Freedom of Speech: its importance and necessary constraints

Freedom of speech is one of the most important rights or attributes of our common humanity: but clearly there must be limitations on what can be said: the great debate is where boundaries are on these constraints. Can a teacher from Batley use the Mohammed Cartoons as a teaching tool: or can Pro Palestinian/Anti-Israel protesters chant ‘from the river to the sea’.

The teaching of Jesus, and later of Paul, lays down general principles of the need to love our neighbour and that has implications as much for speech as for action. In the Old Testament, the book of Proverbs in particular warns about the dangers of malicious gossip, and also warns against the person who stirs up dissension between friends or neighbours.

Everybody knows that free speech is not widely respected today. In many countries and contexts, you cannot express certain opinions or have certain views that are disapproved of. There are ‘hate’ crimes, ‘hate’ incidences and offensive speech. Many people reason it is best to say nothing!

However, without free speech, there is no free society, there is poor intellectual development, often poor economic performance, and an assault on our humanity. Free speech also ensures free choice to individuals because we model our choices on the information that we receive. We want to say what we think: and think what we say. We don’t want to look over our shoulder as we speak in case, we say something wrong.

As long ago as 1644, John Milton in his Areopagitca wrote ‘Let truth and falsehood grapple’ and since the writings of John Stuart Mill, the approach in Britain has been the more speech, the better, as reasoned debate will enable the good idea to prevail over the bad idea.

But there must be constraints. Every law student will tell you that they are taught on the first day that you can’t shout ‘fire’ in a crowded theatre. Nor does free speech include profanities, or ‘fighting words’ which provoke hearers to imminent violence.

The fact is that you either believe in free speech or you don’t. Free speech means the right to say things that others may find unpleasant and offensive: a right to say only inoffensive things is worthless. But part of that picture is that nasty people will have free speech rights too - from the pornographer to the arms manufacturer and they may express themselves poorly.

The classicus statement by the UK courts was set out in a case called Redmond Bate in 1999.

Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.

Recent cases have involved Muslims calling returning British soldiers from Iraq as they paraded – ‘murderers’ and ‘baby killers’. Another recent case related to a Gay Pride Parade which had a banner that read: ‘Jesus is a fag’.

There are three developments in particular that I want to address: the first is a change of attitude to free speech, the second is the growing control of speech by both government (through use of the Police) and corporations and the third concerns demographic change. It is not only the law that can suffocate free speech, but the process of law.

Firstly, as Dworkin has articulated in a recent book1 the threat to free speech no longer comes from the autocrats, or the despots, but from those who claim to speak for ‘justice’ and not tyranny. These woke warriors appeal to our kindness: the values we endorse such as respect, freedom from racial hatred and freedom from prejudice. There can, they argue, be no equality in society if people are permitted to express bad ideas.

So, if the speech is vile, it is reasonable to limit that speech. Why should a fat person be called fat? That speech is unkind and violates dignity. Many people think this is a reasonable approach, until of course someone else deems their speech vile…

The second development is the control of free speech as a continuum of the nudge principle, or as some people say, the shove principle.

Thus, by the use of enforcement policies (a preserve of the Executive and not of Parliament), the Police and (other regulatory bodies) can prevent certain expression of free speech and permit others. This use of regulation is described by lawyers as having a ‘chilling effect’; in which the costs to an individual of exercising their free speech is outweighed by the risk of detriment.

In another case, as an example of the above, a Mr Hammond (called the last British Martyr, although unlikely to be the last) stood outside a Gay pub with a sign that read ‘Turn to Jesus’. A group of heterosexual and homosexual persons assaulted him, he was arrested for hate speech - in effect, arrested for inciting his own attack. He was convicted. He died shortly thereafter.

The nudge principle seems exercised rather arbitrarily, but if we look closer a pattern emerges. In contrast to the case of Mr Hammond, at the al quds parade of 2017 a Muslim speaker blamed ‘the Zionists’ for burning down Grenfell Tower (where many persons had died in the tragic London fire). The Police did not arrest but rather protected the speaker!

In another case, a train conductor was requested to attend a seminar on White Privilege. He attended, said what he thought about the seminar in strong language to his wife thinking no one could hear him, and was dismissed with the implication that he was a racist. He won his case for unfair dismissal, but permanently lost his work.

In yet another case, a Mr Miller tweeted that a man cannot be a woman. He was visited by the Police at his office, warned about his speech and placed on the register for hate incidents. The judge accused the Police of acting like the East German Stasi.

These cases nudge us in the right direction. You can lose your employment if you don’t like being a captive audience to political indoctrination, or risk assault if you

say homosexuality is a sin, or you can be intimidated by the Police if you believe in sex only being appropriate between a man and a woman. Often, the use of term offensive speech is a code word for hostility to the message and for claims that we reject.

The principle is that it is not just the government which should be neutral, tolerant, and egalitarian, but all private individuals and corporations (from tech companies to private associations) must be neutral, tolerant, and egalitarian, as defined by the government, in our private lives.

Further the dominance of the state, now so great in all areas of society, means that the government can impose its viewpoint in multifarious situations: from tenancy agreements to the teaching about sexuality in educational provision, and even access to employment.

The third development concerns demographic change. Former Prime Minister David Cameron supported the right of free speech when he stated ‘Je Suis Charlie’; and marched in Paris for the right of free speech to lampoon religion, as had recently been done by the magazine Charlie Hebdo with murderous consequences.

Within a few months of Mr Cameron’s public statement, there was a major trial of a street preacher from Taunton who criticised the prophet Mohammed; and lo, the purported aspirations of the government for open criticism of religion proved to be mere words. Now the risk of public disorder came into play... The preacher was acquitted after his humiliating arrest, bail, the wait for trial and risk of punishment. The Police did not protect free speech and the process of the trial became the actual punishment. The process was meant to act as a deterrent, as we see in law so often nowadays.

If we want free speech, we have to mean it. All free speech may be an incitement in one way or another by one person or another; but the free flow of ideas is an essential characteristic of being human.

There may need to be some reflection on religious speech, especially in relation to demographic change. Currently, on the streets of London blood libels are shouted out publicly against the Jewish community, who live in fear due to the threat of violence manifested against them.

Religious speech does not match the liberal paradigm as there is no ‘search for truth’ - religion purports to have ‘found the truth’. The term proselytism is directed to the changing of minds. Religious speech may be the very type of speech that we don’t want to hear because it is offensive, but it is for this reason that it must be respected and protected.

An individual’s relationship to God is vitally important: and there is no reason why the religious sensibilities of all religions equally (from Hinduism to Christianity to Islam) should not be protected by some updated form of blasphemy laws subject to the liberal democratic tradition (which permits rational and reasonable criticism thereof). Again, the boundaries of such a law need to be debated and is too wide a subject to canvass here.

However, the principle of freedom of speech should not legitimate death threats, or threats of violence, or seizing the public space or intimidating a respected community. Ultimately, when there is a clash of values as to what constitutes liberty,

the liberal democratic state must assert its values by the impartial and fair use of law.

Paul Diamond | Nov. 23, 2023

[1] The late Ronald Dworkin in the foreword to Extreme Speech and Democracy ed. Hare and Weinstein (2009)

The views and opinions expressed above are those of the author alone and do not necessarily reflect those of the Jubilee Centre or its trustees.