“There is increasing evidence that a small but significant number of people, almost all of whom are British citizens, reject our values,” says Home Secretary Theresa May as she lays out the rationale behind her counter-extremism strategy in the lead up to the May elections.
Her proposed counter-terrorism bill (which has since become the Counter-Terrorism and Security Act 2015), includes in it vague requirements for specified authorities, which include educational institutions, to prevent people from becoming radicalized. Included in the act are provisions for the setup of local panels whose job it is to assess “identified individuals” considered at risk of becoming extremists and develop subsequent “support plans” for them.
While the text of the law provides very little insight as to what such a support plan would look like, or indeed what it takes for someone to be referred to the panel in the first place, it does explain that the panels, ultimately under the guidance of higher authorities, have the autonomy to develop their own procedures and determine a course of action for the individual based on majority vote.
This should be alarming.
The Federation of Student Islamic Societies (FOSIS) has quite rightly voiced concern about the implications to freedom of expression on campus such measures could have on universities, and have in the past highlighted the importance of academic liberty to exchange ideas (despite condemning it in other ways). While the legislation makes clear that deference should be given to freedom of academic expression, it sets up a situation where students can be referred to panels based on the ideas they discuss (not just publicly).
These new statutory requirements on universities, which came into force in mid-September at the start of term, force institutions to balance their commitments to free speech and their obligations to the new legislation. The prospects of the success of such a balancing act are dubious at best.
The Home Secretary did not stop there, however. 370 years after John Milton published Areopagitica, the classic case made to British parliament for free expression and against censorship, we learn courtesy of a highly concerned cabinet minister, of plans (since abandoned) to give Ofcom, Britain’s broadcast regulator, the power to reject content prior to broadcast if the views are seen as extremist.
This is what happens when, even in a modern democracy, we convince ourselves that ideas can be legislated out of existence, that the answer to the question “can opinion be limited?” is subjectively determined, and that the incitement of offensive and extreme ideas rather than violence is the boundary which shouldn’t be crossed.
Legislation prohibiting hateful and/or discriminatory speech is, in the context of history, a positive development. We’ve come an encouragingly long way from a place where certain (most) people were regarded as inherently inferior, to a place where saying that others are inherently inferior would likely prompt a criminal investigation. To their credit, the ideas our governments have deemed as legally unacceptable are those of hatred and intolerance, and their forced exclusion from the public sphere reflects a progress which has been hard-fought, but we as a society walk a dangerous and well-worn path when we defer to the state the authority to decide what ideas are permissible under the law.
Good intentions aside, speech-limiting legislation is based on several misconceptions, chief of which are that a person exposed to a disgusting or dangerous ideology will embrace it, and that an idea banned from the public will simply disappear or even stop spreading.
If suppressing ideas deemed harmful was effective in getting rid of them, we would have no concept of revolution as there would never have been one, nor would we have had an enlightenment era. What banning speech does is make it much more difficult to identify hate mongers, as the prospect of prison is a powerful motive to keep one’s bigotry on a subtle level, hidden from the public eye.
Regulating speech works well to sanitize the airwaves, it lets us pat ourselves on the back and it provides us with the tangible means by which we can convince ourselves and the world of how tolerant we are. In so far as actually combating hateful ideology, however, they do absolutely nothing. Hate speech is symptomatic; simply a vocalization of much larger problems within society, and by prohibiting it instead of confronting it, we do the opposite of addressing the mentality which produces it in the first place.
Ideas that would otherwise be voiced in public are instead driven underground to fester where opponents are unlikely to be present. It’s a fallacy to assume that legally denying hate speech a bigger platform stops hate from spreading, or that at least it minimizes exposure to such ideas. Can we say with straight face that legislation is having an effect in stemming rising bigotry in France? Or in the UK?
The logistics of conducting a debate when you are not allowed to have one are complicated, as it is impossible to criticize a point of view you are barred by law from even becoming aware of.
The distinction needs to be made between public expression (through writing, speech etc.) and interpersonal interactions. I do not argue that a person should be allowed to walk up to a random individual on the street and yell abuse at them, that still constitutes harassment and would do so even if the content of the abuse was the word “idiot” rather than a racial slur. Nor do I argue against reasonable regulations on slander or libel; if I lie and said I saw a certain individual commit a crime or another action which I knew they did not, I should still be liable for harming their reputation. Insofar as the ability to convey my beliefs regarding the state of affairs of anything in the world is concerned, however, limitations should only be social, not legal.
In the aftermath of the January shootings in Paris, the term “free speech absolutism” began making its rounds through the public debate, which at the time was ubiquitous. Disappointingly, its use was almost invariably disparaging in nature and used primarily in the context of arguing for limits to free expression. While I don’t personally regard Charlie Hebdo’s cartoons as hate speech, if the concession were to be made that they were, it should still be of no consequence to whether or not they should have been allowed to publish them.
“Free speech absolutism”, in so far as it relates to the expression of ideas, opinions, and convictions about the nature of the world etc., is a term much like “cat felinity” or “Christian Catholicism”; free speech is absolute by definition, there is no such thing as free expression of opinion within parameters.
Next to our basic survival needs, our ability to express what is on our minds is the most fundamental, intimately personal right we have as human beings. No tyranny on earth has ever been able to, for pragmatic reasons, directly control people’s minds, but there has never been a despot who didn’t understand or exploit the fact that controlling speech is the next best thing.
Again, it’s important to acknowledge that the driving force behind hate speech laws is generally the protection of minority communities from having their dignity attacked, which of course is a noble pursuit per se, but the backhanded gift of being unburdened of our need to critically attack hate directly at the source is a poisoned chalice from which we’ve been drinking merrily, and whose effects are becoming increasingly clear.
The prospect of having Theresa May, or any other individual or group of individuals, decide for the public what ideas we can’t be exposed to or discuss is terrifying, not to mention condescending. It should be insulting to any member of a free society to be told that they can’t be trusted to listen to an idea, lest they be corrupted by it.
In spite of this, every nation on earth, with the exception of the United States by virtue of its First Amendment, has laws in place that limit opinion within constraints deemed permissible. This is to be expected in non-democracies, but Europe? The continent that gave us the age of enlightenment, that produced the ideas of John Stuart Mill and Voltaire, of Spinoza and Thomas Paine, still struggles with the concept of free expression?
France, which has become the focal point of this debate and whose revolution (immortalized in French culture and a catalyst for worldwide transitions to democracy) was fought precisely to remove the monarchical and theocratic systems of which the suppression of ideas was a principle tool, today holds not only public, but private correspondence as eligible for prosecution.
Greece, the birthplace of western democracy, along with Austria and Finland, to name a few, still have active though seldom enforced blasphemy laws in their penal codes.
Germany, whose response to atrocities committed in the 20th century has been the height of responsibility and serves as a model for other countries (including the UK and the United States, who themselves have engaged in past atrocities), has, in the pursuit of ensuring history does not repeat itself, engaged in restrictions on free association and expression. While this is understandable, the eradication of racism has not quite been successful, and the ability of the German people as a whole to demonstrate compassion on their own has not needed legal prompting.
While the activity being banned today is quite obviously and importantly different from what was being restricted during Europe’s darker chapters, we too easily assume that we know where to draw the line, that our subjective assessment of what is palatable is the right one. While the ideas that are found deeply offensive in the west are bigoted ones, how can we be comfortable with the idea of prosecuting someone like Katie Hopkins because we find her remarks deplorable, while condemning other governments for prosecuting secular bloggers for saying things they find deeply offensive in their cultures? The ability to speak one’s mind must be universal, it needs to transcend cultural differences.
This is not to say that there should be no response to people spouting hateful or extremist ideas, there absolutely must be a response, but it cannot be a legal one. It is up to the rest of us to be present and vocal in the face of hate-mongering. It is not enough to have vague propositions that “racism and extremism are bad”; racist ideas are specific, whether they describe patterns of behaviour or inherent genetic traits, and must be met with specific counterarguments or we have no chance or eliminating them. In order to relegate a bad idea into the dark, we have no choice but to let it out into the light.