‘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 Behtzia 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.
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]
The Forms 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'
What is philosophy? Who needs it? Writer and podcaster Nigel Warburton, Senior Lecturer in Philosophy at the Open University, discusses the relevance of philosophy to life today. From questions about the limits of free speech to the nature of happiness, from what art is to the impact of new technology, philosophy offers insights into questions that matter. Warburton will explore how the thoughts of some of the great philosophers of the past shed light on our present day predicament.
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.
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]
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).
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.
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.
Chapter Two of J.S. Mill's On Liberty (last week's focus) was undoubtedly influenced by John Milton's Areopagitica, a polemical tract published in 1644 in reaction to a 1643 Order of Parliament that proposed the licensing of books. Under this Order a censor would determine which books could be published, a return to the status quo of control of the presses that had been in place since the reign of Elizabeth, but which had temporarily been suspended following the revolution. Anti-Puritan tracts were in circulation and the Order was a reaction to what it labelled 'many false, scandalous, seditious and libelous' works that had recently been pubished 'to the great defamation of religion and government'. Read more on the historical context of Areopagitica.
Milton was strongly opposed to book licensing on both practical and moral/religious grounds, though not to post-publication censorship and punishment (for illegal libel and blasphemy, which was also illegal). Many passages in Milton's book echo phrases and ideas in Mill's chapter. This is not to say that Milton's is a straightforward defence of freedom of speech - it is much more specific than that: a reaction to a particular law and a robust statement of the value of books broadening out from its specific theme.
I love this passage from Milton:
For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous dragon's teeth; and being sown up and down, may chance to spring up armed men. And yet, on the other hand, unless wariness be used, as good almost kill a man as kill a good book. Who kills a man kills a reasonable creature, God's image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye. Many a man lives a burden to the earth; but a good book is the precious life-blood of a master spirit, embalmed and treasured up on purpose to a life beyond life.
One key difference between the two writers is that Mill was an atheist from an early age; whereas Milton was religious and believed that each individual was responsible for his or her religious beliefs - this view of MIlton's motivates much of Areopagitica.
The title 'Areopagitica' alludes to the rocky area outside near the Acropolis in Athens where the democratic council of the city state would meet to decide law and policy. So Milton was appealing to a vision of a democratic parliament making just laws through free and open discussion.
Alan Haworth, in his bookFree Speech (Routledge, 1998) has provided a useful Appendix in which he quotes parallel passages from Mill and Locke. Although Mill gives the thoughts his own twist, there are obvious echoes both in language and ideas. To give a few examples:
…how shall the licensers themselves be confided in, unless we can confer upon them, or they assume above all others in the land, the grace of infallibility and uncorruptedness?
Here's Mill on the same theme:
All silencing of opinion is an assumption of infallibility. It's condemnation may be allowed to rest on this common argument, not the worse for being common.
Or again, Milton on the value of contrary opinions, and the morally purifying effects of contested opinions:
I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary, but slinks out of the race, where that immortal garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather: that which purifies us is trial, and trial is by what is contrary.
Mill on the idea that adverse opinions serve to bring out the truth on any matter:
...though the silenced opinion be an error, it may, and very commonly does, contain a portion of the truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.
For more in the same vein, see Haworth p224-8, or read Areopagitica and then Chapter 2 of On Liberty.
For fascinating information about the original context of Milton's Areopagitica watch this lecture (by John Rogers, Yale University):
J.S. Mill and The Internet
Are Mill's arguments good arguments? Do they apply today? Many of Mill's views can themselves be challenged. Certainly in present day discussions of free speech, the truth of the view that is suppressed or censored is not necessarily what is at issue. Very often censors deliberately suppress what they consider to be dangerous truths, knowing full well that these are truths (the numbers of students killed in Tiananmen Square, for example), or else the issue may well be one of respect, particularly in a religious context.
Not all censors assume infallibility: some just think they are almost certainly right, which is not the same thing at all.
Does this mean that Mill's arguments are no longer relevant to the present day context. The most important development in recent years is the combination of the Internet with widely available digital technology.
Richard Posner in an essay in the interesting US-focused collection Bollinger and Stone (eds) Eternally Vigilant: Free Speech in the Modern Era has identified 4 features of the current use of the Internet that may be thought to magnify the dangers of irresponsible speech:
Lack of quality control
Huge potential readership
Anti-social people find their soul mates
Cass Sunstein (also in an essay in Bollinger and Stone (eds)) has expressed a further concern that Internet users filter the content they encounter to create a 'Daily Me' which simply confirms their prejudices for the most part. A deliberative democracy needs people who encounter views that are different from their own...
Do these factors mean that there are both qualitative and quantitative features of the new media that make Mill's earlier framework for establishing reasonable the limits of freedom of speech obsolete? Further reading on this topic: Nigel Warburton Free Speech: A Very Short Introduction, Chapter 5 'Free Speech in the Age of the Internet'.
Two recent events involving incitement to violence and xenophobia formed the focus of our discussion...
First, the case of an extremist website that seemed to be inciting violence against MPs who voted in favour of going to war in Iraq. (An update on this story here)
A different case from last week's news: a German neo-Nazi internet radio station was shut down. Neo-nazism is illegal in Germany. Does xenophobic expression constitute incitement to violence? Is it right to censor such expression? Or should it simply be met with counter-speech?
Mill's little book is the classic statement of a liberal position on free speech. The second chapter 'Of the Liberty of Thought and Discussion' is still the starting point for many discussions of this topic.
Mill was a consequentialist (consequentialism is a general name for moral theories that judge the rightness of an action on the basis of probable outcomes rather than absolutes) who believed that individual development and flourishing required freedom. He was concerned to counteract both the curbing of individuals' activities by paternalistic laws and also bywhat he called 'the tyranny of the majority', the force of public disapproval. In order to flourish, he believed, geniuses need space in which to live their lives without interference, even if that offends, or worries those around them. But so does every adult who is in a position to decide for him or herself (i.e. is of sound mind and is not a child).
The limit of freedom for Mill was the point were an individual's actions risked harming other people. This is his so-called Harm Principle, and he applies it throughout the book.
In Chapter 2, he gives 4 main arguments as to why free speech should be tolerated and even encouraged up to the point of inciting violence. For Mill, even false opinions have great value, perhaps more value in some cases than widely-held true ones as they stimulate discussion and deeper understanding of what might otherwise be mere dead dogma. It is through the collision of truth with error in the marketplace of ideas that humanity flourishes and progresses. Here's his own summary found towards the end of this chapter (p.115-6 of the Penguin Classics ed.):
We have now recognized the necessity to the mental well-being of manking (on which all their other well-being depends) of freedom of opinion, and freedom of expression of opinion, on four distinct grounds, which we will now briefly recapitulate:
First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume your own infallibility.
Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never thew hole truth, it is only by the collision of adverse opinions that the remained of the truth has any chance of being supplied.
Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly,the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering hte ground and preventing growth of any real and heartfelt conviction from reason or personal experience.