Читать книгу Trigger Warning: Is the Fear of Being Offensive Killing Free Speech? - Mick Hume, Mick Hume - Страница 9

No subject (with the possible exception of football) has been talked about as much yet seriously discussed as little as free speech. Everybody pays lip service to the right to freedom of speech. Few of us appear to give much thought to what that means or why it matters. Sometimes it’s necessary to remind ourselves of the obvious and look again at what we take for granted.

After all, it’s funny how the simple little things can slip your mind. The first thing that seems to have been forgotten about free speech is that it’s supposed to be Free. The second thing that is often forgotten is that it’s simply Speech.

The third thing we often forget is that, when you put those two words together, you have the most important expression in the English language. Free speech is the single most powerful factor in creating and sustaining a civilised society. Without the advance of free speech, the development of life as we know it in the West is unlikely to have been possible over the past 500 years.

In short, without the willingness of some to insist on their right to question everything and to speak what they believed to be true, we might still be living on a flat Earth at the centre of the known Universe, where women were denied the vote but granted the right to be burnt as witches.

To begin with the dreaded f-word. It often appears to have slipped our Anglo-American society’s mind that free speech is supposed to be Free. That’s free as in ‘free as a bird’, to soar as high as it can and swoop as low as it chooses. Not as in ‘free-range chicken’, at liberty only to scratch in the dirt within a fenced-in pen and en route to the chopping block.

Free means speech should not be shackled by official censorship imposed by governments, police, courts or any other state-licensed pecknose or prodstaff. Nor should it be stymied by unofficial censorship exercised through university speech codes and ‘safe spaces’, twitterstorming mobs of online crusaders against offensiveness, or Islamist zealots gunning for blasphemy. And nor should it be sacrificed by the spineless self-censorship of intellectual invertebrates.

If it is to mean anything, free speech has to live up to its name. This is the hardest thing for many who claim to endorse the principle to remember in practice. It means that what others say or write need not conform to what you, I, or anybody else might prefer.

Here is the terrible truth about free speech. Anybody can choose to write, blog, tweet, chant, preach, phone a radio programme or shout at a television set. Not all of them will have the purity of soul of Jesus Christ or Joan Rivers, the wisdom of Socrates or Simon Cowell, or the good manners of Prince Harry or Piers Morgan. That’s tough. They still get the same access to free speech as the rest of us, whether we like it or not.

Defending the unfettered Free in free speech is not a question of endorsing whatever objectionable or idiotic things might be written or said. Nobody had to find Charlie Hebdo’s cartoons insightful or hilarious in order to stand by its right to publish them. Nor is it a question of being soft and suffering somebody else’s nonsense in silence. Free speech means you are also free to talk back as you see fit.

The Free in free speech does mean recognising that free speech is for fools, fanatics and the other fellow too. Like all true liberties, free speech is an indivisible and universal right. We defend it for all or not at all.

Remembering to put the Free in free speech makes clear why we should oppose attempts to outlaw or curtail certain categories of speech. Freedom is, unfortunately, indivisible. You cannot have half-freedom, part-time freedom or fat-free freedom. You cannot abolish slavery but only for white people or celebrities. Similarly you cannot declare your support for free speech, but only defend those parts of it that you like or that meet your preferred set of standards, however high-minded those preferences might appear.

In all the talk about free speech today, how often do you hear free speech spoken of as a universal and non-negotiable right? Instead the focus seems always to be on the buts, the exceptions, the limits to freedom. Everybody in public life might insist that they support free speech, but scratch the surface and it becomes clear that what many support is not so much free speech as speech on parole.

They want speech that is released from custody only on licence with a promise of good behaviour, preferably wearing a security ankle bracelet to stop it straying from the straight and narrow. Speech that is free to toe the line, stick to the script and do what it is told. The reinterpretation of freedom to mean liberty-on-licence is a con that the free-speech fraudsters should not be allowed to get away with.

Once you forget the meaning of ‘freedom’ and start cherry-picking which people or what type of speech might deserve it, free speech ceases to be a right. Instead it becomes a privilege, to be extended or withheld to the well- or the not so well-behaved as those in authority see fit. This is the message of all those fashionable sermons about how ‘rights come with responsibilities’. That is just another way of saying that it is not a right at all, but a selective reward for good behaviour. Rights don’t come with buts or provisos.

Once you make free speech a privilege and not a right, who are you going to trust to make the decision about where to draw that line through free speech? Government ministers? High court judges? Mary Berry and Sharon Osbourne?

This problem is even more acute now, when everything is judged by the subjective standards of ‘offence’ and things can be censored or banned not for threatening public order but for hurting somebody’s feelings and making them feel ‘uncomfortable’.

It is important to remember that free speech in the West was never an act of largesse doled out by governments. From the Magna Carta 800 years ago to today, any liberties that are worth the parchment they are written on have been hard-won in a struggle to wrest them from our rulers. Once won, those liberties do not come with any moral commandments. Nobody has to pass through the eye of an ethical needle to qualify for the right to free speech. There should be no official test to pass or licence to obtain before you can express an opinion. Liberties do not come with strings attached, any more than freedom can be exercised in leg-irons.

It is to be dearly wished that people exercise their rights responsibly and take responsibility for what they say. We might like to think that taking responsibility would always involve saying what you mean and meaning what you say; expressing the truth as you understand it as clearly as you are able, and then standing by it for all that you are worth. But wishing that could be true is no excuse for trampling on the speech rights of others in the name of what you imagine their responsibilities should be.

We should remember that the Free in free speech is not only about the freedom to speak and write as you see fit. It is also about the freedom of the rest of us to hear and read everything that we choose, and to judge for ourselves what is right. The flipside of freedom of speech is the freedom to listen (or not) and to choose.

By restricting the free-speech rights of those you detest, you weaken your own and everybody else’s freedom to listen and to argue, to test the truth and judge for ourselves.

As Thomas Paine, the English radical who became a key figure in both the American and the French revolutions of the eighteenth century, wrote in the introduction to his classic The Age of Reason (a critique of religion considered so offensive that it was subject to serial prosecutions by the British government): ‘He who denies to another this right, makes a slave of himself to his present opinion, because he precludes himself the right of changing it.’1 It is not only those directly denied their freedom who are ‘enslaved’ by selectively chaining some forms of speech.

We are under no obligation to take any notice of anybody’s words; the right to free speech never entails a ‘right’ to be taken seriously. But nor does the speaker have any obligation to restrict what they say to what we want to hear. To mean something worthwhile, freedom must be first and foremost for the other person’s point of view. George Orwell put in perfectly in his 1945 essay ‘The Freedom of the Press’ (originally written as a preface to his novel Animal Farm, though ironically the publisher refused to include it): ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’2

As part of forgetting to put the Free in free speech, we also appear to have forgotten the meaning of tolerance. Today tolerance is talked about in two related ways: either it means allowing the expression of views without judging or criticising them, or it is used as the excuse for closing down views which are too offensive, as in ‘we will not tolerate intolerance’. Neither has much to do with true tolerance.

Intolerance is always the enemy of free-thinking. But tolerance and the right to free speech does not mean a free ride. Tolerance is not about allowing anybody to rant away, offend and insult without challenge because ‘everybody’s entitled to their opinion’. True tolerance means allowing others to express their opinions, however disagreeable – and then being free yourself to tell them what you think of it, just as they are free to repay the compliment to you. In this, I am always with the great Englishman of letters Dr Samuel Johnson, who declared that ‘Every man has the right to utter what he thinks truth – and every other man has the right to knock him down for it.’3 Figuratively speaking, at the very least.

The second thing we have forgotten about free speech is that it is Speech. It is simply words. Words can be powerful tools, but there are no magic words – not even Abracadabra – that in themselves can change reality. Words are not deeds. It follows that offensive speech should not be policed as if it were a criminal offence.

It is true that ‘words can be weapons’ in a battle of ideas, or even just in a slanging match. But however sharp or pointed they might be, words cannot be knives. However blunt words are, they are not baseball bats. No matter how loaded they are or how fast you fire them off, words are not guns.

Yet all too often today we see words treated as if they were physical weapons. People in the UK are imprisoned for tweeting insults, as if they had handed out a bodily beating. Outraged online mobs pursue ‘rape deniers’ or other speech deviants across social media much as the London mob pursued the misogynist murderer Bill Sykes through the Dickensian city. Politicians and public figures in the US or UK are forced to apologise for having caused unintentional offence with some words, as if they had unintentionally caused a war (which is something they would never apologise for, of course).

Words can hurt but they are not physical weapons. And an argument or opinion, however aggressive or offensive it might seem, is not a physical assault. There are and should be laws against assault and threats of violence. There often are but should not be laws or rules against words used to express opinions, however violently one might disagree with them. The right response to violent assault is to end it, as forcibly as necessary, and possibly to lock up the perpetrator. The answer to bad words is not to end speech or lock up the speaker. It is more speech – to resist or simply to rubbish the words objected to.

But should all speech really be free? Is it really possible to draw such a firm distinction between offensive words and criminal offences? The answer is yes, once we are clear what we mean by free speech as encompassing all forms of expression from ideas and opinions, through invective and insults, to jokes or mindless jabber.

There are other types of speech that the most liberal-minded among us have long considered to be indefensible: direct threats of violence or blackmail, for example, or malicious defamation of individuals, or illegal obscenity such as child pornography. Even the US First Amendment has not protected these forms of words.

But these are not really arguments against free speech. In properly distinguishing between words and deeds, we need to make a distinction between words that are simply speech – the expression of an idea – and words that instead become part of an action – the execution of a deed. For instance there is a big difference between expressing a general violent hatred of the government or minority groups, and deliberately inciting, provoking or organising specific acts of violence against particular institutions, individuals or groups. The first category is speech, to be tolerated, like it or not (but challenged as you see fit). The second is something other than free expression, and we do not have to put up with it.

Those who support free speech have long sought to distinguish words from deeds and to have legal exceptions to the principle overturned or at least defined as narrowly as possible.

The trouble is, however, that in wider discussion in the Anglo-American world today, things are moving in the opposite direction. The tendency now in politics, the media and academia seems always to try to broaden, rather than narrow, the grounds on which words should arguably be kicked out from under the free-speech umbrella.

The insistence that ‘This is not a free-speech issue’ has become a staple expression of the free-speech fraudsters, as a way of maintaining their alleged support for the principle whilst shafting it in practice. Once, the phrase ‘This is not a free-speech issue’ might justifiably be heard only in response to something as serious as a direct threat to kill – or just something as trivial as a request to make less noise in a bar or on the bus. Now we hear it used promiscuously in response to all manner of questions that obviously should be ‘free-speech issues’, from demands for new laws against nasty internet ‘trolls’ to bans imposed on controversial political speakers or comedians on campus. It can seem as if some would like to turn the exception to free speech into the rule.

But what about incitement? Inciting somebody to commit an offence is a crime. Offering an offensive opinion or inflammatory argument should not be. In a sense all arguments are ‘inciting’ – as in urging or provoking – somebody to do something, whether that means to change their opinion or the brand of coffee they drink. Those on the receiving end are still normally free to decide whether to do it. We should be very wary of criminalising speech so long as all that is being chucked about are words.

And what about offensive and hateful speech? These issues are addressed later. To begin with let us simply remember that in Western societies it is usually only those consensus-busting opinions branded offensive or unpalatable that need defending on the grounds of free speech. Nobody ever tries to ban speech for being too mundane. This is not a question of celebrating extremism or obnoxiousness. It is simply a matter of recognising that, when it comes to upholding the principle of free speech in practice, if we look after those opinions branded extreme, then the mainstream will look after itself.

Free speech is more important than hurt feelings. As recently as 1999 David Baugh, a leading black American civil liberties lawyer, defended a Ku Klux Klan leader who had been charged after a cross-burning, gun-toting rally. The attorney assured the jury that he was well aware that his client and the KKK hated black men like him. But that, Baugh argued, did not alter the racist’s free-speech rights: ‘In America, we have the right to hate. And we have the right to discuss it.’4

Baugh lost that cross-burning case on a point of law. Today he might be widely considered to have lost his mind. Yet he was right. In a civilised society, if we are talking about thoughts and words – however vitriolic – rather than violent deeds, all must be free to hate what or who they like, whether that means Muslims, Christians, bankers or Bono. To seek to ban the right to hate should be seen as no less an outrageous interference in the freedom to think for ourselves than a tyrant banning the right to love. The best way to counter hatreds and ideas we despise is not to try to bury them alive, but to drag them out into the light of day and debate them to the bitter end.

There is a good reason why it’s important to remember the meaning of both Free and Speech, however uncomfortable they might make us. Because the third thing we tend to forget about free speech is that it is the most important expression in the English language.

To borrow a phrase from the techies, free speech might be called the ‘killer app’ of civilisation, the core value on which the success of the whole system depends.

Free speech is the voice of the morally autonomous individual, nobody’s slave or puppet, who is free to make his or her own choices. It is the spirit of the age of modernity on full volume, first captured more than 350 years ago by the likes of Spinoza, the great Dutchman of the Enlightenment, who challenged the political and religious intolerance that dominated the old Europe and set the standard for a new world by declaring that ‘In a free state, every man may think what he likes and say what he thinks.’5

Free speech is not just about individual self-expression. It is the collective tool which humanity uses to develop its knowledge and understanding, to debate and decide on the truth of any scientific or cultural issue. Free speech is also the means by which we can bring democracy to life and fight over the future of society, through political engagement and the battle of ideas.

Free speech is not just a nice-sounding but impracticable idea, like ‘free love’. It has been an instrumental tool in the advance of humanity from the caves to something approaching civilisation. It is through the exercise of free speech and open debate that individuals and societies have been able to gain an understanding of where they want to go and why. The open expression of ideas and criticism has often proved the catalyst to the blossoming of creativity.

That’s why history often suggests that the freer speech a society has allowed, the more likely it is to have a climate where culture and science could flourish. Even before the modern age of Enlightenment, those past civilisations that we identify with an early flowering of the arts, science and philosophy, from Ancient Greece to the Golden Age 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 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.’10

Free speech may not have died in the hearts of the men and women of the West, but it is ailing badly. 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 from the university campus to the internet we are living with a bland, ‘safe’ environment in which anodyne becomes the new normal.

To turn things around means dealing with new opponents of free speech today and confronting 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’.11 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’.

No doubt 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.