‘Free speech’ is more than a slogan

Those who suggest limits on free speech are in effect opposing rational debate - and painting a dim picture of humanity.

Dolan Cummings

Topics Politics

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Freedom of speech is not a celebrated cause in the West today. While all right-thinking people are concerned about state censorship in China, or the imprisoning of poets by authoritarian regimes across the world, it seems self-indulgent or even hysterical to complain about ‘censorship’ in the liberal West. Consequently, the demand for free speech is often seen as pedantic, eccentric even, the preserve of right-wing social inadequates who like to go on about ‘political correctness gone mad’ or occasionally left-wing social inadequates who like to announce that democracy is being overthrown by neocon conspirators.

It is true that there are relatively few legal restraints on free speech in the West. However, with new and proposed restrictions associated with the ‘war on terror’, formal and informal injunctions against ‘offensive’ speech, and the continuing travesty that is libel law, especially in the UK, there is little reason for complacency. Nonetheless, freedom of speech is not an issue discussed with any urgency; all too readily it is trumped by other priorities. Indeed, more striking than any of the formal restrictions on free speech is the cultural climate, in which none of these restrictions provokes more than a half-hearted whimper of dissent. Free speech is simply not held to be especially important when weighed against security or the protection of minorities from abuse, for example. For the most part, then, it is enjoyed but not valued. It is not understood as a hard-won freedom at all, but taken for granted from day to day. Bizarrely, most of us, most of the time, have free speech in reality, but not in principle, in practice but not in theory.

The justification for this diminishment of free speech is far from clear, however. While detractors often present free speech as an ‘airy fairy’, abstract ideal that must be compromised in the face of more complicated realities, in truth it is more often the critique of free speech that is hopelessly abstract. There are no really good arguments against free speech in principle, because to argue against free speech is to argue against reason itself, to put something beyond debate. Instead, censorship is justified with reference to hypothetical and often irrational suppositions about how people might respond to things, and a general anxiety about unrestrained expression.

The weakness of the case against free speech means debates too often go from outlandish examples proving that ‘there is no such thing as absolute free speech’ to arguments for restricting speech at the drop of a hat. In this context, those of us who want to challenge particular instances of censorship – whether it is the suppression of dissent in authoritarian regimes overseas, or the UK law against ‘incitement to religious hatred’ – must decide whether it is worth holding to a general principle of free speech such as that argued for by JS Mill, in his seminal On Liberty, or whether it is better to argue on a case-by-case basis. Should we accept that there are indeed limits to free speech, and make the debate about where they should be placed? If not, what is the case for free speech as a principle, and how does it differ today, if at all, from that made by Mill in 1859?

That fire in the crowded theatre

The most famous example of limits to free speech, coined by the American Supreme Court judge Justice Oliver Wendell Holmes, Jr in 1919, is that the right to free speech does not include the right falsely to shout ‘fire’ in a crowded theatre. Even as far back as 1919, the method described above, jumping from outlandish example to immediate censorship, was being employed. Holmes was actually upholding the conviction of the socialist Charles Schenk, who was imprisoned under the draconian Espionage Act, for distributing leaflets opposing the draft during World War One; the theatre example was simply meant to show that there were limits in principle to the First Amendment protection of speech. Later US supreme court rulings set stricter criteria for the curtailment of free speech than that used in the Schenk case, which in any case had nothing to do with fires in theatres.

Despite this, and despite the subsequent displacement of theatre as the primary form of mass entertainment, the example of shouting ‘fire’ in a crowded theatre remains popular to the point of serious irritation to this day. Since irritability can be a sign of intellectual vulnerability, however, perhaps we should indulge the example for a moment.

Since Holmes’ qualification that ‘fire’ is shouted falsely is usually missing from repetitions of the example, the first thing to establish is whether our hypothetical theatre is actually on fire – if so, shouting ‘fire’ seems a pretty good idea. But is it? In addition to the inconvenience of a false alarm, the more serious outcome assumed in the example is that the theatre audience will stampede dangerously, which presumably would be no less true in the event of an actual fire. In that case, are people who think shouting ‘fire’ such a heinous crime also opposed to fire alarms?

Back in the real world, where most of us emerge unscathed from fire drills, no sensible person would suggest there is a right to shout ‘fire’ in a crowded theatre that is not in fact on fire any more than a right falsely to set off the fire alarm. If nothing else it is a public nuisance. But this is not to accept limits to free speech in any meaningful way – it did not justify the imprisonment of anti-draft agitators in World War One, and it does not justify any of the various bans in whose service it is mobilised today. In practice, the example is often taken to be analogous with ‘stoking up race hate’. If we accept that the former can reasonably be penalised, then we should be equally happy with bans on ‘incendiary’ speech and ‘incitement’ of various kinds. But this confuses two fundamentally different kinds of ‘speech’.

In the ‘fire’ case, people have no opportunity to weigh up or consider what is being said; a fire alarm demands immediate action to avoid the danger. In the case of political speeches or religious sermons, even of the most fiery variety, the audience listens and absorbs what is being said before deciding what if anything to do about it. Even racist thugs at a proverbial neo-Nazi rally are not attack dogs, and however unsavoury the speaker might be, it is the audience and not the speaker who must be held responsible for what they do after the rally, even if we despise the speaker for his part in any hypothetical violence.

Ordering an actual attack dog to maul somebody is a different matter, and clearly nothing to do with free speech. Similarly, ordering a robot to commit murder, or – let’s really go to town here – speaking into a voice-operated gun, are examples in which ‘speech’ very directly causes something to happen. But these are easy examples to dismiss, because they have nothing to do with real speech, free or otherwise. To have any meaning as speech, words have to be directed at other human beings; speech is communication, and implies a listener capable of understanding and consciously responding to what is being communicated.

There are cases in which even human beings are not in a position to consider speech, but instead react automatically. A theatre audience responding to a fire alarm is one example, a pilot taking instructions from an air traffic controller is another, or a blind person being guided along a dangerous cliff path, say. In these cases the speakers can reasonably be held to account for the consequences of what they say; fined for causing a public nuisance, sacked for incompetence, even convicted of murder if that was the intention, without threatening the principle of free speech. Their speech was action; like the killer with our voice-operated gun, they ‘as good as pulled the trigger’. But this is a world away from making political speeches, even ‘inflammatory’ ones, or producing controversial art, or even simply being childishly offensive. Unless there is an exceptional constraint on listeners as in the cases above, they are free to respond to these things however they want, and they themselves are responsible for that response. ‘Incitement’ is thus a very dubious concept.

There are grey areas: giving instructions to a mentally disturbed person, perhaps, or giving the address of a suspect to the family of a recently murdered child. In most cases in the real world, the distinction between speech that compels the listener to act, and speech that is open to consideration, is pretty black and white. And none of the current free speech controversies concern audiences who are constrained to respond in particular ways. Nobody seeing a cartoon of the prophet Mohammed is compelled either to take violently against Muslims or violently to take offence as a Muslim. Nobody hearing anti-gay ragga lyrics or reading an interview with a racist university lecturer is compelled to take on these views and act accordingly. We are all exposed to such things and we decide for ourselves how to respond.

Ironically, the fire-obsessed Oliver Wendell Holmes himself dissented in 1925 from the conviction of a Communist pamphleteer Benjamin Gitlow, on the grounds that:

‘Every idea is an incitement. It offers itself for belief, and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration.’ (1)

Some argue against this that there are particular audiences that are incapable of thinking rationally, whose reason is especially flammable. But this is a very different and less persuasive argument. The convincing examples of constraint are the ones in which any reasonable person would head for the exit, move the plane to a particular altitude, or step wherever they were told. The spurious ones involve disdainful judgements about the people likely to be hearing particular messages: racist mobs, religious fanatics and so on, or absurdly misanthropic assumptions about human beings in general.

Tellingly, however, such prejudices about dangerous ‘others’ rarely lie behind actual censorship and censoriousness today. The fire-in-a-crowded-theatre argument is about more than suggesting people are easily incited to panic or form violent mobs, or that particular groups pose a danger to society. The point is more generally to discredit the idea of ‘absolute free speech’, the better to argue for restrictions of various kinds, often having nothing at all to do with incitement. Having disposed of ‘absolute free speech’ opponents of free speech go on to argue for comprehensive censorship, speech codes, and myriad regulations about what people can and can’t say. In the words of the American writer Stanley Fish’s famous essay title, ‘There’s No Such Thing as Free Speech, and It’s a Good Thing Too’.

Free speech and other values

The most common case made for censorship today is not that unregulated speech might incite violence or disorder – though this remains the ostensible rationale behind much recent British legislation limiting freedom of speech – but that it is likely to cause offence. While the moral weight behind the government’s bid to outlaw incitement to religious hatred, for example, comes from the idea that ‘religious hate speech’ might provoke violence against Muslims, there is little, if any, evidence for this – in substance the law is about protecting the feelings of those who are upset by perceived insults to their religion.

The notorious Danish Mohammed cartoons published across Europe earlier this year did not incite anti-Muslim mobs, but only outrage among Muslims themselves, just as some Sikhs in Birmingham were offended by the play Behtzi in December 2004. Following that case, Christian protests against the BBC’s decision to broadcast Jerry Springer: the Opera followed the same template, emphasising personal offence at the show’s depiction of Jesus, rather than the old-fashioned, quasi-political offence of blasphemy against the established religion. In all of these cases, it was suggested that, freedom of speech not being absolute, a line should be drawn at offending religious sensibilities.

It is generally taken for granted that ‘the line has to be drawn somewhere’. In his polemic against free speech, Stanley Fish presents this commonsense assumption in more theoretical terms, arguing that it is ‘originary exclusion’ that gives meaning to free speech (2). That is, free speech is defined in the first place by the exceptions to the rule. Fish cites the poet John Milton, who believed in free speech for everyone except Roman Catholics, and by implication other superstitious and impious types who would threaten the seventeenth century English Protestant ‘faith and manners’ on whose behalf he did champion free speech. Fish’s argument is not that Milton didn’t really believe in free speech, because he excluded Catholics, but that it would have rendered his particular case for free speech meaningless if he had extended it to Catholics, because what he really meant was free speech for people like him.

But it is disingenuous to ignore the substance of Milton’s argument for free speech on the grounds that, having discovered its true motive, and seen that Milton himself prized that motive more than free speech itself, we can now dismiss it as merely contingent, a rhetorical tactic. Milton’s fear of ‘Popery’ wasn’t just a personal peccadillo, after all. Nor was it born of some irrational religious prejudice. At that time in much of Europe, free speech was almost synonymous with the right to criticise the all-powerful Catholic church, which brutally suppressed dissent (in Milton’s words, ‘it extirpates all religious and civil supremacies’ (3)). Thus, for Milton, censoring Catholics in Protestant Britain was not about oppressing a minority, but upholding the liberty of all. If, for Milton, liberty was a means to a religious end, the lesson of history is that ultimately it was religious passion that served liberty. (Just as the long religious wars that followed the Reformation finally gave birth to the notion of religious toleration and a battle of ideas rather than arms.)

The lesson of Milton’s case is that freedom of speech sooner or later comes into conflict with other principles, often those that inspire us to talk about freedom in the first place. One response to this is to abandon free speech in favour of other priorities. Another is to recognise it as a special kind of freedom, one that must be tolerated even when it does come into conflict with more passionately held principles. This has to do with the nature of speech itself, as something that is subject to rational argument as discussed above. Free speech is the means by which all other principles, convictions and values can be rationally debated. As such, it takes on special status as an end in itself, to be honoured even when it is used in the service of particular ideas we oppose.

Accordingly, hostility to free speech reflects a disavowal of reasoned argument, a belief that certain principles or values must be protected from opposing ideas. For example, when Frank Ellis, a lecturer at Leeds University made racist comments to a student paper earlier this year, it was widely argued that this posed a threat to the university’s core values. The university secretary prepared the way for disciplinary action by explaining: ‘The University of Leeds is a diverse and multicultural community whose staff and students are proud to support our values, which include mutual respect, diversity and equal opportunity, and collegiality.’ (4)

Ellis was then suspended and eventually took early retirement. This was generally seen as a good result. As one student said to the Observer: ‘Knowing that he’s a lecturer and that he holds views that black people are inferior and that women can’t achieve the same as men, it’s disgusting and certainly not conducive to an academic environment.’ (5) Of course it could be argued an academic environment implies academic freedom, the right, responsibility even, to speak one’s mind and challenge conventional wisdom: hence free speech. Nonetheless, one can see what the student meant. For the most part there is an agreeable sense of shared values and common purpose in universities, within which students and lecturers alike find encouragement and support. While there are always intellectual disagreements and even rivalries, members of a university generally show mutual respect.

This liberal conviviality is undoubtedly threatened by unbridled free speech. Not only boringly racist views like those of Ellis, but, more importantly, original ideas of any kind, when passionately held and rigorously argued, can upset the delicate balance of a university community, making students and faculty alike uncomfortable. Whether or not one agrees with this model of the university, then, is it not reasonable that a university constituted on these grounds should limit speech in order to preserve that multicultural conviviality?

In fact, to the extent that any university limits freedom of speech, it diminishes its credibility as a university. Some institutions, such as religious ones, do have core values that are beyond rational debate. Such institutions routinely suppress freedom of speech in order to preserve their authority. Similarly, authoritarian political regimes resort to censorship in order to protect their ‘values’ from criticism. In institutions committed to reason, however, free speech is defined not by ‘exceptions to the rule’ as Stanley Fish would have it, but as places where those exceptions-to-the-rule do not apply. If there were not a censorious culture outside universities (with or without overt censorship), the ‘academic’ in ‘academic freedom’ would be redundant.

No doubt it would be a good thing if nobody ever talked about free speech because nobody ever threatened it: the term would be meaningless. Unfortunately, free speech is given an abundance of meaning by repeated attempts to stifle it. In censoring the expression of unsavoury opinions, a university is not dispensing with an accidental feature in the interests of its real purposes as a university; it is relinquishing a defining characteristic of any institution committed to the pursuit of knowledge. Without the freedom to think offensive thoughts, and to express them openly, a university cannot function as a university. The ‘diverse and multicultural community’ celebrated by the university secretary at Leeds becomes an empty shell, not distinguishing the university from any other institution.

Old-fashioned racism such as that professed by Ellis has long since been discredited intellectually, and had he tried to put forward his opinions in properly academic contexts, at departmental seminars or in scholarly journals, they would quickly have been dismissed, not as forbidden thoughts, but simply as intellectually untenable ones. More often than we acknowledge, the collective pursuit of truth works. This process is actually short-circuited by attempts to police what can and cannot be said in the university, whether or not it is said in an academic context.

It was the campaign against Ellis that drew wider attention to his racism, and in such a way that misrepresented the nature of intellectual authority. As one of Ellis’ Leeds University colleagues argued, ‘Yes, he has the right of freedom of speech to hold such views, but I strongly believe our university is not the platform from which he should promote them.’ (6) Instead of a place where ideas are debated, argued over and ultimately accepted or dismissed, the university is presented as a ‘platform’ that lends legitimacy to anyone lucky enough to find himself there. That Ellis’ racist ideas convinced nobody in the university – that the free exchange of ideas works – is not considered important. The fact that racism is intellectually untenable is presented as something that has to be artificially imposed on university life, rather than something that can be demonstrated again and again in the course of reasoned debate.

Worse than hounding someone out of his job for his views, then, this approach means obscuring and undermining the purpose of the university itself. Stifling free speech in keeping with prevailing ideas brings the university into line with the rest of society, rather than serving the distinct purpose of the university. And paradoxically, censorship within the university is justified with the suggestion that free speech belongs somewhere else. Ellis can have ‘free speech’ in the abstract, but not as long as he is associated with the university. In the one situation where free speech is upheld in principle, it is denied in reality.

The politics of free speech

Free speech is not only essential to the pursuit of knowledge. It is also essential to the practice of democracy. This is because the principle of free speech is a permanent challenge to the idea that some questions are beyond contention, and thus a permanent challenge to authority.

In the political sphere, free speech is a principle independent of what is being expressed. The caricature is that people only fall back on ‘free speech’ when they can’t win the argument; it is a rhetorical sleight, the last refuge of the bigot. No doubt it is true that those who invoke free speech often do so in defence of racist and other opinions that have long ago been discredited in open debate. One of the more bizarre characteristics of the free speech debate today is that it is often members of far-right organisations that have nothing but contempt for freedom, who pose as champions of free speech. But this says more about the intellectual cowardice of those who want to censor them than about the merits of free speech. True supporters of free speech uphold it even for those with whom they profoundly disagree. Free speech is not a mere rhetorical device, but a political principle in its own right.

Rather than saying, ‘you can’t ban that – it’s against free speech’, where the magic word ‘free speech’ is used to actually close down argument, one can make the case as JS Mill did that bans impoverish debate and demean our rationality. This is very different from having to argue the merits of each case in terms of the content of what is being expressed. It means that even while arguing vehemently against what is being expressed, we can nonetheless insist on people’s right to express it. In fact, it is only through open debate that an argument can truly be won.

This is not to suggest that all objectionable opinions are susceptible to rational debate. Some things are not worth arguing against – Holocaust denial, loopy conspiracy theories etc – in most contexts, it is enough to acknowledge what is being said to dismiss it. Unfortunately this has become a stock response to far more serious arguments that demand a proper response, from the defence of fast food to the rejection (from either side) of a ‘two-state solution’ for Israel-Palestine. Those who dissent against the respectable line on such issues are dismissed as cranks, and often have their motives questioned. The principle of free speech is a challenge to this unimaginative and conformist way of thinking as much as it is a challenge to old-fashioned authority. Genuinely free speech requires a climate in which people are allowed to think out loud, and not shouted down for saying the ‘wrong’ thing.

In September of this year, the pre-eminent British science institution the Royal Society issued something akin to a Papal Bull against dissenting views on climate change, seeking to establish the current scientific consensus as beyond dispute (7). Nobody is being officially censored or locked up, but the intervention serves to reinforce informal limits on what it is acceptable to say in public or even in respectable company – crucially, not by dismissing errant ideas through rational argument, but simply by mobilising the weight of majority opinion. ‘You can’t say that,’ is the prevailing sentiment.

Anyone who does voice the wrong opinions is assumed to be up to no good, or simply nuts – in any case, not to be listened to. In cases like this, it is not that particular ideas are considered offensive as such, so much as that they mark people out as less respectable. Rather than bans or legal prohibition of certain ideas, a subtle or not-so-subtle taboo grows up around such issues, demarcating the decent majority (or would-be majority) from unsavoury dissenters. As JS Mill himself noted, the effect of such informal taboos can be even more restrictive in practice than official censorship.

These kinds of restrictions on free speech today are rarely justified in terms of upholding authority or maintaining the social order in some old-fashioned way, however. It is not the consequences of free speech that are feared so much as freedom itself – unfettered, unbridled, unrestrained activity, ‘irresponsible’ opinions or arguments that jar with accepted orthodoxies. In this context, censoriousness is seen as a generally ‘civilising’ influence rather than a check on specific dangers. Often, it is not so much particular ideas that are seen as a threat, as wild or unchecked attitudes and feelings in general.

This is true even of laws against ‘incitement’, and even when national security is invoked. The much-debated British law against incitement to religious hatred, for example, is not a response to widespread attacks on Muslims or any other religious group. Rather, it expresses anxiety about embarrassing sentiments that might be held by some members of society, and a desire to impose a more respectable, well-mannered attitude to other people’s religions. Similarly, attempts to silence Muslim clerics who support terrorism, as if terrorism were a virus spread through sermons, are based not on evidence that such clerics have inspired terror attacks, but on an almost existential panic about ‘the threat within’. Rather than being a credible strategy to prevent future attacks, the UK ban on ‘glorifying’ terrorism is a desperate gesture. Willingness to sacrifice free speech is presented as a sign of hard-headed realism when in fact it is a pathetic substitute for an intellectual rebuttal of ‘radical Islamist’ ideas. In both cases, censorship is more symbolic than instrumental, but no less pernicious for that.

In this context, to argue for free speech is to make the case for free-thinking, reasoned debate and genuine tolerance. It is also to put forward a particular understanding of how society functions and the role of individual and collective agency, which is very different from the fearful and conservative worldview that gives birth to censorship and taboos. Instead, it is a worldview that allows for the possibility that things could be very different, and that human beings could be the authors of our own destinies. Rather than seeing change as a threat and seeking to contain discord, we can talk openly about the future, exchange ideas and argue over them rather than trying to suppress those that make us uncomfortable.

Freedom of speech is not merely a means to an end, then, or a rhetorical trick. It is an invitation to live a free life.

Dolan Cummings is co-convenor of the Battle of Ideas where debates include a keynote session on Reassessing Liberty, and a series of discussions on the Battle for the Law.

Read on:

spiked-issue: Free speech

(1) Quoted in Robert Hargreaves, The First Freedom: a History of Free Speech (2002)

(2) Stanley Fish, There’s No Such Thing As Free Speech, and It’s a Good Thing Too (1994)

(3) John Milton, Areopagitica (1644)

(4) Ellis faces disciplinary charges, Campusweb (Leeds University), 27 March 2006

(5) Campus storm over ‘racist’ don, Observer, 5 March 2006

(6) The Reporter (Leeds University), 27 March 2006

(7) Global warming: the chilling effect on free speech, by Brendan O’Neill

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

Topics Politics


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