More on freedom of speech

On the previous thread, relating to the Dawkins on Wilders post, Colin Gavaghan asks a good question:

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?

I'm tempted to answer the main question here by saying that near certainty is enough. Having thought about it, I'm not so sure. If the speech has some kind of social value, I think it should be allowed even if there's a near certainty that it will provoke violence. After all, the case for free speech goes far beyond the fact that the harm done by speech is always indirect (which leads the rejoinder that the direct/indirect distinction breaks down in marginal cases, and that there's at least a grey area where legislative discretion is appropriate). There's also a strong positive case for freedom of speech, which is a theme in Mill's On Liberty.

I certainly would not ban the Danish cartoons. But sometimes we have to make a value judgment and say that certain speech has no social value. Its only value is in allowing the speaker to let off steam. Conversely, it is highly likely to provoke immediate violence. So, if I get in someone's face, harassing and abusing him with the most hurtful comments I can think of, it's not surprising if he retaliates with violence. I think the state can do something about this for two reasons: first, this is a case where the sort of offence I am causing shades into harm (my expression is high impact, and is being inflicted on this person against his will ... and he has no easy way of avoiding it once it starts, not like turning a TV off or closing a newspaper); and second, it is predictably likely to provoke violence and disturb the peace.

I have quite deliberately broken with my usual practice here, and have written the presumptively sexist "he" and "him", because the violence is more likely if I'm picking on a man than a woman - though women can respond violently, too, of course. I'd prefer to settle this one on the blurring of harm and offence, as I'm (even) more motivated here to protect people from this kind of harassment than I am to keep the peace, but either way I'm happy for the state to have, and use, some discretion to ban the use of "fighting words" in people's faces.

In the fan-throwing-a-bottle sort of case, I'd prefer to leave it to the sports association concerned to make it a disciplinary offence for the player to make such gestures. That prevents the real legal system getting clogged up with such cases. Though the case may fall in the grey area, I think it's at the end where I'd prefer the law not be involved. In general, though, we needn't ignore what we know from history, psychology, etc., about the likely outcomes of certain provocations.

As I've said in the past, I'm not an absolutist about free speech. If someone can tell me why there is an exceptional and compelling need to prohibit a certain kind of speech, within the state's secular role of protecting its citizens and visitors to its jurisdiction (as opposed to enforcing morality or religion), I'm open to argument. In the past, I've seen the possibility of a compelling case to ban highly offensive "in your face" behaviour, especially of a racist kind where the degree of provocation is extreme and the social value is in the negative zone. I've also defended banning Nazi-like campaigns of racist propaganda that depict members of a certain "race" as vermin to be exterminated. If a country has reached a point where the society is getting like a powderkeg over racial intolerance, there may well be an exceptional and compelling need for the state to do something long before there are incitements to immediate violence. In theory, it doesn't have to be race: it could be another group such homosexuals, or a religious group, or whatever.

(Perhaps there's a case for Jamaica banning certain forms of rap music that relentlessly promote gay-bashing, but I don't know the facts on the ground there - I'll leave that one to Udo, who knows a lot about it.)

However, if we are going to make exceptions such as these, or whatever others may be the correct ones, we need to be very careful to ensure that there really is some compelling need in the situation of this particular society, and the compelling need is one that relates to protecting life, limb, physical liberty, and property - the sorts of worldly things that the state should concern itself with - and not to protecting (for example) belief in a religion or a traditional morality or even the "correct" morality, whatever it is ... or catering to populist sentiment. If we're not careful about that, we'll be back to burning heretics, banning Lady Chatterley's Lover, conducting the McCarthy trials, and on and on. As I said in a comment yesterday, there is always the prospect of disaster when the state thinks it's in the business of banning speech for its real or imagined indirect effects.

We also need to be careful that we don't enact laws that actually make things worse, by providing a new forum for mutually antagonistic elements to express their antagonism. Broadly-worded hate speech laws can certainly have the effect of making some minorities more despised, if they are seen as enemies of liberty. We've seen that recently in Australia, where the state of Victoria's religious vilification laws have probably increased, rather than decreased, anti-Muslim feelings in the community. If Wilders is convicted, it will probably make things worse, not better, for Muslims in the Netherlands. If the society is not already turning into a powderkeg, acting as if it is will likely be counterproductive as well as unnecessary.

With Wilders, this question could be asked: Is Dutch society such a powderkeg of hatred between Muslims and others that the country needs laws broad enough to make anything he's done so far a crime? Well, I'm not an expert on the Netherlands or its various social tensions. I can't give a definitive answer. I'll just say, though, that if that's going to be the excuse for putting him on trial merely for saying things, well ... I'm deeply sceptical.