Over at RichardDawkins.net, Richard Dawkins has a long comment on a thread about the trial of Geert Wilders (the thread involves three articles on the subject: a piece in the New York Times, my post from a few days ago, and Jerry Coyne's earlier post, which tipped me off and to which I tipped my hat).
Dawkins concludes, at comment 75:
Why is this man on trial, unless it is, yet again, pandering to the ludicrous convention that religious opinion must not be 'offended'? Geert Wilders, if it should turn out that you are a racist or a gratuitous stirrer and provocateur I withdraw my respect, but on the strength of Fitna alone I salute you as a man of courage, who has the balls to stand up to a monstrous enemy.
The entire comment is worth reading. Dawkins praises Fitna for its artistic choices and relative restraint when dealing with horrific material. See also comment 77, by "Drosera", who is critical of Dawkins: "You seem to think that the enemies of your enemies are your friends. Maybe that is not a very rational thing to do."
Dawkins replies to this at comment 81,commencing: "I did no such thing. I explicitly stated that my endorsement of Wilders should be withdrawn if he turned out to have made racist or otherwise objectionable statements." He concludes: "In Fitna, taken on its own, I have found no cause to put Wilders on trial or even to censure him in any substantial way."
I wholeheartedly agree with that final sentiment. Leaving aside any other accusations against Wilders, there is nothing in Fitna itself that should result in any sort of criminal prosecution, and nothing there which, taken out of the context of other statements, policies, and so on, by Wilders, merits any significant moral denunciation. Again, I don't suggest that Wilders is a nice guy or a good role model or that his proposed policies are in any way defensible or even workable. But he should still have a robust right to freedom of speech. That right should end with direct and specific incitements to violence that are likely to create immediate lawlessness (or at least with incitements that cannot practically be replied to in any way short of legal prohibition). I remain totally unconvinced that anything Wilders has said even goes close.
About Me
- Russell Blackford
- Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).
12 comments:
"That right should end with direct and specific incitements to violence that are likely to create immediate lawlessness (or at least with incitements that cannot practically be replied to in any way short of legal prohibition)."
You've said this a few times now, but I don't think I fully understand the reasoning behind this point. Why would committing violence be the only crime that you aren't allowed to incite? Is it OK to incite any other crime, as long as it's not violent? For example, is it free speech to tell people how you should commit insurance fraud, or which insurance companies are the best targets?
If not, and if we assume that discrimination is against the law, then why is it free speech to tell people which group should be discriminated against?
"I remain totally unconvinced that anything Wilders has said even goes close."
I translated a few of the comments that are included in the complaint against him back in the other thread. None of them directly call for violence, of course. But the pattern of threats to all Muslims ("renounce the Quran or be deported") is clear enough. Coming from an MP who is the head of the fastest growing party in the Netherlands, I can't see how this could be anything other than threatening to Dutch Muslims.
It's worth observing that Wilders himself advocates banning "hate speech" in the form of the Quran. That shouldn't diminish the full legal protection of speech he is entitled to when the worm turns, but I hope it would give people like Richard Dawkins pause before writing that Wilders is a "man of great courage," which would imply that he could take as much as he could dish out.
I also think we should avoid taking the claim on face value that this trial is about the taboo against offending religions. It's partly about that, of course, but the primary principles underlying the charges are the ones Russell mentions, dealing with incitement to violence. I agree with Russell that we should set the highest possible standard for "fighting words" and that Fitna doesn't really come close (though I disagree it calls for not "moral dencunciation"), but the Court appears to be concerned not about hurt feelings, but about real violence and persecution and I think it's disingenuous for Dawkins to pretend otherwise.
Further to what Deen said, I always have a problem with this kind of claim:
"That right should end with direct and specific incitements to violence that are likely to create immediate lawlessness"
It's Mill and the mob and the corn factor again, but I'm always uneasy with it. Why is only immediate lawlessness covered? What about violence tomorrow or next week?
We know this isn't abstract. Speech really can stir people up to kill their neighbors, and it doesn't happen in five minutes - at least not unless there's been a slower process leading up to a final five minutes when the voice on the radio shouts "It's time to kill them NOW!"
Rwanda and former-Yugoslavia are horrible illustrations of this.
I wonder what kind of broadcasting is going on on radio stations around Jos, Nigeria right now...
(I'm not saying there should be laws against all forms of "hate speech" - I'm saying I'm not a bit sure immediate violence is the only possible cut-off point.)
It's only immediate violence because, generally speaking, that's the only circumstance in which the need to take action is so urgent that there's no alternative, such as counterspeech from the state or members of the public. (I always leave open the possibility of some other equally urgent situations: I'm not a fetishist about it.) Such a situation is pretty much the equivalent of direct harm, and so conforms closely to the spirit, if not the letter, of the harm principle. If we started letting the state ban things because they cause indirect harm, the actual harm being done later by someone else, we open the floodgate of things that can legitimately be banned. All sorts of things can cause all sorts of harms indirectly, and goverments are very fond of speculating about what might be harmful via an indirect process.
The corn dealer example shows how the line between direct harm and indirect harm can be blurred if the time between act and harm is sufficiently compressed (and it's also possible to come up with examples where the line between harm and mere offence is blurred if the offence has a sufficiently high impact, such as somebody bring an unsealed bucket of vomit onto a train). But once we're out of that grey zone the state has enormous resources to combat harms that it thinks might arise indirectly, without using outright prohibitions. It can use taxes, advertising campaigns, and Zeus knows what else. Of course, it can also ban the direct acts themselves.
If the state follows the harm principle, it's the best guarantee invented so far that it won't try to take over our lives, basing itself on some kind of utopian project, or on some sort of religious morality, or on some other sort of reasoning that gives it enormous capacity to ban all sorts of things, or on mere populism.
And, yes, Deen, nothing you have posted, quoting what Wilders has said, even goes close to the corn dealer situation. (I can't even see much evidence that he has incited breaches of any current Dutch laws relating to discrimination; perhaps he has somewhere, but the worst of it seems to be advocacy that the law be changed, which is a totally different thing from advocating its breach. In fact, it's political speech, the sort of speech that should, if anything, have the highest level of protection.)
Some of Wilders' policies seem very unpleasant, but in a democracy he should have the right to advocate changes to the law and others should have the right to oppose them.
Of course, there are other situations where something must be done about speech; I've discussed defamation law in other posts. Then there's trade practices law. But these are specific situations that usually don't involve the criminal law, and I've always argued that defamation law in particular should be narrowed. Overall, I'd make as few exceptions as possible to Mill's classic analysis in On Liberty. It's not holy writ, the lines could theoretically be drawn somewhere else other than where Mill draws them, but I think its partial acceptance in modern societies serves us well in many ways.
I don't have time to discuss it all here, but the harm principle also dovetails very nicely with the essential point made by Locke about religious tolerance. As a general rule that's hard to apply with no exceptions in a post-industrial society (as I'll explain in my book if it's ever published) but still makes rough sense, those things that are legal in wider society should be legal in church; but those things which are illegal in wider society should be illegal in church.
To work, this principle needs to be backed up by something like the harm principle - and Locke realised this, and did back it up with something like the harm principle. Where he went wrong, though, is that he was prepared to count all sorts of merely indirect harms. This allowed him to argue that atheists should be persecuted, because atheism supposedly undermines the bonds of civil society. If atheism thrives, Locke thinks, there'll be many people whose oaths can't be trusted, with disastrous results. Locke thought that many socially pernicious doctrines could be suppressed by the state because of their potential for indirect harm.
Note that anyone who believes that the state should ban things because they may speculatively cause indirect harms can argue for the prohibition of atheism - or any other unpopular or supposedly pernicious view - along similar lines to Locke. It's a very popular belief that Locke was essentially right about atheism, even though the actual evidence seems to point in the opposite direction.
I'd rather the state concentrate on enforcing laws against direct harms than that it try to identify speech or viewpoints that cause indirect harm and try to suppress them. I think this is both principled and pragmatic. When the state starts suppressing speech and viewpoints, the result is usually disastrous.
Hi Russell,
Thought-provoking as always, but I'd like to ask a vit more about the nature of the relationship between speech and harm. Would it, for you, be sufficient that a particular exercise of free speech would, with something close to certainty, be causally implicated in serious acts of violence? Or would there have to be a 'reasonableness' component, along the lines of 'no reasonable person would be driven to violence by this'?
Of course, I'm thinking of the assorted 'provocations' of violent Muslims (the Verses, the Danish cartoons, etc), but closer to (my former) home, various football players have been accused - and in one notorious recent case, investigated by the police - for 'provocative' gestures on a footbal field, esp in the context of volatile derby matches.
My thinking has always been that the fan who throws a bottle because a player made a gesture should bear legal and moral responsibility for his actions. But is there - and if so, when is there - a plausible harm-based justification for outlawing gestures/comments that would, to a reasonable person, be innocuous, but which will, predictably, in the real world of irrational people, lead to violence?
Cheers,
Colin
within the simplicity we seek to explain all things we bury to complexity of its development.
I left some loose ends, I'm sure, from Chris and Ophelia and possibly Deen ... and Colin has raised an important issue.
I think it will probably take me a separate post to address (some of) them. Meanwhile, I'm interested in further comments from any of you ... or from anyone else.
My very brief answer to Colin is that we shouldn't fetishise the "direct"/"indirect" distinction. The work being done by those words relates more to the urgency of the need to prevent the words being spoken, or whatever the expression is, and we do have to take into account human psychology, including the fact that some people can be enraged by provocative acts. All this gives governments some room to move at the margins. The corn dealer situation isn't the only one where I'd say the government has some legitimate room to move, though I don't see Wilders' speech (and certainly not Fitna in isolation or even the comparison between the Koran and Mein Kampf) as falling into some other situation where an urgent need to avert harm justifies prohibition. However, the urgency had better be genuine, not speculative.
But I need to say something less general and cryptic about this.
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I think Ophelia's critique is just that Mill makes it seem much easier than it really is to apply the Harm Principle. In the US--perhaps also elsewhere--we use the metric "clear and present danger," but this is in the end an interpretative category.
We don't have a precise enough science of behavior to say how long an act of incitement takes to "wear off" on its own, or with what quantity of opposing speech, however quickly applied, to easily distinguish between direct and indirect harm. We have to draw the line somewhere, but it should bear some relation to the actual, not ideal, impact of the exchange of speech and ideas. (I still agree that nothing in Wilders' corpus seems to rise to the level of a "Clear and Present Danger.")
There is also the question of equal access to media, which Ophelia raises in her example of radio broadcasts. If there is unequal access, as there is in most societies, should there be some kind of countervailing "affirmative action" of the harm principle? We already endorse this idea when we allow that state agents have greatly reduced protection against libel than ordinary citizens. Would it be completely ungrounded to lower the standards of harm to become more "indirect" among the disenfranchised, by the same token?
@DEEN,
I think there remains a distinction between "crimes of passion" and those of calculation that make the notion of "incitement" to fraud, embezzlement and similar crimes less of a concern.
Some people would even consider it a service to publish the best techniques for insurance fraud, or the most vulnerable companies, because it would provide a critique the industry could benefit from. (Think of IT firms hiring hackers to try to break their security systems so they can identify their weaknesses.
"But once we're out of that grey zone the state has enormous resources to combat harms that it thinks might arise indirectly, without using outright prohibitions. It can use taxes, advertising campaigns, and Zeus knows what else."
This reminds me of not-so-democratic states where the government puts a high tax on printing paper, thus raising the price of independent newspapers (while silently subsidizing the regime-friendly ones). That's the continuation of censorship by other means.
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