Whose Free Speech?
Now that the legal stand-off between Ms Cherry and The Stand has been resolved with the latter accepting that it had unlawfully discriminated and reinstating the event, it is worth considering what this issue tells us about attitudes to free speech and Equality Act rights.
First – and very importantly – it goes without saying that if a venue discriminates against someone with views wholly opposed to Ms Cherry’s (a transgender writer, say) on the basis that some staff disapproved of their “beliefs” or thought them anti-women or felt “unsafe“, this would also be unlawful and wrong and should not happen. Saying this should not – and does not – depend on agreeing with the views of the person being discriminated against.
If only! It is pretty much a racing certainty that those applauding The Stand for its initial cancellation and deploring its climb-down would be outraged at the same thing happening to someone whose views they agreed with. People’s views on free speech do not, it seems, flow from any clearly enunciated and consistent principles. Nor do they pay any regard to the law. For far too many, speech should only be permitted if it is speech they agree with.
This is an issue which has been around for centuries. We saw it with the Rushdie fatwa when, surprisingly, a lot of people one might have expected to have spoken up for a writer in a Western country threatened with a religiously-mandated death by a cleric in a foreign country, a threat supported by many of the writer’s fellow citizens, sought to justify or explain away the threats by claiming that “offence” had been caused, those so offended came from a different “culture” and that culture and religion must be respected. It was a dismal sight. It might have had the virtue of honesty if those making these specious claims had admitted they were scared and did not wish to be threatened with death either.
The whole wretched episode also introduced us to the suffix “phobic”, which could be handily attached to whatever belief or category of people needed to be rendered beyond challenge. A new sacred caste could be created and those objecting cast as “phobics”, the 21st century’s version of “heretic”. How marvellously convenient! This pusillanimous reaction manifested itself repeatedly in the decades that followed. The latest iteration will not be the last.
There have been common reactions: an admission (often shame-faced) that what has happened is censorship but that the safety of staff, audiences and others is more important. Lately, there has been a refusal even to admit to censorship. Rather, the focus is only on the “suffering” endured by whichever group is complaining, their “safety” and the overriding obligation to avoid giving them “offence”. Those who object or point out what the law requires are described as “phobics” or “bigots” thus making it, at least in the minds of those doing it, wholly unnecessary to engage with their arguments, listen to them or pay any attention to the law’s requirements.
What all the different objections over the years amount to – however they are described (“blasphemy”, “hurt“, “offence”, “feeling unsafe” or “bigotry”)– is no more than “I do not want to hear opinions I disagree with”. Sometimes, it is grudgingly accepted that people might be allowed to believe such things but should certainly not be allowed to express them in public. It is said that no-one has a right to a platform. True. But it conveniently misses the point that the platform does have obligations to comply with UK anti-discrimination and equality laws. It also ignores the fact that it is not simply freedom of belief which is protected but freedom of expression also.
What is also noticeable is the almost total disregard for what the law says, despite the endless focus on “human rights”. The European Court of Human Rights in Handyside v The United Kingdom set out very clearly what the principles of free speech and free expression mean.
“The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.” [Emphasis added]
What this latest incident shows is that these principles – and the laws enacted to make them a reality – are not really valued as they should be, most worryingly, by politicians. Little wonder others disregard them also.
There are two immediate consequences:
(1) People go to law to enforce their rights. (Worth noting there have been at least 5 previous cases on unlawful discrimination on the grounds of belief, 3 of them in Scotland.) But (2) even when they win, those legal decisions are often ignored or misconstrued, whether deliberately or in ignorance.
What we are also now getting are claims that using the law to enforce one’s rights or to prevent unlawful discrimination is a form of bullying. It is as if those doing it do not want some people to have rights – or these rights – at all. Universal human rights are not, apparently, meant to be universal at all. The other complaint is that requiring staff not to carry out or facilitate acts of unlawful discrimination is, somehow, a form of intolerable servitude. What can also be expected are attempts to prevent lawful events from going ahead at all – not simply protests about them – the “heckler’s veto“ – which can itself amount to unlawful discrimination.
There is a more fundamental consequence. If politicians will not support the law in situations which the law is specifically intended to address, it engenders a disrespect for the law as a way of balancing rights and enabling different groups in a society to live together peacefully. Additionally, it renders politicians increasingly irrelevant since the enactment and administration of laws is what they are for. What we risk getting instead is an arms race of people shrieking ever more loudly about their hurt feelings and the wickedness / bigotry of others, in the hope that if they shout loudly or behave menacingly enough they somehow “win” – a Tower of Babel of narcissistic “victims”. Emotion rather than critical thinking and law. Is that really what we want?
Human rights – if they are to mean anything – have to apply to all humans, not just your friends. Legal rights – if they are to mean anything at all – have to apply to everyone falling within the category granted those rights. Legal rights – to be meaningful – have to be enforceable. Enforcing them is not bullying. Politicians should not be afraid to say so.
Above all, what those objecting to [insert villain of choice] want is one set of approved opinions, those they agree with. Free speech for me but not for thee. But what this will soon become is free speech for no-one, not even me. Because what they refuse to understand is that if you do that you are not arguing for freedom at all. You are arguing for totalitarianism of thought and you are doing so because you think you are on the winning side. But, one day, you will not be on the winning side and then it will be you who will be shut down. And what will you say then, the laws and conventions to protect you having been cut down by you in your zeal to enforce your views on others?