For this session of the Free Speech course Jonathan Heawood, Director of English PEN, gave a superb introduction to the topic of Incitement to Violence. These notes are based very closely on his own notes.
Jonathan began by giving a tripartite framework within which to fit theories of free speech. Those who defend extensive freedom of speech usually do so because
a) It is the best way to discover the truth
b) They believe it essential to Demorcracy
c) It allows individuals to fulfill themselves through self-expression
( A fourth reason that Eric Barendt mentions in his interesting book Freedom of Speech is suspicion of governments).
John Milton and John Stuart Mill, the two prominent defenders of free speech we have discussed so far in the course (see notes from first session, and notes from second session), both emphasised the link between freedom of speech and truth.
Jonathan introduced 4 news stories
1. Paul Chambers recently Tweeted 'Crap! Robin Hood Airport is closed. You've got a week to get your shit together otherwise I'm blowing the airport sky high!'. More about the Paul Chambers Twitter joke story here.
2. Birmingham Councillor Gareth Compton wrote 'Can someone please stone Yasmin Alibhai-Brown to death? I shan't tell Amnesty if you don't. It would be a blessing, really.' More about this alleged threat here.
3. The case Khalid Mahmood, MP for Birmingham Perry Bar. In the House of Commons in February 2005 he suggested that Salman Rushdie might have faced prosecution for inciting religious hatred under the Government’s new Bill. Lisa Appignanesi quotes from Mahmood as recorded in Hansard in this interesting article from Open Democracy.
4. Radio Télévision Libre des Mille Collines, the Rwandan radio station which broadcast instructions to 'cut down the tall trees' during the 1994 Rwandan genocide. And may have been responsible for up to 45,000 deaths. More about this story here. More about hate speech broadcast on Radio Télévision Libre des Mille Collines here.
These very different cases share a single common feature: that in every instance, speech acts have been deemed capable of inciting real acts of violence, or the slightly less tangible category of ‘hatred’.
How should we understand these cases? Should free speech be untrammelled by laws against incitement? Does the risk of violence or hatred always outweigh the benefit of free speech? Or is the truth somewhere awkward, in the middle – in which case can we articulate a principled approach that allows us to make sense of these cases?
What does 'incitement' mean?
It's not the content of certain speech acts that does things; it’s the utterance of those speech acts in a specific context.
First, we need to work out what we mean by incitement. The dictionary gives us ‘To provoke and urge on,’ from the Latin incitare: to urge forward. It's part of a family of words which describe the way in which language can be used to make things happen: provoke, excite, stimulate, arouse, rouse, stir.Incitement makes things happen. It’s a variety of performative language. Not quite as performative as a marriage vow; but rather more performative than a comment about the weather. The words don’t actually cause something to happen. But they are deemed likely to do so.
But this is really problematic, isn’t it? Because words don’t do things; people do. Even in the classic example of the marriage vow, it isn’t the words which marry the people; it’s the wider social contract within which these words have a particular meaning. Without the legal, financial and moral implications of the marriage vow, it wouldn’t have any force. More than this: in a different context, the marriage vow would have no meaning. It’s not just ‘with these words’ that ‘I thee wed’; it’s with these words, spoken by this person, to that person, in the eyes of those people, recorded for posterity by that person in this book, in a venue licensed by those other people and backed up by the state.
So let’s say that it’s not the content of certain speech acts that does things; it’s the utterance of those speech acts in a specific context. (A point that Mill made when he contrasted writing 'Corndealers are starvers of the poor' in a newspaper editorial with waving a placard with the same words on it in front of an angry mob outside a corndealer's house.
Let’s try to clarify some of the aspects that might constitute a context in which incitement is likely to result in violent action (inspired by Aryeh Neier):
- The authority of the speaker: someone whose words are likely to be acted upon.
- The motivation of the listeners: people who are likely to act upon these words.
- The environment: a library; a church; a public meeting; a demonstration; a riot.
So these three factors – the speakers, the listeners and the immediate environment – give us the context of a speech act.
How does that help us with Robin Hood Airport and the rest?
1. Paul Chambers was prosecuted under Section 127 of the Communications Act 2003 which makes it an offence to send a ‘menacing’ message over a public communications network. He had no particular authority; nor was his audience likely to act on his words. His immediate context was hardly incendiary. It seems hard to justify his prosecution
2. Gareth Compton has been charged under the same law, though the prosecution is still pending. As a councillor, one might argue that he has rather more authority than Chambers – and in fact he has been suspended from the Conservative Party (which might increase or reduce his authority). Similarly, one might assume that he has an audience who will take his views seriously – though anyone familiar with Twitter will know that these are people who, by their nature, don’t do much. The context here is complex: Muslim women around the world are stoned; this was the subject of a radio debate in which Yasmin Alibhai-Brown was participating; and she herself has received serious threats in the past. So her anxiety is understandable. However, she has no wish to press charges; and, whilst his suspension seems appropriate, it would also seem excessive to prosecute him.
3. Khalid Mahmood’s comments on the Satanic Verses were interesting. He claimed that because the book was not a ‘valid criticism’ of Islam, but contained ‘abusive words’ in Urdu, it should not be exempt from prosecution under the proposed law on incitement to religious hatred. It was this argument that led English PEN and others to oppose the Bill very strongly. We argued that the law on incitement was very dangerous if it prohibited authors from expressing their views on religion – even in the strongest terms. The content of the book might be provocative but it was unlikely that anyone would act on Rushdie’s words with violence. Ironically, violence did follow the book around the world – but can the author be held responsible for what people did against him? The Ayatollah’s fatwa might constitute incitement; Rushdie’s novel did not.
4. And what of Radio Mille Collines? Research suggests that this station, which broadcast throughout the genocide in Rwanda, referring to the need to ‘cut down the tall trees’ (Tutsis), was responsible for an escalation in violence leading to around 45,000 deaths, or 9% of the total. The broadcasters had a large following; they apparently had authority over that following; and they broadcast at a time when violence was already in the air. The best that you can say of them is that they did nothing to counter the violence; and in fact it’s clear that they urged their listeners on to greater acts of violence. For this, the directors of the station were subsequently sentenced to around 30 years imprisonment for incitement to genocide.
Compare Aung San Suu Kyi. Should she be held responsible if her followers turn to violence? She’s clearly doing everything in her power to avoid this. Whilst it’s possible that Burma will see more violence in the conflict between democracy and dictatorship it would seem insane to blame Aung San Suu Kyi for this. But can we establish a principle that puts us on her side, but against Radio Mille Collines?
What do we make of this?
- Words don’t do things; people do.
- Context, not content, is crucial to incitement.
- Incitement is not the same as provocation, or offence.
These principles are underpinned by a basic tenet: that we are responsible for our actions. Only in extreme situations, where moral responsibility has been complicated by an environment of extreme violence, can we say that incitement takes on real force. Otherwise, it’s a legal and philosophical nonsense.