation and incitement, and it is not always easy to define these things. Nevertheless, the existence of grey does not refute the existence of black and white. It is unsustainable to argue that any imprecision in the boundary of a concept renders that concept meaningless (this mistake in reasoning even has its own name: the continuum fallacy). There are plainly such things as tall men, even though no-one can pinpoint with any certainty the precise point at which a man can be said to be tall. It is not always easy to say when speech crosses the boundary into incitement, defamation or harassment, but that does not mean that we must take seriously all claims that speech is damaging.

Defenders of free speech are arguing not only for free speech as an abstraction, but a wider culture of honest debate, factual argument, respectful disagreement, and civilised co-existence with people who see the world very differently from us. Complaints about attacks on free speech can be seen as proxies for concerns about the maintenance of this culture, particularly in the context of the university.

So in a sense, free speech isn’t one thing. It’s many things. It’s a whole network of overlapping norms about the exchange of ideas. One thing that people commonly mean when they say “free speech” is “if I’m invited to give a talk somewhere I should be allowed to do so without intimidation, interruption or threat, and people who want to come and listen to me should be able to do so”.

Free speech means something different in the context of a university debate than in the context of an article in a scientific journal, and something different again on the editorial page of a newspaper. At the heart of all of those norms, however, is the notion that debate about ideas should not be restricted and that people should not feel inhibited from discussing their views. We should not be constantly glancing over our shoulder before we dare to venture a dissenting view. Hence the enemies of free speech include not just those who pass and enforce restrictive laws, but also those who contribute to our culture of censoriousness, by putting pressure on others to cancel talks, delete articles, and refuse jobs to holders of controversial views. I might also include in this category those who make frequent use of words like “racist”, “bigot” and “homophobe”. These are serious accusations to make against people and can contribute to an atmosphere of intimidation and self-silencing.

US statesman Adlai Stevenson once defined a free society as “a society where it is safe to be unpopular.” This seems to me to be a very profound point. Free expression is not simply about the absence of formal legal restrictions on what can be published or said without fear of state punishment. An instalment of the onlinecomic strip xkcd once mocked people who complain about their free speech being undermined because they are denied a venue, shouted down, boycotted or removed from a TV programme, or because they faced “consequences” of their speech. The cartoon claimed that free speech meant simply that the government couldn’t arrest you for what you said. Nothing more.

But a moment’s critical thought reveals that this is a highly sinister interpretation. Being sacked from your job or having people refuse to do business with you because of your opinions may not be a direct legal attack on your free speech, but it is plainly a form of suppression of thought and opinion, a kind of poison to an open and liberal society. It may well be no business of the criminal law if people are abused, mocked or ridiculed for their opinions, or denied any platform on which to express themselves. The question must be asked, however, is it healthy for a country which aspires to be diverse and pluralistic?

JS Mill, one of the founding fathers of modern liberalism, understood the force of this question, stressing in his On Liberty that threats to individual liberty came from the “moral coercion of public opinion” as well as “physical force in the form of legal penalties”. In US and Canadian law we find the legal principle of “chilling effect”, which refers to people being discouraged from the exercise of their legal rights by the threat of legal sanction; however, it seems to me that it works equally well as a general warning of the dangers of allowing opinion to be suppressed by extra-legal means.

Some time ago the controversialist Katie Hopkins was invited to speak at Brunel University. When she stood up to speak, almost the entire audience got up and left the room or turned their backs. Now this was not an infringement of her free speech – but nor was it a sign that those students were particularly interested in the maintenance of a healthy culture of debate and discussion on their campus.

At this point in the argument, I once again seem to hear the voice of our sophist friend, the clever cynic who sees through everything and so sees nothing at all. “Aha”, he says. “So you’re saying that we shouldn’t exercise social sanctions against any opinions at all? Surely some good has been achieved in the past by using the force of public opinion to drive completely unacceptable opinions from the public square?”

I readily concede that there is some truth in this objection, and that the retreat of—for example—everyday racial bigotry is a good thing in a civilised society and has been at least partly achieved through social pressure. But all this proves is that real life is complicated, and that even the most important political principles have grey areas around the edges; it does not mean that the grey areas overthrow the entire principle.

The importance of an open society is such that we must be very careful about terming opinions unacceptable and dangerous. It cannot simply depend on how people feel about a given view, or its supposed “offensiveness”; these are uselessly subjective. The impetus must always be on the defender of ostracism and social pressure to justify a particular act of social coercion with concrete evidence.

I am not unsympathetic to the view that free speech should be used with consideration and care. If you asked me whether there was a general moral obligation to avoid giving gratuitous offence to people, I would say yes, of course. But if you ask me whether the law should enforce this obligation, I would say no, absolutely not. The best laws are the clearest laws. Quantifying offence and hurt feelings in any legally useful way is essentially impossible. This is why it is so gratifying to see rulings like that given by Lord Justice Sedley in Redmond-Bate v DPP (1999):

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

Resounding as LJ Sedley’s words are, the last clause of the first sentence—excepting incitement to violence from the protection of the law—provides a useful rhetorical weapon for those opposed to free expression. It has become increasingly common for people to argue that some words and ideas constitute a kind of violence, and so should be regulated and prevented in the same way as violence. In late 2015, for example, many students at Cardiff University petitioned for Germaine Greer to be banned from giving a talk on the grounds that her scepticism about whether transgender women were really women “erased” and “invalidated” the lives of transgender people.

It is only possible for moderns to conflate speech and violence because of a peculiar view common among Western intellectuals. This notion marches under various different banners—critical theory, post-modernism, post-structuralism—but in summary it is this: ideas, social customs and cultural artefacts should be understood primarily in terms of the power relations supposedly embedded in them, rather than as claims to reflect objective truth or reality. So while a defender of free speech might think he is standing up for a universal principle, his opponent is convinced that he is simply seeking to justify and perpetuate the unequal power distribution that has enabled him as a straight white male to live a life of privilege.

This is not the place for a long explanation of the wrong-headedness of this view, but its prevalence must be borne in mind when trying to understand the intractability of the free speech debate.
Although this is a kernel of truth in the insight that words can be hurtful, the conflation of robust disagreement with actual violence is very dangerous, because the distinction between violence and words is absolutely crucial to civilised life. The whole of civilisation is, in a sense, a struggle to contain and manage the inevitable conflicts that will occur in any group of humans, to defuse tensions and disagreements through compromise and co-operation, to develop peaceful ways of living together, to discover truth through experiment and discussion not assertion and physical compulsion. If this distinction is based on a lie, if words and ideas are simply another form of violence, and argument the mere assertion of power, there is nothing left but force and will, and that way madness lies.

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