In the aftermath of the ‘Charlie Hebdo’ atrocities, almost as a reflex, the debate surrounding the right to free speech flared up on both sides of the argument. Yet, in doing so, it was implicitly assumed that the attackers had a point of view which was worth at least some consideration in the debate context. This paper will submit, on two grounds, that the debate is not one worth having. Firstly, because in debating the concept just because it is under attack, we give the attackers something they do not deserve: an open dialogue. Free speech is an emotive topic, yet would we have started having serious open discussions about whether it is a good idea to have women drivers, for example, if instead the attackers had stormed the Department of Transport? Secondly, because the question, “should we have an unabated right to free speech”, as posed, is nothing but a fanciful creation of language. There is just as much utility in debating what would happen if an unstoppable force met an immovable object: neither thing actually exists, and nor does an unabated right to free speech. We reject this idea because free speech is important to us, as a principle, yet many of us accept and approve of the many limitations to free speech which happen on a daily basis.
The classical case for freedom of expression was formulated by John Stuart Mill in On Liberty, and his arguments form the basis as to why it is a concept so passionately defended. Mill acknowledged that expressions are sometimes defamatory, seditious, invasive of privacy, and incisive to violence and, thus, by definition, harmful. Despite this, Mill argued that the silencing of expression is always more harmful than the expression itself and is therefore never justified. In particular, Mill argues that one should not suppress speech on the grounds that it is immoral, shocking, unorthodox, or heretical, and especially not simply because it is false.
Mill’s argument has two branches. On the one hand, he asks us to suppose that the silenced expression is true or at least partially true. Mill then reminds us that there is always a chance that an opinion, however absurd or false it may seem, is true or at least partially true. To suppose otherwise is to suppose that one cannot be wrong. Yet we are often mistaken. The history of thought is filled with opinions believed to be unquestionably true at the time that in retrospect have proved to be false. Silencing opinions that challenge the accepted view can prevent the elimination of error and the growth of knowledge. Thus, Mill correctly concluded that silencing of opinions that dispute received ideas can result in a loss of truth and in consequence can be harmful.
The second branch of Mill’s argument is based on the supposition that the opinion at issue is false. He correctly holds that even here suppression would constitute a loss because false views force us to re-examine the grounds of our beliefs and rethink our arguments; they challenge our dogmas and stimulate us to develop them into living truths. Mill’s argument, as a matter of philosophy, is generally correct. However, its application in modern life is too simplistic, and brushes over many areas where it is necessary to limit free speech.
In the context of Charlie Hebdo, it will not be argued that censorship of satirical ideas is a necessary restriction of freedom of speech, within the framework that Mill outlined satire always has the potential ability to illuminate and reform, from which offence can be an unfortunate side effect. The need to protect the former outweighs fear of the latter. It will be submitted, however, that there has never been, nor should there be, an absolute unabated right to free speech. To say you believe in an unabated right to free speech means you believe in absolute free speech at all times. Could you truly say that free speech has been unjustly limited in any of the following scenarios?
1) Holocaust denial: It is a crime in 14 countries to deny the holocaust. Many of these 17 states are Western Countries which pride themselves on defending free speech, but have chosen to limit a harmful expression.
2) Hate Speech: preventing direct abuse of people based on their ethnicity, race, gender, or sexuality?
3) Libel: preventing public false claims which can destroy a person’s reputation, based on a lie?
4) Copyright: trademarks and patents protect ideas from being publicly disseminated. In a world with entirely free speech you could never protect your ideas from being copied. There would be no incentive to innovate.
5) Protection of Minors: through devices such as eradicating paedophile information exchanges.
Freedom of speech is not absolute, and the law has always recognised this. For example, it is a crime to incite a riot: in Schenck v United States, Oliver Wendell Holmes noted that even “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Speech has consequences, and if those consequences are demonstrably harmful, speech can be, in certain instances, restricted.
There are obvious legal and moral limits to free speech in any of the above scenarios, as there should be, because they are reasonable. Society has grown around such basic limitations and few people would object to any of them. A vicious attack does not mean we should re-examine these principles nor debate whether they should be extended or curtailed.
Unicorns. Leprechauns. Mermaids. Leonardo Di Caprio’s Oscar. Free speech. These are all things that have never existed. When the concept is examined and explored, it quickly becomes clear that it is the Narnia of absolute rights: debating its existence is futile.
The Norse word ‘rassragr’ was considered so obscene that any man who was called it held full rights under the law to kill its speaker, or refrain from doing so and have him excommunicated from a group for the rest of his life. The word was the equivalent of labelling someone a homosexual, although the offence was not taken for such a reason. Vikings, like the Greeks and the Romans, did not by all accounts have a distinct aversion to homosexuality, but the usage of the word belied the traditionally effeminate role of a sexual relationship, which, for the Vikings, meant submissiveness; a fundamental lack of leadership qualities. The point, therefore, is that words inhabit meaning that we, as a society, prescribe to them. Speech is a concept so deeply founded on instability and fluidity that since its emergence mankind has coped with its evolution by a simple process of labelling; what is acceptable, and what is not. Limitations on speech correlate so closely with the development of systems of law and order that they have become essentially a cornerstone of every civilisation, every religion, and every constitution. The enlightenment still fostered heresy. The Golden age of the Elizabethan era still bred treason. Free speech is a commendable concept, but it remains a concept, a statistical, societal, impossibility.
“I disapprove of what you say, but I will defend to the death your right to say it.” – a quote generally attributed to Voltaire (a committed anti-Semite), albeit mistakenly. It was actually written by his biographer, Evelyn Beatrice Hall, some 128 years after his death, as a means of describing his beliefs. Here Freedom of speech has created a fallacy that is blindly accepted. Modern society is so taken with this notion of free speech as integral to democracy that we fail to see that most of us not only tolerate but actively agree with its infringement on a daily basis. It is difficult to envisage many people advocating the decriminalisation of inciting racial hatred, for example. Unabated free speech can’t champion satire and disparage subsequent criticism of it. As has been argued, there are numerous examples where limiting free speech is essential in a democratic society: libel and slander laws, copyright, confidentiality, assault, and abuse; democracy deplores free speech! Its abatement is our centre of operations and our keeper of the peace. A shield as well as a sword. It is difficult to envisage any personal liberty that would not directly suffer as a result of the ability for anyone to say anything unchallenged. Rights of religion, expression, sexuality, racial and gender identification and safety would all suffer under the guise of ‘free speech’. It is inarguable that in certain areas of the world people suffer deprivations of rights and speech. But surely, to argue that the right is a pillar of democracy is to disagree with the obvious utilitarian efficacy of the fact that free speech allows the rights of one to potentially diminish the rights of any and even all others.
The events in France on the 7th January are indefensible. The world witnessed an attempt to eradicate opinion and creativity with violence, which thankfully failed. But opportunists on both sides of the debate have labelled the event as indicative of the curtailing of free speech and the need for its strengthening in its entirety, a solution which simultaneously simplifies and then misses the point. It is possible to criticise the acts without celebrating the ideology of the magazine if you so choose. Collective social responsibility demands that we see the world as it is, incoherent and entirely imperfect. Were the Chelsea fans on the Metro in Paris merely exercising their rights to free speech when they chanted a black man off the train? If a right to free speech must exist then accompanying it must be a right to selective speech. The Nanjing Massacre of 1937 saw over 20,000 women and children raped and over 300,000 people murdered by Japanese forces. To this day the Japanese Government deny its existence and negate to place it in any state history book. If that is their free speech right, to fabricate history, what position does anyone else have to revile it? Over 8,000 Bosniaks were massacred in Srebenica but officials to this day call it a small military victory. If holocaust denial is free speech, then why is it currently illegal in some 15 countries to do so? To return to the subject of Charlie Hebdo, then, these unabated rights that some in the media have called to be protected in their entirety are the same rights that in 50 years would allow those responsible to deny that it ever happened. To label it propaganda, to tell their children that they are the victims. Free speech, much like mankind, can be just and reasonable but, unbridled, can become poisonous, and unstable.
– Max, Greg & Kris, GDL Students
BPP Human Rights Law Blog 