By Jonah Berman
Free speech, the principle that people can express views without fear of consequence, has re-emerged as a topic of contention in Western societies.
As debates around unconscious bias, structural racism, gender identity and the legacies of colonialism have hit the mainstream, some fear free speech is under attack from ‘woke’ censorship.
While speech does not directly inflict physical or material harm as traditionally understood, it can do so in combination with social realities such as exclusionary stereotypes or in triggering past trauma. This has been the argument for ‘no-platforming’ that have propelled the issue into the mainstream. ‘Freedom of Speech’ is now at the heart of the Culture Wars.
Are fears that freedom of speech is being curtailed legitimate? Or are they part of a wider attempt to stifle discussion of progressive ideas?
Harm and offense
“The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” - John Stuart Mill
Mill’s liberalism is influential in mainstream Western thought, however there are different interpretations of what ‘harm’ refers to. Often Mill is taken to use harm to refer to an infringement of rights, which would impose only weak limitations on freedom of speech.
In On Liberty, he argues “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral”.
Such a view would suggest that speech in itself cannot be harmful. Of course, Mill would have opposed violence that followed from the expression of offensive or aggressive views.
Considerations of offense and oppression as forms of harm move the debate onto contemporary terrain.
“It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense…to persons other than the actor, and that it is probably a necessary means to that end…The principle asserts, in effect, that the prevention of offensive conduct is properly the state’s business” - Joel Feinberg
Here, Feinberg articulates the idea that people have a right not to be subjected to serious offense; laws against hate speech and discrimination are in the spirit of this offense principle.
Feinberg’s principle raises the question of what constitutes ‘serious offense’ - in answering this question we need to consider a historical perspective that isn’t relevant to Mill’s analysis.
The difficulty lies in that an infringement of rights, on Mill’s principle, is a legally defined act. Offense, on the other hand, is an emotional response that varies not only between peers, but across societies and historical eras.
This social nature suggests that to understand what constitutes offense, we need to grasp the social and moral psychologies of the relevant parties. For instance, jokes at the expense of white Europeans are less offensive (and less harmful) than jokes at the expense of certain minority groups because of histories of colonial and neoliberal domination.
That history has shaped an asymmetry of this kind is central to the current debates about free speech.
“I think all over the West we have a freedom of speech problem and that is terrifying” - Laurence Fox
The freedom of speech problem Fox refers to here is centred on his feeling marginalised as a white man. In a notorious episode of BBC Question Time, Fox accused an audience member of throwing “the charge of racism at everybody” in an attempt to prevent legitimate criticism of Meghan Markle.
In an ironic twist, Fox then claimed the audience member was “being racist” by calling him a “white privileged male”.
This exchange reveals that the concept of racism is defined differently from the left and right. Fox sees racism against the dominant culture as a distinct possibility (or even a probability in contemporary society); for those on the left, through the voice of this audience member, structural dominance is a key constituent of racism - the Left believes it is impossible to racist ‘upwards’ (towards the dominant culture).
Feinberg’s offense principle, in being more attentive to historical forces, lends itself to the leftist conception, whilst Fox would likely be more sympathetic to Mill’s analysis. Fox is more concerned with the speech at that moment, whilst the audience member is more sensitive to racism as a historical force.
“It isn’t really a debate about free speech; it’s a debate about acceptable speech” - Ellie Mae O’Hagan
O’Hagan accuses figures on the right of “shrewdly exploiting the important principle of freedom of speech to ensure their ideas are the prevailing ones in society, by claiming any challenge to them as oppression”.
Here, she suggests identifying and naming phenomena like structural racism or patriarchal structures will provoke defensiveness from conservative forces. This is clearly played out in Laurence Fox’s Question Time exchange.
This defensiveness arises from the left’s denial that dominant social groups can be victims of racism. The free speech issue arises as members of dominant social groups feel their voice is deemed illegitimate.
“When the populist right claim to be the standard-bearers of freedom of speech and expression, it is always a dishonest, cynical tactic. Take Nigel Farage’s reaction to Millwall fans booing their own team as they took a knee” - Owen Jones
In response to Millwall fans booing their own players taking the knee the first time they returned to their stadium, Nigel Farage labelled BLM “a Marxist mob” and said “there must be no more taking the knee”.
Farage himself has previously criticised people who “do not respect the fact that in a free society other people are able to have different opinions”. To many on the Left, including Jones, right wing claims to support free speech are only ever partisan: whatever we think about taking the knee, calling for its end runs contrary to the spirit of freedom of speech.
As Jones argues, Farage’s treatment of the free speech question is revealing in its contradictions and inconsistencies.
In the era of Twitter, Facebook and Instagram, claims that voices in the West are being silenced may not carry much weight, but these companies have recently responded to public pressure to intervene in the spread of fake news.
“So, you won’t take down lies or you will take down lies? I think that’s just a pretty simple yes or no.” - Alexandria Ocasio-Cortez
Facebook has come under intense scrutiny for its policy of allowing political advertising on its site without being fact checked. Ocasio-Cortez’s questioning of Mark Zuckerberg reveals her conviction that truth and democratic integrity are values that ought to supersede the rights of campaigning and political organisations to engage with voters without monitoring.
“Some or all of the content shared in this Tweet is disputed and might be misleading about an election or other civic process” - Twitter
This was the caveat attached to a number of President Trump’s tweets as he contested the 2020 Presidential election vote count.
After mounting pressure to intervene, Twitter and Facebook have targeted false claims about elections, and have taken down accounts that violated its manipulation policies.
The free speech debate primarily revolves around two axes.
The first is the competing notions of oppression and discrimination, and whether they should be understood from a short- or long-term perspective. Those on the right may have sympathies with the former, whilst the left maintain the latter, placing significance on structural concepts like systemic racism and the patriarchy at the heart of their analyses.
A structural understanding of oppression does not recognise the feelings of victimhood expressed by white men, for example, who subsequently feel their free speech is unfairly limited.
The second relates to ‘fake news’ and censorship. Social media companies have been pressured by governments and citizen groups to take action against what they deem harmful accounts. But is it right that private companies are the ultimate arbiters of free speech? Might their responses be driven by ideological or profitable motives?
These questions will ultimately come down to whether we regard respect and truth to be more important than the liberty to enter the marketplace of ideas.