Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?. Mick Hume
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The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.14
It is enough to make you wonder what might escape such a broad net of ‘conditions, restrictions or penalties’. The ‘public safety’ and the ‘protection of health and morals’, for example, sound like the sort of catch-all excuses for restricting free speech beloved of dictators down the decades. Once a formal commitment to freedom of expression is hedged around by so many caveats, it appears as a triumph for the alleged responsibilities over the actual right. It is the restriction of speech in the name of freedom. And it is ultimately up to the learned judges of the UK and European courts, of course, to decide just how much liberty to allow.
In the US, the First Amendment to the Constitution sets out a far clearer commitment to free speech, stating baldly that ‘Congress shall make no law … abridging the freedom of speech, or of the press’. Those fourteen words set a global gold standard for free-speech law that has still to be equalled anywhere in the world more than 200 years later.
Some of us in the UK get called ‘First Amendment fundamentalists’ for arguing that we could do with a First Amendment-style hands-off attitude to free speech over here. It is not meant to be a compliment, but to imply that there is something of the dangerous extremist about embracing the spirit of the First Amendment. That is a sign of the times.
Yet from the point of view of this free-speech fundamentalist it is arguable that even the First Amendment does not take us far enough. Even in its own legalistic terms, it leaves the interpretation of freedom for the whole of American society in the hands of the nine Supreme Court justices. It is for them alone to judge, for example, whether what somebody says crosses the line from protected speech to ‘fighting words’ which are granted lower protection. As that same authoritative legal textbook observes with lawyerly understatement, this ‘still leaves the right to free speech somewhat exposed’.15 As we shall see, there have been times in not-so-distant history, such as around the First World War and during the Cold War, when the Supreme Court generally took a dim view of the free-speech rights of any radical political views and dismissed those it deemed to pose a ‘clear and present danger’ to the status quo.
Once you step outside the legal confines of the courtroom, the power of the First Amendment to protect free speech in America is severely limited. The constitutional ban on legal censorship by the state has not prevented the proliferation of informal censorship and bans across US college campuses, for example.
Those who imagine the US safe from all this behind the all-important First Amendment forget that, even in America, the cultural tide appears to be turning against free speech. We might all do well to recall the words of the US judge Learned Hand who, speaking in 1944 at a wartime rally for liberty in New York’s Central Park, warned against investing ‘false hopes’ in the paper constitution and the courts to protect freedom: ‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.’16
Free speech may not have died in the hearts of the men and women of the West, but it is ailing badly. The combination of official censorship, unofficial censorship and self-censorship is reducing the scope for debate, creating a climate of stultifying conformism and the fear of straying from the straight and ever more narrow. Free speech is left looking like that ‘free-range’ chicken, fenced in and approaching its use-by date. If we want to live in a truly tolerant world we should reject every demand to cage, censor, parole or punish speech. No matter how sympathetic a case the censors make, and however much you might abhor the words others use.
Behind the universal lip service paid to the principle, if we forget the true meaning of free speech the losers will not only be those relatively few who find themselves banned or prosecuted for ‘speech crimes’. We will all be the poorer for allowing the creation of a culture in which people become scared to say what they mean, development of knowledge is stifled, political debates effectively suspended, and where, as the chapters in this section show, from the university campus to the internet we are living with a bland, ‘safe’ environment in which anodyne becomes the new normal.
It’s time to expose the free-speech fraud of those who claim they support it in principle yet dump on it in practice, and to take a stand for unfettered free speech. That will involve a considerable leap in imagination from where we are. Our society has forgotten why free speech should count above other concerns. Such is the lack of faith in freedom that it is not unusual to hear free speech talked about as some kind of trick, something that people ‘hide behind’ to pursue a different agenda. It is now considered almost unimaginable that anybody could support free speech without a long list of exceptions.
As the political director of Huffington Post UK stated in matter-of-fact style in the aftermath of Charlie Hebdo, ‘None of us believes in an untrammelled right to free speech. We all agree there are always going to be lines that, for the purposes of law and order, cannot be crossed; or for the purposes of taste and decency, should not be crossed. We differ only on where those lines should be drawn.’ Unfortunately his presumption was pretty well justified.17
Some of us do, however, believe in ‘an untrammelled right to free speech’ where opinions and ideas are concerned, regardless of whether or not they might be to our or somebody else’s taste. Much of this book is devoted to challenging the arguments for drawing more sweeping lines through free speech for the alleged purposes either of law and order or of ‘taste and decency’.
To turn things around means dealing with new opponents of free speech today. The next chapter examines the creeping problem of the silent war on free speech – a war fought by those who claim to support free speech, but … The battlegrounds are many in this war. It is primarily a fight, not just against censorship, but conformism; not just to end restrictive laws, but to free the mind of society.
As the Victorian genius J. S. Mill says, in his landmark essay On Liberty, ‘Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them’.18 The consequence of what we have forgotten about free speech has been to give a free hand to those who wish to impose conformist ideas as ‘rules of conduct on those who dissent from them’. However it is presented and excused, the result of infringing on free speech is always to close down discussion and bland everything out in a world of grey conformism.
No doubt the awful truth is that a world in which we enjoy free speech will contain ugly, difficult and hurtful ideas as well as good and inspiring ones. But the alternative to free speech is inevitably worse. That is why free speech is always a price worth paying, and much too important to pay mere lip service to.
2
The age of the reverse-Voltaires
I believe in free speech. You believe in free speech. Everybody with more than two free brain cells to rub together in the free world believes in freedom of speech. Or so they say.
‘Blasphemers’ can be sentenced to death in Islamist states. The internet might be censored to near-death in Communist China. In our civilised Western universe, however, we still enjoy freedom of expression. Or think we do.
Ignoring