The very founding document of liberal free speech principles makes the argument that free speech is context-dependent, not absolute
Patrick Hurley is the Labour MP for Southport
The online right wing of the UK political community has become, since the landslide election of a Labour government in July last year, increasingly libertarian in their outlook. Notably, they – and increasingly, their supporters both in Parliament and on television newspaper review shows – are becoming more and more fixated on the concept of free speech, and the commitment or otherwise to it of the government.
In recent days, this defence has come into even sharper focus than usual. The proscription of direct-action groups, the awful chanting of pop groups at Glastonbury, the criminal prosecution of people by an operationally independent criminal justice system over social media activity. All these things have contributed to an increase in commentary on free speech issues, which hasn’t yet reached fever pitch, but which nonetheless attracts the attention of Opposition politicians looking for something to criticise the government on.
In light of this, I thought it would be useful to go back to first principles around free speech, what it actually is, and why it’s a principle to be defended against those who would seek to either oppose it or misuse it for their own purposes.
Liberalism’s founding document, if it can be said to have one, is widely recognised to be John Stuart Mill’s On Liberty, laying out the foundations for a society that not just allows, but encourages, people to demand and then exercise freedom in how to live their lives. For those of you who either didn’t study philosophy or who’ve had better things to concentrate on since your formal education ended, the fundamental doctrine in the book is called “the harm principle”; I summarise it, bluntly and only slightly inaccurately, that a person should be left free to pursue their own interests as long as this does not harm the interests of others.
It’s a principle worth fighting for.
And it’s a principle that is usefully expanded on by Mill himself, in a passage where he contextualises where and when harm can be caused by words alone. The passage runs as follows:
“Opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.
An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.”
The very founding document of liberal free speech principles makes the argument that free speech is context-dependent, not absolute; that what can be defensible in one set of circumstances might be indefensible in another. This is, of course, common sense. But it’s a common sense that is seemingly lacking in the understanding of even the Centre Right’s contribution to the current discourse.
On Liberty was published in 1859, and so of course its examples are anachronistic. So, what could we usefully substitute for “delivered orally to an excited mob assembled before the house of a corn-dealer” in a way that makes sense in the 2020s? What examples might be analogous? I contend that chanting for the death of people at a music festival is analogous, especially when broadcast on television. I further contend that making threats to people on social media, such that others may act on them, or the subject of the threat themselves might be notified of them, is also analogous.
Certainly, tweeting a wish for people to be killed or joining in a crowd of people shouting the same, seems much more like Mill’s “mob assembled before the house of a corn-dealer” than it is similar to an op-ed arguing the same published in the pages of the Sunday Times. With no shade intended against the Sunday Times, I expect its inside pages are less likely to incite people to action than the immediacy of social media or the excitement of being part of a crowd.
So, based on the long and cherished history of free speech in the UK, based on the very foundational document it’s underpinned by, and based on timeless principles in a modern setting, it becomes clear – no matter whether your priors are left-coded or right-coded – that neither tweeting in support of attempts to murder people, nor the criminal damage of defence equipment, nor chanting death threats that send a chilling message to ethnic minorities, can automatically be defended by reference to “free speech”. Instead, they may justly incur punishment, in Mill’s own words.
Some things, whether spoken or written or otherwise undertaken, can justly be punished by the state, on the basis that they cause harm, even when in other circumstances the same action might escape censure. It’s the mark of a mature and civilised discourse that accepts this common sense and proceeds on that basis, rather than attempting to weaponise powerful concepts in support of weak politics.
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