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The Limits Of Freedom Of Speech

by Chauncey Tinker – 24 Apr 2019

[Fifth in a series of posts on the subject of the limits of freedom of speech. The fourth post proposed a new legal framework for incitement and can be found here]

Western governments are increasingly limiting what their citizens are allowed to say. In order to oppose this trend effectively I believe it is of paramount importance that we first set out clearly where we think the limits should be, to draw red lines as it were and then argue forcefully to stop our governments exceeding those limits.

In this series I have set out where I think the red lines should be drawn. Please note that I am really arguing from the point of view of a citizen of the United Kingdom, and it could be that a somewhat different approach might be more appropriate in other nations, particularly the United States, that have a rather different tradition.

I have focused on incitement most of all because I believe this to be the most important battleground in the free speech debate at the moment. Just to summarize briefly, in the last post I made a distinction between what I termed DIRECT and INDIRECT incitement. I stated that I do not think that mere INDIRECT incitement should ever be criminalized, and furthermore that even DIRECT incitement should only lead to prosecutions in cases that meet the CREDIBILITY TEST that I set out in that post.

The growing calls for the criminalization of so-called “hate speech” are usually accompanied with the justification that “hate speech incites violence”. We frequently hear the slogan:

“Hate Speech Is Not Free Speech”

However I have yet to hear this oft-repeated mantra being accompanied by even a most basic definition of what “hate speech” actually includes. Consider this article from the Huffington Post (written by a co-founder of the “Resisting Hate” group) for example:

Hate Speech Is Not Free Speech

The above article does specifically refer to examples of what I have classified as direct incitement, and an example of defamation, but also refers vaguely to “preconceptions and stereotypes“, “damaging lies”, “telling untruths with an agenda to demonise others”. If we start to censor opinions simply because we believe them to be factually incorrect then the freedom of the press is going to be seriously compromised. The last thing we need is for a Ministry of Truth to be created by the government, as it could never be relied upon to be impartial. The only thing that is clear from the above article is that the author wants to censor a very wide range of opinions that go far beyond direct incitement.

Unfortunately since the introduction of laws such as the Malicious Communications Act of 1988 and the Communications Act of 2003, the UK’s law is now also extremely vague and terrifyingly convoluted. Reform of these laws is urgently needed, I refrain from calling for their total abolition here only because I have not yet had the time to look at other aspects of these laws. These laws have been yet further complicated by the introduction of the Racial and Religious Hatred Act of 2006, which I strongly believe just needs to be abolished entirely (I can come back to that subject in a future post if anyone is unclear as to why).

The following subjects I have not included in the series so I include a brief summary here (please let me know in the comments below if you think I have missed any important ones):

DEATH THREATS

I think a very similar approach to the credibility test that I laid out in the post for incitement should be applied to death threats. Again as with incitement, people often make off-hand threats that shouldn’t really be taken seriously I don’t think. David Attenborough’s unfunny joke about shooting the US President is perhaps a good example. From the Independent:

Sir David Attenborough receives death threats after saying ‘we could shoot’ Donald Trump

Other probably more serious threats are rightly investigated, for example this case (from the Express):

Met Police probe into gruesome death threats to David Cameron and Jeremy Corbyn

What is very problematic is where the law is being (or perceived to be) enforced selectively. If a similarly offhand threat by one individual is prosecuted, while the above example involving David Attenborough is not, then divisions in society are likely to grow, an “us and them” mentality develops.

INCITEMENT TO COMMIT SUICIDE

This probably can be handled in a similar way to other types of incitement. An example from the Mirror:

Inventor of suicide game Blue Whale ‘admits inciting 16 girls to kill themselves after saying he’s cleansing society’

SEDITION

I think we should be free to question the current order without censure, even to question fundamentals such as our nation’s constitution, provided that we are not inciting violence or other forms of illegality to ovethrow that current order. Therefore in my mind laws against sedition are unnecessary complications to the law in a society which already legislates against incitement.

NATIONAL SECURITY

I have no issue with the principle that governments may have to restrict access to information in the interests of national security. However I think we need to be eternally vigilant to stop governments using the defence of national security as a mere excuse to refuse to disclose information on government actions that it is in the public interest to be known.

DEFAMATION

I have no issue with the principle of defamation as long as it is only involving actions between individuals, and I am not aware of particular problems with the UK law currently, but I may perhaps look at the subject more closely in a future post.

PRIVACY

I have no issue with the principle of people’s right to a meaningful degree of privacy. There are some important questions relating particularly to journalism and the investigation of crimes however, so again I may perhaps look at the subject more closely in a future post.

CONCLUSION

In conclusion, in this series I have set out what I believe to be rational limitations on freedom of speech. If you find this series useful then please link to this post (or the other posts in the series) in your debates, as I think the debate currently lacks a clear framework for what we generally mean by freedom of speech. Even those who call for absolute freedom of speech seldom really mean that in my experience, everybody usually has limits in their mind of some sort, often I have found they have simply classified what are really still just types of speech with other labels. This post has been added to the Arguments page (see the menu option at the top of every page) so that you can easily find it again.

If you want to challenge my framework and/or suggest alternative limits please do so in the comment section below, constructive feedback is most welcome as always.

RELATED POSTS:

The series:

Limits Of Freedom Of Speech – Harassment

(Note this next post is really just an argument against any suggestion that religions should be given special protection under the law):

Amending the First Amendment

Incitement and Current Law

Incitement – A New Legal Framework

Other related posts:

The Orwellian War On Fake News – Part 1

ELSEWHERE ON THE WEB:

From Peace News (For Non-Violent Revolution):

Hate speech is not free speech

From the New York Times:

Some more examples of incitement:

From the Telegraph:

Pakistan police arrest radical Islamic cleric who led Asia Bibi protests

From Breitbart:

UK Imam Tells Congregation to ‘Spill Blood’ and ‘Establish Law of Allah’

From the Metro:

UK riots: Arrests over Facebook ‘incitement’ to more violence

From the Independent:

Lawyer was taped inciting others to murder taxi driver, court told

What do you think? Please leave a comment below.

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