Monday, 16 February 2009

Freedom of speech is not a right

The other day a Dutchman with a funny shaped head wanted to speak at the House of Lords, because he had been invited to do so. Apparently he has some involvement with a film that argues the spread of radical Islam isn't the most cuddly thing in history. Indeed, as I understand his position, he says it is a recipe for repression on a scale not seen in Europe since the 1930s when an Austrian who always missed a bit shaving and an avuncular Russian with a taste for genocide both got rather overexcited.

I can't say I disagree with the general thrust of his argument. Throughout history political movements based on selective interpretations of religious texts have gained power by picking on minorities. Identifying a pariah group is an effective way of welding together others who enjoy the feeling of superiority and readily give support to the leaders who massage their frail egos. No doubt some of the leaders genuinely believe they are carrying out their god's work, but something in my ever cynical mind thinks rather more are just happy to find an excuse to wield power. Over time it would not be surprising to find some in the first category reassessing their faith but continuing to pursue the cause because power itself is hard to relinquish; equally some in the latter camp might find they become persuaded by the religious texts when previously they considered them little more than an excuse for self-aggrandisement.

Whatever the motivations of the leaders the result is the same. They gain support by telling potential followers of their superiority over the sinful minorities and then strengthen that support by using such brutal measures against dissenters that followers dare not express doubts. If you are not with them you are against them, and if you are against them your life will not be worth living. All promises of power and happiness for followers soon melt in the dust as the need to suppress dissent in order to maintain power takes precedence over everything else.

Rule by militant Islamists follows this pattern today in every country they govern. There is nothing specifically Islamic about it, it is just a universal pattern of behaviour for idealist governments. The ideal trumps everything. If democracy does not embrace the ideal, they tinker with democracy because democracy must be faulty. If ancient rights and liberties do not sit comfortably with the ideal, those rights and liberties will be trimmed because they must be faulty. If existing customs do not embrace the ideal, they will be abrogated because they must be faulty. Everything gives way to the ideal, regardless of the consequences.

One might be tempted to think that the ideal itself is immutable throughout this process, yet nothing could be further from the truth. Ideals are re-written, updated, re-defined, modernised, re-interpreted and always expanded so as to extend the power of those relying on them as their basis for power. I believe this to be inevitable because once power is taken or used in order to advance an idealist ideology the power and the ideology become self-supporting. Having power is justified because it advances the ideal and the ideal is justified by the fact that it is exercised by those in power. Any hint that the grip on power might be challenged or that the ideal can extend to areas it has not yet touched will lead to an expansion of power and a tweaking of the ideology to secure that extension. Throughout the whole exercise the justification for power is not, and cannot be, the subject of rational debate. The justification of power is a higher authority - a god, a little red book, a tome written in the British Library, or some such.

I am not sure the Dutchman with the funny shaped head objects to radical Islamism because it is the latest example of this pattern of oppressive rule, although the little I have read about him suggests he does. Objections to his presence in this country were sufficiently persuasive for hapless Jacqui the so-called Home Secretary to find a moment in her busy schedule to turn from calculating how much she get the taxpayer to pay towards her domestic bills and sign a letter informing said Dutchman that he won't be allowed into the UK. The reason given was that his presence risked inciting racial and religious hatred.

This case made me think about the distinction between idealist politics and practical politics. It is possible to look at principles such as the right to free speech as being idealist in nature and in a way they are in as much as they appeal to a general principle. The difference, as I see it, between idealist and practical politics is that the former is concerned with meeting a pre-determined, top-down edict whereas the latter is concerned with what makes life comfortable for real people living real lives and is essentially a reactive, bottom-up process. In practical politics established ways of doing things can be discarded if they no longer provide a benefit, just as the cathode ray tube has now almost disappeared from view despite being a major part in the majority of British homes for forty or more years. Other technologies have supplanted it and provide a better product, so out goes the old fat telly and in comes the slim-line model. Flat tellies did not corner the market because the manufacturers said they had to. They were offered for sale alongside their plumper rivals and took over because the little people at the bottom decided to say hello to thin.

The so-called right to free speech is very much a bottom-up concept. It is a nonsense to think of a government decreeing that everyone must speak freely, the desire to speak freely exists in us all. We all have opinions, including opinions on subjects we actually know very little about. In the absence of a legal restriction we will express our opinions, so the right to free speech reflects something that is in our nature as human beings. Of course, these days it is sometimes seen as a right given by government (or, to be more precise, Parliament) because it is contained in the Human Rights Act. And when questions arise about the use of governmental discretion to suppress free speech the debate is sometimes quite legalistic and revolves around the wording of that Act. Yet this fails to acknowledge that we all speak freely unless prevented from doing so. The law does not give us free speech, our brains and mouths do that very nicely thank you. The law can only restrict the extent to which we can speak freely without fear of sanction. It is, in my view, fundamentally wrong to talk of "the right to" free speech. It is like talking of the right to sweat or the right to chew or the right to sneeze or the right to micturate. These are not rights, they are parts of the human condition, they are things we do naturally.

Free speech can be limited on either practical or ideological grounds. Indeed in many instances the limitation is the result of both practicalities and ideology. Debate cannot operate productively unless each speaker is allowed to make his contribution without undue interruptions. If we want to hear all sides of the argument it is necessary to stop other people speaking while one contributor is having his say. The practicalities of the exercise require freedom of speech to be curtailed in order to allow each case to be put. Practicalities also require all sides to have a fair amount of time to put their case. Ideology also comes into this. We generally accept that open debate is beneficial. That is an ideological proposition, yet when analysing why we hold that ideology we get back to the simple fact that we all hold opinions and human nature dictates that we wish to express them. The ideology comes from the bottom-up not the top down, and there is no conflict between ideology and practicalities in this example.

The law of defamation is somewhat different. If our words cause harm to another we step beyond the realm of mere speech. Untrue words can ruin an individual's life and they can ruin a business. The law steps in to penalise untruths that cause significant harm for essentially the same reason it steps in to penalise physical violence, the harmful consequences are unacceptable. It is not necessary for you to know that what you say is untrue, if it is in fact untrue and it causes the necessary harm the law of defamation hold your liable (subject to certain exceptions which I needn't deal with here). The law in this field is more top-down than bottom-up because it imposes a penalty even where the guilty party is sure he has told the truth. In the field of defamation, for all the many faults with the law as it stands, the truth is always a defence.

If the law is to impose a limitation on free speech it risks being brought into disrepute unless there is a solid ground for doing so. New laws over the last decade have sought to restrict free speech like never before. There are arguable justifications for some of these laws. For example, religious beliefs are at the heart of many people's lives and to find their religion being vilified is, no doubt, a matter of great distress to them. Similarly, discriminating against people because of their pigmentation (I refuse to fall for the "race" argument, it is nothing to do with race it is all to do with pigmentation) leads to them being treated unfairly and is not acceptable in a sophisticated country like the UK. Arguing for discrimination against those of dusky hue can, therefore, be seen to be sufficiently harmful that freedom of speech should be curtailed in that respect. Yet even though burning heretics and refusing work to someone of dark pigmentation are rightly unlawful, to take the argument one stage further and prevent debate on the subject is another matter entirely. There is no more justification for preventing such debate on the ground that it might encourage some people to barbecue the local vicar, than there is for allowing the debate so that the good sense of not engaging in a clerical conflagration can be spread to the widest possible audience.

What troubles me most about the new laws, as exemplified by hapless Jacqui's letter to the Dutchman with a mop on his head, is that they are based on idealism not practicalities. The ideal in question is the new religion known as "anti-racism". It causes boxing commentators to differentiate between a large dark-skinned man and a large pink-skinned man by the colour of their shorts when the difference between their pigmentation is far more apparent. It causes the word "black" to be reserved for use as an exclusive label based on pigmentation, to such an extent that I have witnessed a senior government minister frowning at the question "black or white coffee" and answering "with milk". It causes children in need of a loving home to be refused a suitable placement because the foster/adoptive parents are of different pigmentation to the child. It causes walking on eggshells in so many fields, and all of it serving no useful purpose. And, like so many shallow and narrow ideologies, there are victims of all pigmentations scattered along the way.

But more, there is also a far wider harmful consequence to the very people this muddled new religion claims to help. It creates formal legal divisions between people of different skin colour. It also creates a government-approved sense of victimisation even where there is no justification for it. Some argue that instilling a sense of victimhood in people of dark pigmentation is a deliberate consequence of the new religion because it makes them more likely to support the politicians who label them victims. I'm not convinced of this, I believe it is more likely to be an unintended consequence of unprincipled good intentions being taken too far.

It seems pretty obvious why the Dutchman was excluded. It was not because he wished to argue against the spread of radical Islamism. It was because he wished to argue against a religious-political movement which involves almost exclusively people of non-pink pigmentation. What a curious irony it is that preventing radical Islamists from exploding themselves in the tinned fruit aisle at Sainsburys requires CCTV cameras on every street and random searches by the police, while someone who wishes to argue against radical Islamism is excluded from the country in case his speech is construed as being less than chummy to any human grenades who happen to be a bit brown.

Many have commented that this issue is an example of our current government introducing thought crime onto the statute book. They have a point. I prefer to look at the way the legislation was formulated and describe it as ill-thought crime.


Charon QC said...

Dear FB

There is also the small matter of hapless Jacqui Smith complying with the law of our country. I interviewed Carl Gardner, authour of The Head of Legal Blog t'other day. he takes the view that The Home Secretary's decision is unlawful . I tend to agree. It will be interesting to see how our courts cope with this should Wilders appeal the exclusion decision.

Carl is an ex-government lawyer who specialises in EU and Constitutional Law matters and acted for the government for 10 years.

I'd be interested in your own analysis of the lawfulness of the decision.

The podcast may be found here:

All the best... we should try and fix that drink!

Bob's Head Revisited said...

Brilliant post, FB. One of your best.

Anonymous said...

Yes brilliant,I might add that pandering to the pigmented causes resentment and animosity in the unpigmented,and vice versa.So actually causes the opposite to what was intended.
I believe the said film has been watched by far more now than if there was no ban.
I posted on whichendbites this morning that you cannot stamp out prejudice,it started with monkeys in one tree suspicious of those in another,through tribe,village, town,country to sex etc.Next I expect it will be aliens.Its human nature.

Anonymous said...

Free speech in the Netherlands got Ayaan Hirsi Ali in some dificulties, too. Her association with Theo Van Gogh, a murdered film maker, and her need to run to save her own life is documented in her autobiography "Infidel."

Anon -- ee -- moose