This animation was made by Cognitive from a script by Nigel Warburton.
More on John Stuart Mill and Freedom here:
Watch Michael Sandel discuss Mill's Utilitarianism (from his Justice course)
This animation was made by Cognitive from a script by Nigel Warburton.
More on John Stuart Mill and Freedom here:
Watch Michael Sandel discuss Mill's Utilitarianism (from his Justice course)
A version of this review originally appeared in the Times Literary Supplement, 4th January 2013. It is reproduced here with permission.
On the Offensive: a review of Jeremy Waldron The Harm in Hate Speech (Harvard, 2012)
by Nigel Warburton
Free expression has consequences, some tragic, some surreal: that much is clear. The ludicrous YouTube trailer ‘Innocence of Muslims’ has left bodies in its wake as protests around the world have turned violent. For those on a hair-trigger, perceived religious slight is sufficient stimulus for murder. Yet that odd video is protected expression within US First Amendment law, and the unrest it stirred lead Barack Obama in a recent United Nations address to reassert free speech as a core democratic value, condemning those who used its online presence as a pretext for violence.
We’ve been here before. In 2004 Theo Van Gogh was murdered in an Amsterdam street because of Submission, the film he made with Ayaan Hirsi Ali and in which lines from the Koran are projected onto a woman’s body that bears the marks of a beating. Before that, Salman Rushdie, aka Joseph Anton, spent years in hiding as The Satanic Verses was burnt in the streets. The list of victims is already long, and, sadly, looks set to lengthen. Where a society chooses to draw the line on free expression is, then, no trivial matter: it can be a life and death decision. The borderlines must be negotiated and re-negotiated as times and technology change and new cases arise. This isn’t just a question of legal wrangling. Intimidation and implied threats can lead to self-censorship, and the free flow of ideas can as easily be impeded by perceived risk to those who air their views as much as by direct censorship.
For John Stuart Mill in On Liberty (1859), the starting point for liberal investigation of this issue, the answer was clear-cut: causing offence should be distinguished from causing harm. Incitement is one thing and is, rightly, illegal; but expression of dissent, and even contempt expressed in forthright language, is quite another. Radical dissent should be tolerated for the benefit of all. It doesn’t cause actual harm. Its presence makes us better individually and collectively. Discussion and dissent are, Mill maintained, forces for good. It’s not just that geniuses begin life as outsiders questioning the status quo, expressing opinions others find repellent. Dissenters, even if what they say is wrong, do us the service of forcing us to clarify and justify our own beliefs, preventing them congealing into dead dogma and unthinking loyalty to prejudices. Our fundamental beliefs should be challenged regularly; we risk slumbering through life if there is no intellectual enemy in the field. This is our best hope of discovering truth, and the best prophylactic against enslavement to the given. Yet Mill was clear that we should not tolerate a rebel-rouser with his placard ‘Corn dealers are starvers of the poor’ in front of an angry mob on the steps of a corn dealer’s house. That would be to condone incitement to violence. Precisely the same sentiment about corn dealers expressed in a newspaper editorial should, however, be tolerated: the context, not just the words, determines the meaning of the verbal act. But where there is no instigation to violence, free expression should be encouraged, and enjoyed. If you disagree with what someone has to say, so much the better: take the opportunity to repudiate it, or better still, refute it.
The title of Jeremy Waldron’s book, The Harm in Hate Speech, rises to Mill’s challenge, directly contradicting his belief that speech itself may offend but cannot harm us. Hate speech, Waldron suggests, can deliver genuine harms, and in specific ways. Unlike Mill, Waldron dismisses the idea that truth will prevail in the marketplace of ideas, and simply denies that the best remedy for bad speech is more speech. Waldron rather wants to curtail expression where it risks undermining individuals’ dignity.
There are two very different legal traditions relating to freedom of expression. In the US, the First Amendment, at least in recent case law, provides extensive protection of free expression. At its heart is the notion of freedom of expression for those whose views you despise or reject. Skokie is its emblematic test case. Skokie, a village near Chicago with a large population of Jews, many of them Holocaust survivors, has become synonymous with the idea that free speech is not just for those with whom you agree.. When in 1977 neo-Nazis planned to march through the village wearing swastikas, the American Civil Liberties Union (ACLU) supported their constitutional right to do so (although they didn’t actually march in the end). In this tradition the important right to free expression is content neutral, apart from specified categories of exception such as ‘fighting words’, slander, child pornography, and so on.
By contrast, in Canada, Denmark, Germany, New Zealand and, of course, the United Kingdom, there is hate speech legislation: prohibition on public statements and other communicative acts that incite hatred against specific groups, typically racial groups. Whereas defenders of the US free speech tradition emphasize the need for a reasonably thick skin and the effectiveness of meeting offensive speech with counter-speech, those sympathetic to hate speech legislation maintain that it protects those who would otherwise be vulnerable to abuse. They claim that such abuse, although it falls short of incitement to violence, harms individuals psychologically and undermines their status in society. The risk, though, is that well-intentioned legislation is used to suppress criticism of, or jokes about, another’s beliefs and ways of living.
Waldron is firmly on the side of the hate speech legislators. He wants free speech dogmatists to think again, and in true Millian spirit, presents a series of challenges to the prevailing view in the US. He isn’t naïve, though. He doesn’t believe his short book will presage the overthrow of First Amendment free speech protection any more than clear thinking about gun control will prompt major constitutional change. His more modest stated aim is this: to investigate whether American jurisprudence has really addressed the best arguments for hate speech legislation. Why he has chosen this tentative aim is unclear since most of the book (not to mention its blurb which states that Waldron ‘argues powerfully that hate speech should be regulated’) reads as a critique of the US tradition of tolerating insult, abuse, and invective, and a defence of the European way of dealing with hate speech.
Waldron suggests that hate speech should be reconceived as an intolerable form of group libel. He imagines a Muslim out for a walk with his children in New Jersey encountering a sign ‘Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in!’ and then seeing a poster outside his mosque reading ‘Jihad Central’. These distasteful slogans form part of the ‘visible fabric of society’ (p.3). They are calculated attacks on the dignity of Muslims in New Jersey in the sense that they aim to diminish their social standing; they undermine inclusiveness; they send messages to fellow haters about the acceptability of this sort of attitude. This damages individual Muslims. Waldron wants such smears outlawed on account of the personal and social harm they cause. They have no place in a well-ordered society. These are not merely the by-products of bigots letting off steam, but a deliberate targeting of members of vulnerable groups. Taking a walk in public with your family shouldn’t be like this. The law should be used to prevent it.
Waldron finds some support for this stance in the verdict in the 1952 case of Beauharnais vs Illinois. Joseph Beauharnais had circulated racist leaflets arguing that Chicago authorities should stop ‘the invasion of white… neighbourhoods and persons by the Negro’ on account of an alleged link with guns, rape, and marijuana use. (quoted Anthony Lewis, Freedom for the Thought That We Hate, p.158). Illinois had made it a crime to distribute any publication that ‘portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion’. The conviction and fine of $200 were upheld on appeal by the Supreme Court by a five-four majority, despite the apparent conflict with First Amendment rights. One argument used was that Beauharnais had libeled a group, and that such libel was not protected speech and so lay outside the First Amendment’s protective scope.
The 1964 verdict on New York Times vs Sullivan effectively overthrew that decision.The New York Times had published an advertisement paid for by supporters of Martin Luther King Jr.’s which stated that ‘Southern violaters of the Constitution’ had used illegal tactics against civil rights protestors. L B. Sullivan, an Alabama commissioner, claimed that because he was in charge of the Montgomery police at the time, he could be identified as the target of the advertisement and so had been libeled. After losing the case, The New York Times won a pivotal Supreme Court judgment that reversed the previous claim that the burden of proof in such libel cases lay with the defendant. Henceforth the plaintiff had to prove falsity in order to win. The effect was that public figures could no longer win damages for libel unless false statements had been made from malicious intent. The justification for this was that because false statements are inevitable in vigorous public debate, which is good for democracy, they must be protected.
It is important to get clear what Waldron means by ‘group defamation’ here as it is not simply any defamation of a group. Rather, for him, the salient aspect is that it is defamation of vulnerable individuals by means of defamation of group characteristics . He wants legislation that will protect individuals, not groups. So, perhaps surprisingly, religious doctrines aren’t sacrosanct in his view: it is permissible, for example, to savage a Christian doctrine, and that wouldn’t result in the relevant kind of group defamation, even though it might well seem to be a way of attacking Christians who believe this doctrine. Think of the way that disparaging remarks about Scientologists’ belief systems impact on the way Scientologists are treated. Waldron assertssomewhat implausibly that ‘the civic dignity of the members of a group stands separately from the status of their beliefs’. But if members of a group hold beliefs that are widely ridiculed the ridicule undermines their credibility and dignity in many respects.
That Waldron attempts to draw this distinction between beliefs and believers is easily missed, but emerges in his discussion of the Danish cartoons of Muhammad published in Jyllands-Posten in 2005. You might expect him to treat the affair as a further example of the visible fabric of society undermining dignity – in this case the dignity of Danish Muslims, and Muslims in other countries too: the more the cartoons circulate, the more likely that Muslims will lose dignity. But far from it: Waldron takes the liberal line that Muhammad and the Koran (or, for that matter, Jesus and the New Testament) shouldn’t be guaranteed immunity from defamation. For Waldron the Danish cartoons constituted ‘a critique of Islam rather than a libel on Muslims’ and so should escape legal censorship since they fell short of being a group libel of the relevant kind. If they had implied that most followers of Islam support violent terrorism, then they would have come close to such a libel. Waldron finds the publication and re-publication of the cartoons unnecessary and offensive, but, as he makes clear, offensiveness alone isn’t sufficient grounds for legal intervention.
Waldron’s stance throughout depends on the assumption that the harms that hate speech inflict are worse than the harms of hate speech legislation. The latter might include the risk of martyrdom of haters, the tendency to drive them underground where they may do more damage, as well as the risk that hate speech legislation is a significant step down a slippery slope which, as we have already seen in the United Kingdom, may quickly descend to the misuse of the Public Order Act with all its potential for the suppression of protest and public dissent (it has already been used to hamper British journalists attempting to report protests). Waldron believes there is a risk that we treat hate speech too lightly. But there is a risk, too, that we accord it too much weight, underestimating the power of counter-speech to neutralize its worst effects. [ends]
Free Speech Bites launches on iTunes and on Index on Censorship's webpages with an interview with the eminent journalist, writer and presenter Jonathan Dimbleby. In this wide-ranging interview with Nigel Warburton he discusses issues of censorship, privacy, regulation of the media, and offfence. Free Speech Bites is made in association with SAGE. Press release for Free Speech Bites available here. Listen to Jonathan Dimbleby on Censorship below:
Podcast Interviews on Free Speech:
Rae Langton on Hate Speech (Philosophy Bites)
Tim Scanlon on Free Speech (Philosophy Bites)
Richard Reeves on Mill's On Liberty (Philosophy Bites)
Alan Howarth on Free Speech (Multiculturalism Bites)
Notes and Links on Free Speech:
Some relevant books:
While teaching a course on free speech for English Pen at the Bishopsgate Institute in London a few years ago I came across an intriguing pamplet. For notes on this course, follow this link. This purports to be an essay on blasphemy by J.S. Mill. It is particularly intriguing because it is not included in Mill's published works. If it is by Mill it gives insights into why he focussed so much on truth when discussing free speech in On Liberty (1859). It was first published anonymously in The Westminster Review in July 1824,when Mill was only 18. We know that Mill was actively involved in editing the Westminster Review at that time (working alongside Jeremy Bentham and his father James Mill). He had written a series of letters about blasphemy under the pseudonym of Wycliffe for the Morning Chronicle in 1823 and had been deeply influenced by the trial of Richard Carlile (he had re-published a work by Thomas Paine, been prosecuted for blasphemy, bravely read the entire Paine book out as part of his own defence thereby guaranteeing that the book had further readers, and then was thrown into prison).
There is some doubt as to wheter Mill actually wrote this essay. If he did, perhaps he didn't want to acknowledge it because it makes some concessions to religion. Here's the story:
G.W. Foote confidently published it 10 years after Mill's death in 1883 as ‘J.S.Mill on Blasphemy’. He cited an explicit attribution by the early psychologist Alexander Bain: in his John Stuart Mill: A Criticism With Personal Recollections. Both Foote and Bain knew Mill personally. Bain declares of the Westminster Review article, which he describes as being on the Carlile Prosecutions (though it ranges more widely than that), that he had no doubts that Mill was the author. G.W. Foote, who was himself imprisoned for 6 months for blasphemy in 1883 for publishing religious cartoons (!), reprinted the 1824 Westminster Review essay in the run up to his own trial for blasphemy and followed this with his own autobiographical ‘Prisoner for Blasphemy’ (published by the Progressive Publishing Company). Even if it is not wholly or even partly written by Mill, the Westminster Review article anticipates many of his arguments in On Liberty and is a lively read.
What do you think?
Download 'Mill on Blasphemy' as a pdf
Download 'Mill on Blasphemy' trans pdf (may include typos)
A longer video interview with Scanlon (54 mins):
A podcast interview with Richard Reeves (Mill’s biographer) on J.S. Mill's ideas about liberty, including freedom of speech:
Index on Censorship’s Free Speech Blog discusses free speech issues in the news from an anti-censorship perspective.
'If liberty means anything at all it means the right to tell people what they do not want to hear.' George Orwell (from the final paragraph of his proposed preface to Animal Farm):
Orwell's intended Preface is a fascinating essay that connects with many of the themes of the course:
‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ Article 19 of the Universal Declaration of Human Rights
The reception in South Africa of J.M. Coetzee’s novel Disgrace provided an interesting case study of a work of fiction being treated as if it were a political statement and commentators creating a climate in which the novel was condemned for its depiction of post-apartheid South Africa, and could possibly have lead to some forms of indirect (or even direct) censorship. The book includes black South Africans raping a white South African woman living in a rural area that some commentators read as a straightforward bleak commentary of the state of the country and as an episode that would fuel racist perceptions of black crime, though others saw it as a work combining realism and allegory. Claims about Coetzee’s alleged contribution to racial stereotyping were made in an ANC presentation to the 2000 Human Rights Commission hearings on Racism in the Media. These are also discussed here.There is also a very interesting interview with Coetzee that touches on issues of interpretation of this book, and a discussion that outlines the ANC’s conerns.
Gillian questioned whether politicians should discuss works of fiction as if the events described were real events, and drew attention to the brilliance of Coetzee’s writing and the complexity of the book that defied the simple interpretations that it received from some members of the ANC. Freedom of expression for novelists must mean freedom to explore novelistic experience without a requirement to take a moral lead or an obligation to investigate issues that others might find distasteful.
Most curbs on free expression for writers occur in the areas of sex and of religion. We discussed the Lady Chatterley’s Lover trial. This turned on the question of whether Lawrence’s book was pornography or art. The law allowed that even if a book had a tendency to ‘deprave and corrupt’ there could still be a defence of its publication on literary grounds. In discussion some of the group argued that the question of whether or not a work had literary merit should not be the critical feature when deciding about censorship.
With staged plays (and to some extent, with movies), protests by minority groups can effectively enact the ‘hecklers’ veto’. With the case of Behtzi a play that included discussion of sexual abuse in a Sikh temple, a group of protestors made it impossible for it to be performed in without serious risk of violence. Here one of the issues was an alleged defilement of a sacrosanct sacred space. There is no obvious solution that can both respect rights of free expression and protect those who believe that some objects, people and places are sacred and want to control how they are represented in the arts. The issue of who should speak for a community when freedom of expression is perceived as a threat by a minority is very relevant here.
The consensus of the group was clearly that freedom to explore themes that challenge potential audiences in ways that make them feel uncomfortable or annoyed is extremely valuable. The right to tell people what they don’t want to hear is a right worth preserving, particularly in relation to the arts.
Thanks to the Bishopsgate Institute, The Free Word Centre, English PEN and Index on Censorship,and our guest speakers Johathan Heawood, Jo Glanville and Gillian Slovo, for their involvement with this course.
We began with a revision quiz (the answers should almost all be available from notes from the previous sessions below). Download quiz. When you have had a go at the quiz, download Free Speech revision quiz with answers.
Blasphemy Trials in 19th Century England
The main part of this session focussed on some 19th Century cases of prosecution for Blasphemy. We examined materials relating to these cases from the Bishopsgate Institute Library archives. The library holds a fascinating collection of pamphlets, newspaper cuttings and other material relating to freethinkers and secularists.
Richard Carlile was tried in 1819 for reprinting Thomas Paine's The Age of Reason, a book which expressed a deist outlook and criticised the Church of England. Deists believed that God's presence was revealed in the natural world, rather than in holy writings or organized religion. Carlile was prosecuted for blasphemous libel and sedition and sentenced to three years imprisonment, but refused to pay a substantial fine, and so ended up in prison for 6 years (during which he continued to edit freethinking journals).
George Holyoake, gave a lecture in Cheltenham in 1842 at which he made some comments about God deserving to be put on half-pay. The result was imprisonment for blasphemy for 6 months (during his imprisonment his young daughter died). The Bishopsgate Library has an extensive archive relating to Holyoake.
Art and Censorship
In the second part of the session we focussed on the question of whether the arts should be censored and in particular on the most famous argument for such censorhip, Plato's in Book X of his Republic.
Plato on Imitation (Republic Book X)
'the art of imitation is the inferior mistress of an inferior friend, and the parent of inferior progeny'
Plato was perhaps the most anti-aesthetic philosopher of all time (in senses 1 and 3 above, at least). He gave much higher priority to truth acquired through reason than to the evidence of the senses. He also wanted to exclude art that involved representation ('mimesis') from his ideal state as described in his famous dialogue The Republic. [for a critical summary of the main themes of The Republic, including his views on art, listen to an audio file of me reading from my book Philosophy: The Classics 'Plato The Republic'- approximately 26 mins]
Plato believed that we are most of us misled into believing that we understand the world we live in: we are dwelling in the world of phenomena, of appearances, but reality consists of the Forms or Ideas. To get a sense of what he meant, think of an equilateral triangle. Your idea of the triangle is perfect in the sense that each angle is exactly sixty degrees, the sides are perfectly straight, and exactly the same length. If you try to draw an equilateral triangle or make one out of wood, it will always be slightly imperfect: it will never achieve the perfection of your idea of the triangle. In Plato's terms, the imaginary perfect triangle is the Form. But such Forms don't just exist for triangles and other geometrical shapes, they also exist for such things as a couch. The couch you see is an imperfect rendition of the Idea or Form of a couch as interpreted by a craftsperson. If someone then paints a picture of the couch, this will be even less perfect (and require even less knowledge of the Form of the couch than required by the craftsperson): the painting will be at two removes from reality (where reality is the Form). [for more on this see the extract from Plato'sRepublic in the set book]
One of the ways he explained this idea that reality lies beyond appearances was through the famous analogy of The Cave. Prisoners chained to the floor, look at flickering shadows which they take to be reality, but is in fact produced by light cast from a fire behind them in front of which people carrying cut-out shapes walk making shadows on the wall. When one of the prisoners escapes into the real world and turns even to face the sun, none of his fellow prisoners believe him when he returns to the cave. They still dwell in the world of mere appearances and are ignorant of reality. In Plato's view, it is philosophers who have the capacity, through reason, to understand the real world. Consequently he set them at the head of his ideal society, making them philosopher-kings.
Plato argued that representational art should be excluded from his ideal republic because it was fundamentally misleading about reality. Those who ruled needed to keep focused on the Forms and in particular on the Form of the Good. He was particularly worried about the corrupting effects of poetry, which often misrepresented the nature of the gods, and also the kind of first person poetic expression that encouraged a reader to identify with an evil person's viewpoint. So poets and painters would be politely turned away from the borders of his ideal society and those who attempted to practice these deceptive and corrupting arts within would be prevented from doing so. As Karl Popper pointed out in his book The Open Society and Its Enemies, this is an aspect of his totalitarian tendencies.
One of the best essays on Plato's views on art and censorship is Myles Burnyeat's in London Review of Books, 1998, reprinted in Nigel Warburton ed. Philosophy: Basic Readings 2nd ed., reading 53 'Art and Mimesis in Plato's Republic'
Listen to a podcast interview with Matthew Kieran on art, morality and censorship (transcript available from same link) - includes a discussion of Leni Riefenstahl's films.
Free Speech and The First Amendment
For this session of the Free Speech course Jo Glanville, editor of Index on Censorship gave a fascinating presentation on the First Amendment to the US Constitution and the contrast between how free speech issues are treated in the US and the UK.
Congress shall make no law...abridging the freedom of speech, or of the press, or of the people peacably to assemble, and to petition the Government for a redress of grievances.
We in the UK don't have a principled guarantee of free speech. One consequence of this is that many cases that are prosecuted here, such as the Twitter joke trial, would have been very unlikely to have been tried in the US (in that particular case it wouldn't have passed the test of there being imminent lawless action). The UK tends to employ extreme measures to curb speech in cases which would have been overthrown by the Supreme Court if tried in the US.
This emphasis on protecting a right to extensive freedom of speech embodies key ideas about the role of the people in relation to government in the US. It both gives real protection for a range of expression that goes far beyond what we would normally describe as 'speech', but also has great symbolic importance in preserving and celebrating individuals' rights to criticise government, and a recognition that free expression is essential to a thriving democracy.
Yet despite the uncompromising wording of the First Amendment, it was only through case law in the Twentieth Century that it became the powerful force protecting free speech that it is today. The Sedition Act of 1798 was a repressive law that sanctioned imprisonment for those who defamed government and was completely inimical to the First Amendment. The modern form of the First Amendment owes a great deal to two judges of the Supreme Court: Oliver Wendell Holmes Jr and Louis Brandeis.
One area where US law is far more tolerant than that in the UK is libel (though some US writers were prosecuted for defamation in the UK, President Obama has taken action to stem this libel tourism). English PEN and Index on Censorship have been actively campaigning to improve the UK libel laws and to give us more free speech protection than we currently have - read their excellent report 'Free Speech is Not For Sale'.
Until 1964 libel was not covered by the First Amendment. But a pivotal case New York Times v Sullivan changed that. The ruling was that 'libel can claim no talismanic immunity from constitutional limitations'.
Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (New York Times v Sullivan 1964)
Fear of prosecution for defamation might have prevented such journalistic investigations as those that led to the Watergate scandal and the leaking of the Pentagon Papers. But the downside of such legislation is that it tolerates abusive and racist speech. But it has also been criticised for creating a culture where shock jocks flourish and where it is extremely difficult for public figures who may not be politicians to defend their reputation.
When celebrating the virtues of the First Amendment it is worth remembering, though, that First Amendment rights have not prevented the US from the same sorts of problems in relation to Islam and free speech that have been encountered in the UK.
But, nevertheless, the US commitment to free expression, the view that it is better to tolerate repugnant speech than censor it, that clipping anyone's freedom potentially affects everyone else's freedom, and that governments are fallible and should be open to vigorous criticism, is both admirable and enviable.
[Reminder to students - NEXT WEEK WE ARE IN THE BISHOPSGATE CENTRE]
You can download (free) a pdf of a really interesting and accessible 62-page article by philosopher Jeremy Waldron on the topic of Hate Speech and the First Amendment. This has specific references and quotations from many of the key cases in First Amendment law. Waldron opposes the view that written hate speech should have First Amendment protection.
This podcast interview with the U.S. philosopher T.M.Scanlon on free speech touches on some of the issues Jo raised in her talk (there's also a transcript of the podcast available from the same link).
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):
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?
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.