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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Tuesday, January 26, 2010

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.

23 comments:

Charles Sullivan said...

"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."

In this case I think the person on the receiving end may have good reason to believe that the abusing person could suddenly become violent, especially in close quarters and if in-your-face yelling is involved.

In that case a preemptive violent strike could be justified.

steve said...

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?

And if it is such a powderkeg, how did it get that way ?

Was it similar laws or social conventions restricting the criticism of bad ideas ?

Will more of the same just make it worse ?

It's a slippery slope restricting free speech.

I think the default position for free speech has to be "any thing goes" and a very strong case needs to be made for any restrictions.

Free speech is a powerful weapon in the hands of the weak. For example, civil rights movements would have been impossible without the power of speech to offend the moral and legal status quo.

An excerpt from an article by a Canadian Gay Rights group, coming to the defense of a homophobic xtian minister being censored by a Canadian "Human Rights Commission":

http://www.egale.ca/index.asp?lang=E&menu=12&item=1245

... If Boissoin was no longer able to share his views, then who might be next in also having their freedom of expression limited. Traditionally, the LGBT community’s freedom has been repressed by society and its laws.

Plus, it is far better that Boissoin expose his views than have them pushed underground. Under the glaring light of public scrutiny, his ideas will most likely wither and die.

Daniel said...

Nice read, I'll think on this later. But for now, happy Australia day mate, go have a beer or 5. CHeers!

ColinGavaghan said...

Thanks for taking the time to post this, Russell. I guess my concern would be that a harm-based law may create a perverse incentive for offended parties to manufacture a compelling need, by (plausibly) threatening violence.

The worst case scenario, for me, would be one where only those possessed of the most incontinent passions have their sensibilities protected, while the more reasonable among us just have to grin and bear it.

Roger said...

"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?"

If that is so, then Wilders' own demand that the quran be banned as hate-speech is surely justified-although saying that is likely to exacerbate things even more andso need forbidding!

Mark Jones said...

Interesting thoughts on a difficult area.

Hate speech legislation actually generating *more* hate is a consequence that needs examining.

Greywizard said...

I agree with Colin Gavaghan. If free-speech were governed by laws forbidding any speech that is immediately liable to lead to violence (whatever that might mean), it would be easy for people to restrict speech by threatening violence. This has already happened, even without a law. People are already self-censoring because of feared violence. My guess is that the only reasonable way to deal with this is to forbid violence in response to speech acts, and to punish such violence with with deterrent severity.

That does not mean that any speech should be legal, though the limits should be governed by the harm that someone might do to others (other than the speaker, that is, which includes publishers, printers, businesses, etc. who help to disseminate the speech) as a result of the forbidden speech. I am not an absolutist regarding free speech either, but it would be difficult to delimit, accurately, the type of speech to which a reasonable person might legitimately respond with violence.

Part of the problem here is that Western society has largely ceased to be based on honour and shame. Though there are remnants of it inscribed in Christian and Jewish scriptures and traditions, it is not nearly as prominent, even there, as it is in the Qu'ran, and in Islam generally. And therein lies a serious problem, I think. What seems reasonable in an honour-shame context is very different to one in which questions of honour are largely replaced by ideas of guilt or innocence.

Shatterface said...

In the UK we are seeing censorship - and increasingly SELF-censorship justified not on the grounds that speakers will provoke their SUPPORTERS into committing violent acts but their OPPONENTS.

There's a difference between banning homophobic rap in the belief this would lead to homophobic acts - though I'd like to see strong evidence this might occur first - and banning cartoons because those offended will be provoked into violent rage.

The latter both excuses those who commit violence *and* blames the victim.

Peter Kemp said...

The reasonablness that Colin mentions can only be applied in respect of self defence. Self defence for example is often codified (in NSW s418 Crimes Act). The self defence must be "conduct [that]is a reasonable response in the circumstances as he or she perceives them." ie subjective test.

So, a violent act in response to a hand gesture can never be self defence or justified at law because its not reasonable, nor proportional. At sentence the hand gesture will be "provocation" which can only mitigate culpability (to whatever degree) in the offender--but it is not in itself a defence.

Re: "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."

Indeed, there may well be violence in those circumstances but such conduct if causing some degree of fear in the victim is prima facie evidence for a common assault charge and again the self defence issue as above arises. A second assault ie assault occasioning actual bodily harm in response to the 1st common (verbal)assault would almost certainly never qualify as self defence.

In essence, the criminal law provides much illumination as to when "free speech" goes over the top towards criminal liability, and at the same time with self defence law, how responses to initial provocation are limited by reasonableness considerations (onus on the self defender to prove beyond reasonable doubt s419).

Hope that helps, I'm a solicitor in NSW :-)

Peter Kemp said...

Oh, I forgot the 1st part of self defence:

"A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person,..."

Clearly a hand gesture does not require a person to "defend himself or herself" with physical violence.

Colin said...

Hi, Peter. I wasn't really thinking in terms of reasonableness being used a defence by the violent, offended party - in fact, with hindsight, maybe I shouldn't have used the term at all, is it probably just confused matters.

Rather than mitigating the culpability of the violent offended, what I was musing about was whether, and when, a plausible threat of violent response would provide a sufficient, harm-based justification for the proactive curtailment of free speech.

If the mere predictability and severity of violence is sufficient basis, then it incentivises the more volatile and fanatical elements of our community to respond aggressively (either with threats or actual violence) to anything which offends them.

Alternatively, we may think - as Russell apparently does - that sometimes the state should endure the possibility of violent harm in order to safeguard certain excercises of free speech. But that moves us into an arena wherein the state must assume the role as judges of what speech is sufficiently important - itself a problematic position.

I'm not sure I have any better suggestions, tbh, but when we abandon the completely libertarian position (and I'm not saying that we shouldn't) then the waters become decidedly murkier.

Russell Blackford said...

That's true, Colin, though I've never taken the position that there is always a right and wrong answer as to what the state must/must not do. I think the state should have a margin of appreciation within the grey or murky areas that we can identify. Even if we take the most pure Millian position, there will still be questions of judgment as to when a case is or is not sufficiently like the corn dealer example.

But the existence of grey areas does not mean that black is white. In many cases, the situation is absolutely clear. For example, I think it's absolutely clear that Fitna should not be banned, and it seems that no one in authority in the Netherlands is arguing that Fitna by itself should be enough to attract government intervention. Hopefully we can all agree on at least that much.

Are you reading this, Ophelia? I'd be interested in your thoughts if you are.

Colin said...

Hi Russell,

Is that because

(1) you don't think Fitna will, in fact, provoke a violent response?

(2) you believe that it has such redeeming social value that we should put up with that even if it does? or

(3) that there is substantial social value in refusing to be blackmailed by fanatics, even if that means permitting some works of no great literary merit that will, in all probability, be met with a violent reaction (the Danish cartoons, for example)?

Colin said...

(Btw, lest it seem otherwise, I'm shamelessly using you as a scratching post to sharpen my own thoughts here, not trip you up!!)

Russell Blackford said...

All three. But really, the obvious way for the state to protect us and keep the peace is to ban the actual violence, not to ban things that may or may not lead to violence down the track. I like the corn dealer example in Mill, because the danger to someone is immediate, given the facts of human nature. I want the police to be able to step in and break things up here. But the situation is very different in the speech is in a newspaper. The police can step in when a lynch mob actually appears in the corn dealer's neighbourhood, which may never happen.

As I said (and this was kind of in concession to Ophelia) I think that all these jurisprudential principles can be stretched in exceptional and compelling circumstances. If there's a Nazi-like campaign being waged against a group, and the likelihood of an act of genocide is becoming clear, I think it's kind of precious for the state to do nothing about it. I think we can learn from history and look at likely consequences of letting things go.

I also realise that some people may suffer a very visceral response to Fitna, so for them offence shades into harm. But they are not stuck on a train with no real choice but to watch the thing, like in the bucket of vomit on a train type of example, and we can't allow the tyranny of the sensitive - we can't ban things just because someone is upset that they are happening elsewhere.

Colin said...

Hm. I must admit that I'm struggling a little to draw a clear distinction between Mill's corndealer and other examples. Take my earlier example, of the provocative footballer:

http://news.bbc.co.uk/sport2/hi/football/teams/c/celtic/5287664.stm

Now part of me wants to say that responsibility for any ensuing violence belongs squarely with the idiots who perpetrate it. But as Strathclyde polis would tell you, in the volatile-going-on-volcanic atmosphere of an Old Firm derby, a violent response to Boruc's gesticulations wasn't just predictable, it was pretty much a racing certainty!

My own instinct is that this example lies on one side of the line, and the corndealer on the other, but the immediacy, gravity and likelihood of the harm are not obviously distinguishable. Is it the fact that the risk is posed primarily to the 'speaker' himself, rather than a third party, that makes the difference (as Shatterface suggested earlier)?

Colin said...

I guess part of my problem with the Boruc caution lies in the failure to attribute any real degree of rational agency to OF football fans (of which I count myself an example, if not a typical one), who are expected to behave like Rage-infected monkeys from 28 Days Later, unable to contain their emotions to the level we would demand of a 2-year-old. Alas, the reality over the years has probably done little to dispel this image ...

Peter Kemp said...

Colin re:

"what I was musing about was whether, and when, a plausible threat of violent response would provide a sufficient, harm-based justification for the proactive curtailment of free speech."

Isn't that analogous to the scenario of a crime being committed and a raging crowd looking for the offender, and some innocent idiot is pointed out? Should the state, (ie in the person of a police officer) allow such a person be "crucified" knowing that without such a scapegoat, a riot will kill many more people? My rusty knowledge (from study of jurisprudence)of Robert Nozick's utilitarian arguments (with Kantian side constraints) says that an individual can never be sacrificed for a utilitarian benefit. Likewise the curtailment of free speech (of an individual) can never be sacrificed for the utilitarian value of preventing violence.

Hope that makes sense, on the 3rd bottle of homebrew :-)

Ophelia Benson said...

I am reading, Russell - belatedly.


"But the situation is very different in the speech is in a newspaper. The police can step in when a lynch mob actually appears in the corn dealer's neighbourhood, which may never happen."

Yes - but it's different again when the speech is on the radio or tv. The precedents that haunt me were indeed radio - Serbian state radio, and Radio Mille Collines in Rwanda. The effects are faster, and more visceral, and more widely available. In Rwanda there wasn't time for the police to step in - and there weren't enough police to do the stepping anyway. Rwanda is perhaps a special case...but it's not all that special!

"If there's a Nazi-like campaign being waged against a group, and the likelihood of an act of genocide is becoming clear, I think it's kind of precious for the state to do nothing about it. I think we can learn from history and look at likely consequences of letting things go."

I think the horrible thing about Rwanda (for this tension) is that by the time the likelihood of multiple acts of genocide had become clear it was way way too late to stop it. This fact all by itself scares the crap out of me - I don't see how to react to it without proposing horribly anti-free speech restrictions. I don't think the Netherlands or Denmark or the UK is anywhere near that, but what I do think is that liberals who live in places that are not anywhere near that can misjudge the probabilities in other places.

Chris Lawson said...

Ophelia, I know this is a little OT, but in fact the Rwandan genocide could have been stopped. The conflict brewed for 4 years before the massacres started. In that time Hutu Power propaganda was openly advocating genocide and openly stockpiling weapons for this purpose. When the massacre started, the UN could have sent in a peacekeeping force. Instead they sent in an army with orders never to open fire until fired upon, which made them unable to intervene to protect anyone but themselves -- and as the Belgians found out, it didn't even help with self-protection.

France didn't want the Anglophone Tutsis to win over the Francophone Hutus and used their veto power to cripple the UN forces.

Mike Barnes said...

Surely the premise here is too restrictive, i.e. "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? "

This will - and has - lead to endless arguments about what constitutes harm. And anyway, why should such outlawing be "harm-based"? How could harm be proved? Over what period would harm have to show itself?

The better approach is where there's an intention to offend without any possible countervailing justification.
Prosecuting racist 'speech' has worked in the UK without any noticeable additional decrease in civil liberty. It's helped make racist abuse less acceptable in public - no fan knows when the guy next to him may be a police officer or even club official.

E.g. from a local paper, 2009:

'A football fan racially abused a Lincoln City player because of a bad tackle during a game, a court heard. Michael Windmill visited Sincil Bank to watch Notts County play the Imps on September 29, after being invited along by friends.

Lincoln Magistrates' Court heard Windmill thought a tackle made by a black City footballer was unfair and shouted a four-letter racist comment at him. Prosecutor Jim Clare said a club steward watched as Windmill made the slur.

"In line with club policy, he escorted Mr Windmill outside the ground, identified him to police and he was arrested."

In a statement read out in court, Lincolnshire Police deputy football intelligence officer PC Karl Williams said Windmill told him afterwards: "I know what I said, it was spur of the moment. I know I should not have said it."

Windmill, of Theresa Court, Balderton, near Newark, pleaded guilty to one offence of racially aggravated public order. He was fined £180 and ordered to pay costs of £85, plus a £15 victim's surcharge.'

This is not curtailing anyone's freedom but making life slightly less unpleasant for minorities.

So far this law - as far as I know - has never impinged on anyone's right to criticise religion, or the religious. Thus the balance seems roughly in the right place.

Too much is being lumped into the term 'free speech'. Surely a fan yelling a racist comment barely qualifies as speech at all? The worst racism in grounds often centres on chanting. Is that form of 'free speech' really worth protecting, at the cost of distress to already-put-upon minorities?

Ophelia Benson said...

Chris,

"In that time Hutu Power propaganda was openly advocating genocide and openly stockpiling weapons for this purpose."

Right - and "openly advocating genocide" presents problems for free speech.

Russell Blackford said...

No, Mike - the fundamental purpose of the state is not to protect us from mere offence. We need the Millian harm principle, however elaborated or qualified it has to be.