The first question that anyone today might ask is ‘Why would any politician in their right mind voluntarily enter into the minefield that is the Free Speech debate’. It is a legitimate question.
My immediate motivation came from a senior political colleague who told me that I should do so because “it is the next real battle that the Right has to win”. I disagree. I believe it is a battle that every democrat, irrespective of political viewpoint, needs to win.
Depending on your analogy, Free Speech is either a bellwether that tells us about a society’s direction of travel in relation to wider human rights, or a canary in a coal mine that warns us about impending disaster.
In the short time available today it will only be possible to scratch the very surface of the debate but I hope it will encourage more political figures to enter this most vital of political arenas, even if some regard it as today’s equivalent of the Circus Maximus.
For me, Free Speech is a basic human right, essential for the functioning of democracy and necessary to allow differing views to be contrasted and evaluated in a pluralistic society.
It follows that any restrictions should be exceptional and determined by rigorous tests of necessity and a sense of proportion.
We currently find ourselves churned in the wake of one of the greatest periods of technological revolution in human history.
It is unsurprising that we find ourselves socially and intellectually destabilised, unsure when our equilibrium will be re-established.
When the printing press brought a similar upheaval in the mid-1400s, it was the producers who enjoyed the rapidly expanding freedom that came with the Technical Revolution.
Today it is consumers who have instantly morphed into producers themselves, able to produce copy without any of the restrictions of form, content, knowledge or sensitivity that we have come to expect from our traditional media.
In this period of turbulence, we must constantly question whether we are exaggerating the scale of our problems and whether this is a symptom of our own disorientation in a period of unprecedented change on our way to a new steady state.
Perhaps the next generation, those who will have grown up in an era where the technological advance is not the revolution, but the status quo, it will be more at ease with the challenges it has brought us.
On 10 December 1948, following the defeat of Fascism in World War II, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.
It stated that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
It was the latest stop on a timeline that extended from Socrates to Magna Carta to the Declaration of the Rights of Man and the First Amendment of the US Bill of Rights.
The UN declaration was further reinforced by the International Covenant on Civil and Political Rights (ICCPR) which was adopted by the UN in 1966 and came into force from 23 March 1976. It states that:
- everyone shall have the right to hold opinions without interference.
- everyone shall have the right to freedom of expression – this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or any other media of his choice AND
- the exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for the respect of the rights or reputations of others and (b) for the protection of national security or public order or public health or morals.
Why does all this matter? It matters because we now have a clear statement in international law that the freedom of expression of ideas and opinions is fundamental to both the individual and to wider society.
It contributes to the full development of each individual and is a necessary precondition to the enjoyment of a wider set of rights from freedom of assembly and association to freedom of the press.
An effective democratic society depends on voters developing informed opinions from free and open debate between candidates and exercising their choices unhindered at the ballot box.
Free Speech is therefore a key tool in the ability to execute change and crucial for both social and economic development.
Freedom of expression, especially a free press, is a means of underpinning other human rights through the ability to expose abuses and persecution.
As Richard Sambrook, Professor of Journalism and Director of the Centre for Journalism at Cardiff University put it “intellectual restriction is as serious as physical incarceration. Freedom to think and to speak is a basic human right. Anyone seeking to restrict it only does so in the name of seeking further power over individuals against their will. So, Free Speech is an indicator of other freedoms”.
Free Speech is a means of ensuring that marginalised minority voices are heard, voices that might otherwise be drowned out.
It is also a crucial bulwark against abuses of power providing criticism of those who would use authority to restrict other freedoms.
Of course, as confirmed in the ICCPR there have always been accepted restrictions on absolute Free Speech including libel and slander, obscene material such as child pornography, the abuse of copyrighted material and incitement to commit crime.
These are also key exemptions in the American First Amendment, an item often misunderstood and misused in our contemporary debate.
Today, I would like to focus on three broad areas.
The first is how, in the age of the Internet and social media, we balance the right to free expression with the understanding that words can cause actual harm to others.
The second is the current trend among some sections of society to extend their dislike of an expressed view on a particular topic, to a demand that the view should not be heard at all, including through bullying and intimidation.
The third is the, often confused, attempt by governments to restrict our freedom in the name of tolerance.
Often, we may find the same people demanding tighter legislation to close down views and behaviour of which they disapprove, while simultaneously accusing politicians of restricting Free Speech if their own beliefs are criticised. This cognitive dissonance, as it is referred to in psychology, is yet another obstacle that we have to navigate in our considerations.
Let me deal briefly with each of these issues in turn.
The Technological Revolution that has brought the rise of the Internet and the proliferation of social media has brought unprecedented opportunities but new, and often unforeseen, problems.
The American Pew Research Centre has studied, and reported, on online harassment for a number of years.
They have used six distinct parameters of behaviour to objectively measure the problem.
They are: Offensive name-calling; Purposeful embarrassment; Stalking; Physical threats; Harassment over a sustained period of time and Sexual harassment.
The first two elements are categorised as ‘less’ severe forms of harassment while the latter four are categorised as ‘more’ severe.
Evidence suggests that online harassment has intensified since 2017 with a growing number of Americans reporting the more severe forms of harassment and an increasing tendency for politics to play a part in the motive for such actions.
This was echoed in the 2019 UK general election which saw rising online hostility towards politicians.
The consequence was that a record number of politicians gave the levels of online abuse they had suffered as a reason for not standing for re-election - a clear example of the danger to democracy.
In November 2019 in the UK, The Alan Turing Institute published a report which set out to quantify how much online abuse actually exists here.
They studied five sources of evidence:
Government statistics on criminal online abuse; reports by civil society charities; the transparency reports of the major social media platforms; measurement studies by academics and survey data, including previously unreleased analyses from the 2019 Oxford Internet Survey.
While they concluded that the prevalence of illegal online abuse in the UK is low, there were worrying patterns emerging across demographics.
Black people and those of other ethnicities were more likely to be exposed to online abuse than White and Asian people.
Younger people were more likely to be targeted by, and exposed to, online abuse though this is likely to be, at least partly, from their greater use of the Internet and social media.
Interestingly, the study did not identify a substantial difference according to gender though this has been more apparent in other studies.
A disturbing indication of the harm caused by online abuse was highlighted by a 2018 Swansea University study which showed that self-harm and suicidal behaviour was twice as likely among children and young people under 25 who are victims of Cyber Bullying.
Interestingly, and just as disturbing, was evidence that the perpetrators themselves were also at higher risk of suicidal thoughts and behaviour.
There is no doubt in my mind that a serious problem exists. The issue is how best to address it.
Perhaps inevitably there has been a demand for new legislation to deal with the issue and perhaps that is a path we will take, but before we do, we must think very carefully about the possibility of unintended consequences.
There is no doubt that words can be harmful, but this is conceptually different from ideas of hurt or offence (where harm is generally taken as an injury which is inflicted on purpose).
This is one of the most difficult and sensitive areas of the debate around online regulation and we will have to carefully balance any concept of harm to the individual against harm that might be inflicted on the well-being of society in general by any restrictions on liberty in our response.
Again, balance, proportionality and objectivity will be key.
Part of our approach should include the concept of digital self-care. This includes for example, controlling online time and sites visited, limiting push notifications, managing apps and resisting the need to record every step, every person met and every bite taken, in order to improve resilience. There must also be a role for parents and teachers in education about bullying and, if necessary, intervention including helping young people to intervene on behalf of those being victimised online.
Teachers would not allow children to be openly bullied in the playground and parents would not allow children to be bullied outside the front door so the same concept must apply inside – although we all understand the difficulties in dealing with often jealously guarded privacy.
Another difficulty in the online era is that of libel and defamation. While a newspaper will be able to make a conscious decision about what appears in print, an online platform has less control.
We cannot allow a disparity to emerge between the two which would see our newspapers operating under much stricter laws than their digital counterparts.
Of course, we could end the concept of libel entirely and move to a completely laissez-faire society whose consequences I do not care to imagine.
One solution, which I find attractive, is that where a judge rules that a libel would have been committed in print, an order could be given to a digital platform to release the identity of the individual concerned rather than ruling against the digital platform itself thus maintaining the link between actions and consequences for an individual.
Through all this debate we must keep central in our minds the fact that, in a free society, there is no such thing as a right not to be offended.
The second problem I would like to consider amounts to nothing less than a growing form of censorship. It is associated with what many describe as ‘the woke movement’ but I believe it is more deeply rooted in a loss of objectivity that has become increasingly prevalent in recent times.
The view taken is as follows.
It says “I have a right to say what I believe because I believe it to be right. You are not allowed to disagree with me because my view is right, and you will offend me if you criticise it”.
It goes further and says, “You, on the other hand, are not allowed to express your view simply because you believe it to be right and, if you do, I should be allowed to criticise it even if it offends you”.
It is a concept of freedom of speech that belongs in a parallel universe. If unchecked, such a viewpoint will poison the body politic and choke the essential tolerance of a civilised society.
It will lead to a disintegration where majority intolerance and minority oppression become the norm. It represents a self-righteousness that has lost any concept of self-awareness and social context and provides a very real danger of igniting a counter reaction leading to majority intolerance and minority oppression.
We saw a brutal example of this tendency in the sort of treatment handed out to JK Rowling following her Twitter remarks on transgender issues.
While assessments of the volume of the response must be kept within the context of the world of the Twitter-sphere, the vicious, extremely aggressive and often threatening language has a clear message.
It is that the writer herself is not entitled to post her views because of her background, or as one critic put it because “her cis-identity and its majoritarian privileges are overwhelming”.
The sinister part was that it was not a counter-attack or riposte to the views she had posted but an attempt to delegitimise her and thus her intervention.
All of us, from whatever part of the political spectrum, must unite in making it abundantly clear that she is, absolutely, entitled to her views and to express them.
Otherwise, what are these declarations in international law on the right to free expression actually worth? Yet I think we must go further. We must all be willing to defend, in a practical way, those who we can see being intimidated by the online bullies.
Keeping our heads below the parapet can only result in more victims, the trampling of our values and one person fewer in the defensive line between ourselves and the mob.
I must confess that I still feel guilty about not defending Jo Brand, with whom I have hugely different political views, when she was subjected to attack over a joke and I wish I had spoken out in defence of Davina McCall when she made perfectly reasonable comments about not stigmatising all men as being potentially threatening. We must all accept responsibility for where we are today and how we should respond in future.
Another much discussed form of censorship is the recent rise of no-platforming in, of all places, our universities – the places where robust debate should reign supreme and where prejudice should be put to the sword of reason.
Those who practice ‘no platforming’ are not just delivering censorship and intolerance but exhibiting intellectual cowardice.
As Professor Chris Frost, the former head of journalism at Liverpool John Moores University put it “those who fear taking on opposing ideas and seek to silence or no- platform should consider that it is their ideas that may be wrong. If someone’s views or policies are that appalling, they need to be challenged in public for fear they will, as a prejudice, capture support for lack of challenge”.
He spoke of the Fascism of those who sought to restrict the expression of views they did not like.
He said “Whether it is through violence or the abuse of power such as no-platform we should always fear those who seek to close down debate and impose their view, right or wrong. They are the tyrants”.
The rise of intolerance, the ‘cancel culture’ and the placing of ‘emotional safety’ over intellectual rigour and Free Speech, particularly in our universities, is a terrible indictment in a country that was at the heart of the global enlightenment and brings shame to many parts of our academia.
It is a pity that government measures have had to be threatened to restore our most basic values to British academic life. They must put their house in order as a matter of urgency.
Our third type of problem, the typically botched legislative efforts which restrict liberty in the name of tolerance, is typified by the recent Scottish Government’s Hate Speech Bill.
This piece of legislation, which was ostensibly about tidying up the law in this area, has managed to pull off the political trick of uniting the Catholic Church and the National Secular Society who warned that offences created by the Bill will have a "chilling effect" on freedom of expression.
Scots could now be subject to prosecution if their speech should be deemed "threatening or abusive" and intended to stir up hatred.
Far from tidying up the law, the Scottish Government has actually extended the law’s reach.
Much of the old legislation was drawn from the Public Order Act 1986.
But that law included an exemption for words and actions inside a “dwelling”—someone’s home—that is not witnessed in public.
This exemption has now disappeared leaving Scotland, which led the Enlightenment and the quest for intellectual freedom, more restricted than other parts of the UK when it comes to freedom of speech.
Attempts to introduce a “dwelling defence”, to prevent what has been described as the risk of prosecution over the dinner table, was rejected by the Scottish government claiming that such a defence would draw an “entirely artificial distinction” that would allow threatening and abusive bigotry simply because it was inside the home.
A clear sign of the difficulties involved in such legislation, and a likely indicator of problems to come, came with the rash of last-minute amendments with which the Scottish government tried to diminish the damage being done and the howl of public criticism.
They announced that any offence should require “intent” and that courts must have particular regard to the right to freedom of expression, including the right to offend, shock or disturb though the changes merely brought them into line with Article 10 of the European Convention on Human Rights.
It is interesting to imagine how the Scottish Police force, tackling the highest drug death rates in Europe, will feel about the potential tsunami of complaints they will get from those who perceive offence from their neighbours and can now take legal action on the grounds of “stirring up hatred”.
Of course, in the case of the Scottish government this is not an excursion without precedent.
In 2012, they passed the Offensive Behaviour at Football and Threatening Communications Act designed primarily to deal with “groups with a perceived religious affiliation”.
Failing to achieve its original purpose, it was repealed in March 2018.
So, how should we deal with what some describe as ‘the crisis of Free Speech’.
Let me make just five suggestions.
First, we need to maintain a sense of perspective. We are still in the early stages of the technological revolution in communications and it is likely that we will take some time to reach a new equilibrium. We need to see the debate in the context of its wider, long-term implications.
Human Rights Watch put it succinctly when they said, “access to information and free expression are two sides of the same coin, and both have found tremendous accelerators in the Internet and other forms of digital communication”.
Second, we must recognise that the challenges we face are not new, though they may manifest themselves in new forms. A proper historical context may help us navigate our contemporary problems.
The general idea that Free Speech should be tolerated because it will lead towards the truth has a long history. John Milton suggested that restricting speech was not necessary because "in a free and open encounter" truth would prevail. President Thomas Jefferson argued that it is safe to tolerate "error of opinion [. . . ] where reason is left free to combat it".
The marketplace of ideas refers to the belief that the test of the truth, or acceptance of ideas, depends on their competition with one another and not on the opinion of arbitrary judgement. This concept holds that what is factually true and morally good will win through in open discourse or, as Peter Tatchell, the Human Rights activist recently put it “bad ideas are most effectively defeated by good ideas – backed up by ethics and reason – rather than by bans and censorship”.
Third, we must steadfastly defend the rights of others to hold legitimate views against the vengeance of the online mob, standing up to the bullying of those intolerant of views other than their own and pushing back against the delegitimising of those whose opinions they dislike. Whether we agree with their views or not, we must defend the right to disagree. When it is uncomfortable to make a stand, we should remember that we may need others to make a stand for us.
When in 1859 John Stuart Mill published ‘On Liberty’ he set out a definition of the liberty of thought and discussion through four distinct “grounds”. It is worth putting them in today’s context.
Rewritten they might be represented as: (a) silencing someone else’s opinion because you believe you are right is unlikely to be a true assumption; (b) the conventional wisdom is seldom the whole truth. Alternative views are required to establish this; (c) even if a stated view is the whole truth it is unlikely to accept it as such if no challenge to its veracity is allowed. And so, (d) this could lead to the enfeeblement of the truth itself.
In other words, the ability to challenge opinions is essential to ensure the triumph of objectivity over prejudice.
So, before you want to silence someone else, think through the implications of your actions and be careful what you wish for. Those groups today who wish to silence those who take contrary views to their own may find that they have set a precedent for their own silencing at a later date.
Fourth, Free Speech is everybody’s business. Whether it is online abuse, the bullying mob of the intolerant, the cancel culture, no platforming or unwarranted government intervention, it is up to us all to speak out in defence of those at the receiving end, whether we find the prospect comfortable or not.
The greater our tendency to turn the other way, the greater the challenge that we may have to meet ourselves in the future and the fewer allies we may have on our side as a consequence.
Fifth, and finally, we should remember that our institutions are sound and strong, even when the courage of sections of our media, business and political life is lacking.
The recent decision by Lord Justice Bean and Mr Justice Warby, presiding over a case in the Court of Appeal sets a strong precedent, making it clear that in our society there is no right not to be offended.
They said, “freedom only to speak inoffensively is not worth having… Free Speech encompasses the right to offend, and indeed to abuse another”.
Freedom of speech and freedom of expression have always had parameters set for their operation, by convention or by law.
Sometimes they have been shaped, perhaps unavoidably, in an arbitrary way influenced by the culture of the times.
Yet, an adherence to simple basic principles has provided us with the guidance that has allowed freedom and liberty to flourish.
The judgements that we continue to have to make around the boundaries of Free Speech will continue to be sensitive and nuanced but if we have to err then we should err on the side of freedom.
After all, it is that freedom that enables us to have this debate at all.