Mar 302009

It is an oft-cited fact that, in the United States, one is completely free to say whatever one pleases with two exceptions: one may be prosecuted for shouting ‘Fire!’ in an enclosed space – if there is no fire and if damage to person or property results; one may be prosecuted for stating one’s intent to harm the President – but only if credible evidence is uncovered that suggests one’s intent was in earnest (otherwise, those wish-fulfilling fantasists who made that documentary about the assassination of George W. Bush would have been thrown in prison for the duration of his presidency).

My understanding of freedom of speech in Britain is a bit different. Lacking a codified Constitution like the United States’, this whole freedom-of-expression thing has long been a part of tradition, common law, and more recently, human rights legislation. But the caveats on it seem to come thicker and faster than those in the US. For example, one is not permitted to advocate the abolition of the monarchy in print.

(Or so I’m told. I never would have known this had, several years ago, I not encountered a leaflet taped to a bus stop that did exactly that; a nearby genuine British person shook his head sorrowfully and opined that it really ought to be taken down before it got somebody into trouble.)

One is also not permitted any speech which is an incitement to violence. Nor, it seems, any speech which is an incitement to hatred. I quote this article in full because, although it is from The Sun, it is clear, concise, and fascinating:

A BID to halt legislation banning gay jokes which stir up hatred was defeated yesterday.

MPs from all parties tried to include a defence of “free speech” into the Bill which makes it a criminal offence to incite hatred over sexual orientation.

But their attempt was defeated in a Commons vote by 328 to 174.

Campaigners had said the Bill would limit freedom of expression. Some comedians even claimed it could lead to them being prosecuted.

Critics of the Government’s move included Blackadder star Rowan Atkinson, who said it could stifle creativity for writers and comedians.

But ministers said if the “free speech” amendment was accepted it could provide a loophole for people wishing to incite hatred.

Now, a ban on speech that incites violence is possibly understandable, though I don’t agree with it. But there is a material difference between violence – initiation of force against another’s bodily integrity – and hatred, which is an emotion or state of mind. I grant that hatred may lead to violence; I grant that there are certainly crimes motivated by hatred. But to outlaw speech that incites hatred is equivalent to outlawing speech that incites boredom, or frustration, or joy – these are states of mind, and those who hold them can never be proven guilty of doing so, for how does one prove the possession of an emotion or state of mind except through the actions that betray it? And the action of initiating force against another person’s bodily integrity is already illegal.

It was already a crime to incite violence, regardless of whether the speaker participated in the violence himself; now it is a crime to incite an emotion, regardless of whether the speaker holds it himself. These laws make the speaker, regardless of intent or participation, responsible for the feelings and actions of others.

And, giving the situation some thought, I begin to realise that there is no better way, really, to force the citizenry to change, if not its views, then at least its expression of them. In the glory days, when we were free to say what we thought as long as we did not act on it, we relied on social ostracism to eradicate the airing of distasteful views. Social ostracism is a powerful tool, but not, it seems, powerful enough, for there were still some eccentrics wandering round spouting bigotry in contravention of all behavioural norms. Caring nothing for the opinions of society, therefore, they must be made to fear legal sanction for their unpleasantness instead. And this has been done very cleverly indeed. If the law were made against expression one’s own hatred, well, there would be martyrs to it everywhere, for to take on oneself the penalty of an unjust law has in it something of nobility, however repugnant the views for which one is willing to accept punishment. But because the law censures you for what others do, it is much more sinister, and much more nebulous, and much more difficult to stand against bravely.

And so we shut our mouths and keep our opinions to ourselves, not because we dislike the idea of going to prison for our own actions, but because we fear the prospect of going to prison for the actions of others.

How is this justice? How is this freedom? How is it possible that, in a civilised society, we are answerable at law for the opinions and behaviours of individuals not ourselves, over whom we have no provable influence and certainly no control? Each of us has, if not legally, at least morally a responsibility to avoid sins of omission; if I witness a mugging, I have a duty, it can be argued, to try to stop it, or to assist the victim. But if a mugging happens out of my sight and hearing and knowledge, I cannot be held accountable for omitting to help. On the other hand, it seems that if the mugger overheard me on the Tube telling a joke about homosexuals, or saying wistfully that Jews deserve to be robbed, I am as responsible for that crime as the mugger himself, if he can finger me as the one who incited his behaviour. Even if he doesn’t mug his victim, but merely spits and calls the victim an unkind name, I am made a criminal, even if the action that damns me happened out of my sight and hearing and knowledge.

Who knows what our stray remarks may lead others to do? And while most of us recognise the justice of being imprisoned for our own behaviour, very few of us see it in being punished for someone else’s. Therefore we remain silent.

But ministers said if the “free speech” amendment was accepted it could provide a loophole for people wishing to incite hatred.

Free speech is a loophole in the minds of our ministers. Rather than being a right which the government must not infringe, it is a loose end to be sewn up. We are only free to speak that which is not prohibited at the whim of each successive Parliament. We are made criminals not only by what others do, but by what others might do. This government has achieved what enemies of freedom have advocated for decades: each man is truly his brother’s keeper, and will pay the price for his brother’s folly.

  2 Responses to “Freedom of speech”

  1. it’s a perfect piece of legislation: what can we do to protest? anything you do will be met by painting YOU as the illiberal bigot. if you are for freedom of speech you must be a homophobe and there is no middle ground, a tactic well tried and tested by the ADL over the years.

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