Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?. Mick Hume
of Islamic civilisation in the Middle East and Spain, had a disposition towards freedom of thought and speech that set them apart.
The advance of free speech has been key to the creation of the freer nations of the modern world. Every movement struggling for more democracy and social change recognised the importance of public freedom of speech and of the press for articulating their aims and advancing their cause.
One sure sign of the historic importance of free speech to liberation struggles is the instinctive way that tyrants have understood the need to control it to preserve their power. Thus during the struggle over slavery in America in the nineteenth century, the slave-owning classes did all they could to suppress any public discussion of slavery as a means of keeping control. Southern states outlawed criticism of slavery and used gag rules to prevent the US Congress in Washington even discussing anti-slavery petitions. As the anti-slavery campaigner (and former slave) Frederick Douglass said in ‘A Plea for Free Speech in Boston’, after an 1860 meeting to discuss the abolition of slavery was attacked by supposed gentlemen in that civilised northern city, ‘Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power … Slavery cannot tolerate free speech. Five years of its exercise would banish the auction block and break every chain in the South.’6
History-making movements and individuals have demonstrated that if not for the fight for free speech, other freedoms would not be possible. Without the ability to argue your cause there would be no way to clarify your aspirations, make clear your demands, or debate how best to strive for them.
More recent struggles for freedom and equality in Western societies were just as intimately bound up with freedom of speech. The demand for free speech, for the right for their voices to be heard, has proved central to the struggles for women’s emancipation, gay liberation and racial equality in the UK and US. There is a grim irony in the fashion for feminist, trans or anti-racist activists today to demand restrictions on free speech as a means of protecting the rights of the identity groups they claim to represent. Without the efforts of those who fought for more free speech in the past, these illiberal activists would not be free to stand up and call for less of it in the present.
Free speech at its best has involved the freedom to challenge the most ardent orthodox beliefs of the day, regardless of whose toes that might tread on. That is why the essence of free speech is always the right to be offensive. Those who would deny the right of others to break taboos, offend against the consensus and go against the grain of accepted opinion would do well to remember where we might be without it.
Anybody suggesting now that the Sun circles the Earth would be accused of insulting our intelligence. Yet even four centuries ago, the notion of God’s Earth orbiting the Sun as a mere satellite and acolyte was among the most offensive ideas possible to Europe’s ruling religious and political powers, and they condemned as heretics the likes of Bruno and Galileo who suggested it. It would be hard to imagine anything more offensive in twenty-first-century Western society than trying to deny votes to women or demanding the reintroduction of legalised slavery. Yet not so very long ago those who opposed such oppression were being arrested and worse for offending against the state or nature in our Anglo-American civilisation.
The right to be offensive is not about the freedom to fart in a restaurant, or to yell drunken abuse in the street, or to direct personal insults at the Pope’s or anybody else’s mother. Heat and passion are important. Being honest and above all clear in what you say, however, is usually more important than just being loud or lairy. Being passionate about your argument need not necessarily involve being profanely rude to the other side (although it might).
But the right to be offensive is really about what you say rather than the way you say it. It is about having the liberty to question everything; to accept no conventional wisdom at face value; to challenge, criticise, rubbish or ridicule anybody else’s opinion or beliefs (in the certain knowledge that they have the right to return the compliment to you).
This is what makes the right to be offensive so invaluable, the cutting edge, the beating heart, of freedom of speech and of the press. What, after all, would be the point of those freedoms if you were only at liberty to say what somebody else might like? How could it be a right if it was withdrawn the moment you choose to use it to say what others consider wrong?
Remembering why free speech matters so much should lead us to demand more of it rather than less.
In recent years it has been easy for civil liberties lobbyists in the UK and Europe to appear rather smug about free speech on the home front. They could go about banging the drum on behalf of free-speech martyrs in China or Iran, whilst pointing out that, in our societies, freedom of expression had been made safe by the European Convention on Human Rights (ECHR), incorporated into UK law under Tony Blair’s New Labour government by the 1998 Human Rights Act, which enshrines the right to freedom of expression.
In fact the ECHR and the Human Rights Act embody the attitude of ‘free speech, but …’. As the leading UK textbook on civil liberties and human rights says, the legal conventions ‘recognise that the exercise of these freedoms comes with special responsibilities, and so may be subject to restriction for specified purposes’.7 As soon as you attach legal responsibilities, never mind special ones, a freedom ceases to be a right.
That problem is spelt out by a glance down the list of the ‘specified purposes’ for which the ECHR, supposed stone tablet of European liberalism, concedes that freedom of expression can legitimately be restricted:
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.8
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. 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. As that same authoritative legal textbook observes with lawyerly understatement, this ‘still leaves the right to free speech somewhat exposed’.9 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.
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