speech rights of others in the name of what you imagine their responsibilities should be.
We should remember that the Free in free speech is not only about the freedom to speak and write as you see fit. It is also about the freedom of the rest of us to hear and read everything that we choose, and to judge for ourselves what is right. The flipside of freedom of speech is the freedom to listen (or not) and to choose.
We are under no obligation to take any notice of anybody’s words; the right to free speech never entails a ‘right’ to be taken seriously. But nor does the speaker have any obligation to restrict what they say to what we want to hear. To mean something worthwhile, freedom must be first and foremost for the other person’s point of view. George Orwell put in perfectly in his 1945 essay ‘The Freedom of the Press’ (originally written as a preface to his novel Animal Farm, though ironically the publisher refused to include it): ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’2
As part of forgetting to put the Free in free speech, we also appear to have forgotten the meaning of tolerance. Today tolerance is talked about in two related ways: either it means allowing the expression of views without judging or criticising them, or it is used as the excuse for closing down views which are too offensive, as in ‘we will not tolerate intolerance’. Neither has much to do with true tolerance.
Intolerance is always the enemy of free-thinking. But tolerance and the right to free speech does not mean a free ride. Tolerance is not about allowing anybody to rant away, offend and insult without challenge because ‘everybody’s entitled to their opinion’. True tolerance means allowing others to express their opinions, however disagreeable – and then being free yourself to tell them what you think of it, just as they are free to repay the compliment to you. In this, I am always with the great Englishman of letters Dr Samuel Johnson, who declared that ‘Every man has the right to utter what he thinks truth – and every other man has the right to knock him down for it.’3 Figuratively speaking, at the very least.
The second thing we have forgotten about free speech is that it is Speech. It is simply words. Words can be powerful tools, but there are no magic words – not even Abracadabra – that in themselves can change reality. Words are not deeds. It follows that offensive speech should not be policed as if it were a criminal offence.
It is true that ‘words can be weapons’ in a battle of ideas, or even just in a slanging match. But however sharp or pointed they might be, words cannot be knives. However blunt words are, they are not baseball bats. No matter how loaded they are or how fast you fire them off, words are not guns.
Yet all too often today we see words treated as if they were physical weapons. People in the UK are imprisoned for tweeting insults, as if they had handed out a bodily beating. Outraged online mobs pursue ‘rape deniers’ or other speech deviants across social media much as the London mob pursued the misogynist murderer Bill Sykes through the Dickensian city. Politicians and public figures in the US or UK are forced to apologise for having caused unintentional offence with some words, as if they had unintentionally caused a war (which is something they would never apologise for, of course).
This confusion of words and deeds is even written into UK law, with the Public Order Act used to imprison thousands of people each year for ‘threatening, abusive or insulting words or behaviour’ (my italics), blurring the distinction between what people say and what they do, as if abusive language really was the equivalent of physical abuse.
Words can hurt but they are not physical weapons. And an argument or opinion, however aggressive or offensive it might seem, is not a physical assault. The difference is far more than semantic. There are and should be laws against assault and threats of violence. There often are but should not be laws or rules against words used to express opinions, however violently one might disagree with them. The right response to violent assault is to end it, as forcibly as necessary, and possibly to lock up the perpetrator. The answer to bad words is not to end speech or lock up the speaker. It is more speech – to resist or simply to rubbish the words objected to.
But should all speech really be free? Is it really possible to draw such a firm distinction between offensive words and criminal offences? The answer is yes, once we are clear what we mean by free speech as encompassing all forms of expression from ideas and opinions, through invective and insults, to jokes or mindless jabber.
There are other types of speech that the most liberal-minded among us have long considered to be indefensible: direct threats of violence or blackmail, for example, or malicious defamation of individuals, or illegal obscenity such as child pornography. Even the US First Amendment has not protected these forms of words, and the US Supreme Court takes a dim view of what it calls ‘fighting words’ and incitement, both of which are intended and likely to cause violence or other unlawful action.
But these are not really arguments against free speech. In properly distinguishing between words and deeds, we need to make a distinction between words that are simply speech – the expression of something – and words that instead become part of an action – the execution of something. For instance there is a big difference, recognised by US Supreme Court cases as we shall see, between expressing a general violent hatred of the government or minority groups, and deliberately inciting, provoking or organising specific acts of violence against particular institutions, individuals or groups. The first category is speech, to be tolerated, like it or not (but challenged as you see fit). The second is something other than free expression, and we do not have to put up with it.
Of course many serious crimes will involve some sort of speech, whether that means people conspiring to murder or planning a robbery. Nobody imagines that a criminal haggling over the price of a gun on the black market, or demanding money at the point of that weapon, is exercising his free-speech rights, and there will be few ‘I am Charlie’ banners on parade if Charlie the armed mugger gets his comeuppance.
Those who support free speech have long sought to distinguish words from deeds and to have legal exceptions to the principle overturned or at least defined as narrowly as possible. In the US the Supreme Court responded by, for example, narrowing the grounds on which speech can be deemed to be ‘fighting words’ and so not protected by the First Amendment. When that category of speech was first defined, in a 1942 Supreme Court case, a Jehovah’s Witness was found guilty of using ‘fighting words’ simply for calling a town marshal who was attempting to prevent him preaching a ‘God-damned racketeer’ and ‘a damned fascist’. By contrast in 1969, the Supreme Court justices overturned a New York law against abusing or burning the American flag, on the ground that ‘mere offensiveness does not qualify as fighting words’. In the early Seventies, in a near-reversal of the original 1942 judgement, they also overturned the ‘fighting words’ convictions of individuals found guilty of cursing at police officers.4
The trouble is, however, that in wider discussion in the Anglo-American world today, things are moving in the opposite direction. The tendency now in politics, the media and academia seems always to try to broaden, rather than narrow, the grounds on which words should arguably be kicked out from under the free-speech umbrella.
As we shall see, the insistence that ‘This is not a free-speech issue’ has become a staple expression of the free-speech fraudsters, as a way of maintaining their alleged support for the principle whilst shafting it in practice. Once, the phrase ‘This is not a free-speech issue’ might justifiably be heard only in response to something as serious as a direct threat to kill – or just something as trivial as a request to make less noise in a bar or on the bus. Now we hear it used promiscuously in response to all manner of questions that obviously should be ‘free-speech issues’, from demands for new laws against nasty internet ‘trolls’ to bans imposed on controversial political speakers or comedians on campus. It can seem as if some would like to turn the exception to free speech into the rule.
In this spirit there has been a remarkable inflation of the meaning attached to ‘harm’ everywhere from academic philosophy circles to the UK courts, so that it