“I disagree with what you say, and I will not defend to the death your right to say it”: an argument for restricting freedom of speech

by amiablecompositeur

“If you offered to let me off this time on condition I am not any longer to speak my mind…I should say to you, ‘Men of Athens, I shall obey the Gods rather than you'” (Socrates, 399 B.C.)

The concept of freedom of speech has exercised the minds of philosophers, politicians, lawyers and laymen alike, for millenia – from a legal perspective, it has been enshrined in, inter alia, the Magna Carta, the Bill of Rights, the United States Constitution and the European Convention of Human Rights. Similarly, the right to speak freely enjoys a rich philosophical tradition; advocated, in particular, by members of the Liberal Enlightenment movement, such as, notably, John Stuart Mill. For Mill, and his philosophical acolytes, freedom of speech constituted a positively virtuous, and ethically pure, social force for good. More recently, commentators have identified – for example, during the “Arab Spring” – the potency of free speech as a prime agent of social change. In short, Western society has concluded favourably on freedom of speech, as a concept.

Indeed, the arguments that have underpinned the adoption of free speech are intellectually coherent – not only do societies that embrace free speech benefit from, in the Hegelian sense, the spread and development of ideas, but they possess the opportunity to both expose subversive ideas to scrutiny, and to reaffirm the concepts and beliefs that are cherished.

Nonetheless, the social and political status quo does not recognise freedom of speech as an inviolate doctrine. On the whole, Western states reflect the idea that this particular freedom ought to be curbed and, importantly, subjected to interference from the state. The logic behind restricting free speech was advanced, and popularised, by, inter alia, the work of Joel Feinberg in the mid-1980s. In short, Feinberg justified limiting free speech on the grounds that being offended represents a particular type of identifiable harm. His dogma – known as the “offence principle” – is, of course, articulate and persuasive; offensive words certainly have the capacity to cause definable, and, in some cases, corrosive, harm.

In a seemingly unconscious symmetry with the “offence principle”, the British legal system has reflected the theory that words are capable of constituting punishable harm. For instance, the common law has recognised – post R v Ireland – that words causing psychiatric injury may represent harm for the purposes of the Offences Against the Persons Act 1864. More recently, a labyrinthine network of legislation, designed to combat the proliferation of offensive words and communications, has emerged. Most notably – and due, no doubt, to the high profile “Twitter Joke Trial” and the prosecution of so-called internet “trolls” – Section 127 of the Communications Act 2003 has demanded considerable public attention. However, a variety of separate statutes have also been constructed, and employed, to criminalise the dissemination of offensive speech. As a consequence, the dilemma of reconciling free speech with the omnipresence of social media among an increasingly communicative society, has been thrust firmly into the public forum.

Some commentators – both in the media, and within the public – have argued for an uncompromising approach to free speech; an “all-or-nothing”, inflexible approach that renounces limitations or intrusion from the state. Although its’ proponents appear to be somewhat politically heterogeneous, their vision is a thoroughly libertarian perspective that, essentially, seeks to fashion a free market of words. In principle, their message appeals to one’s common sense – just as the “invisible hand” of a free-market economy secures the efficient allocation of resources and wealth, so should an undiluted market of language deliver the proper apportionment of ideas and theories. In reality, however, relegating important institutions – such as speech – to the machinery of the markets would be somewhat dangerous. Principally, it would ignore the fact that society, as a whole, has a significant investment in the enduring dominance of certain cultural and moral ideas; furthermore, it is also unlikely that a pure free market of vocabulary could actually function, given the disproportionate communicative advantage that certain institutions and individuals possess within society. Indeed, we generally accept that the state has a role to play in the proper administration of the market economy, why should the position be any different within the market of speech?

Another argument for an unfettered concept of free speech hinges on the undesirability of a right “not to be offended”. To enshrine such a right, it is argued, is akin to ushering a culture of censoriousness and to create an “industry” of outrage. Of course, the censorship and criminalisation of certain words would undeniably inhibit progress and, similarly, we can safely assume manufactured outrage to be anathema to the features of a rational and honest society. However, this argument is reductive – placing limitations on free speech does not necessarily, or by right, lead to the censorship of meritorious ideas. Neither does restricting free speech incentivise the production of synthetic outrage, per se. The answer is, surely, not to do away with restrictions entirely, but to ensure that those refereeing speech (i.e. the state) do so in a responsible and morally-robust manner.

However, the principal, and critical, flaw in the theory of unadulterated free speech is that it entirely ignores the potentially harmful impact that words can deliver. There is, on a conceptual level, no real distinction between the effect of, on the one hand, words that cause mental distress, and actions leading to physical distress, on the other. In fact, in some cases, the mouth can be as – if not, more – destructive than the fist.  And, as such, there is no theoretical reason why one form of harm should be criminalised, and the other tolerated.

Of course, those sceptical of limiting the doctrine of free speech frequently mould their discourses around the practical disadvantages of the current system. Many criticisms of the existing order are not entirely without merit – however, the problematic features of this system are apparent on a micro-level, rather than a macro-level. In other words, the broad thrust of the framework that governs speech is fundamentally sound, but there are isolated, specific, areas in need of reform.

For instance, it is frequently argued that regulating “offensive” speech is fundamentally unworkable, or arbitrary, on the basis that determining which words are offensive involves a degree of subjectivity – what offends a certain personality or constitution may not elicit a reaction from another. This notwithstanding, subjectivity is hardly an alien concept within the criminal justice system. For instance, the law on self defence relies, albeit not wholly, on an element of subjectivity within the question of whether “reasonable” force is used, or not. Although the issue of “reasonableness” will, invariably, differ from one jury to the next, the law on self-defence is harmonious and workable. Indeed, the element of subjectivity embedded within the criminal legal system arguably justifies the continuing institution of the jury – we endow trust in our fellow citizens to determine questions of subjectivity in a manner that accords with the civic values of society. There is no practical or ideological reason why this trust should not be extended to the question of “offensive” words. Of course, the upshot of this rationale is that offences encompassing offensive language should be indictable-only.

Further, while arguments that stress the inherent, practical, problems associated with regulating the sheer volume of online speech are persuasive from a logistical angle, it would be morally-inchoate to institute the tolerance of offensive speech on these grounds. Principally, this methodology totally ignores the reality that criminal justice embodies more than a mere cost-benefit analysis – indeed, the criminal legal system recognises various offences that go, essentially, unpunished. For instance, a Central London police station will, in the main, not devote sufficient resources to the investigation of every instance of bicycle theft – our resources are, unfortunately, inabundant. Regardless, the logical response is not to tolerate the criminal act, but to enforce the law that relates to that act, wherever possible. We should reject the impulse to authorise offensive speech on identical grounds, and enforce the law to the best of our technological and budgetary abilities.

The current regime is far from perfect – there is certainly a debate to be held regarding the mens rea component to offences of language. In sum, it occurs to me that an offence should only be established if the author intends to cause offence. We should also be deliberating on the determination of guidelines, or criteria, for the definition of “offensive” speech – again, there are various areas of criminal law (such as, for example, the law on what constitutes an “unsafe” conviction) that utilise guidelines in order to import a sense of functionality and viability. And, finally, there is certainly a compelling argument that the requisite threshold for “offensive” speech should be elevated. Nonetheless, the general, abstract, direction in which the law on free speech is headed is the correct one – a humane and civilised society positively demands an intolerance of all forms of harm, be they physical or mental.

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