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).
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. 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.
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 an idea – and words that instead become part of an action – the execution of a deed. For instance there is a big difference 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.
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.
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.
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.
But what about incitement? Inciting somebody to commit an offence is a crime. Offering an offensive opinion or inflammatory argument should not be. In a sense all arguments are ‘inciting’ – as in urging or provoking – somebody to do something, whether that means to change their opinion or the brand of coffee they drink. Those on the receiving end are still normally free to decide whether to do it. We should be very wary of criminalising speech so long as all that is being chucked about are words.
And what about offensive and hateful speech? These issues are addressed later. To begin with let us simply remember that in Western societies it is usually only those consensus-busting opinions branded offensive or unpalatable that need defending on the grounds of free speech. Nobody ever tries to ban speech for being too mundane. This is not a question of celebrating extremism or obnoxiousness. It is simply a matter of recognising that, when it comes to upholding the principle of free speech in practice, if we look after those opinions branded extreme, then the mainstream will look after itself.
Free speech is more important than hurt feelings. As recently as 1999 David Baugh, a leading black American civil liberties lawyer, defended a Ku Klux Klan leader who had been charged after a cross-burning, gun-toting rally. The attorney assured the jury that he was well aware that his client and the KKK hated black men like him. But that, Baugh argued, did not alter the racist’s free-speech rights: ‘In America, we have the right to hate. And we have the right to discuss it.’4
Baugh lost that cross-burning case on a point of law. Today he might be widely considered to have lost his mind. Yet he was right. In a civilised society, if we are talking about thoughts and words – however vitriolic – rather than violent deeds, all must be free to hate what or who they like, whether that means Muslims, Christians, bankers or Bono. To seek to ban the right to hate should be seen as no less an outrageous interference in the freedom to think for ourselves than a tyrant banning the right to love. The best way to counter hatreds and ideas we despise is not to try to bury them alive, but to drag them out into the light of day and debate them to the bitter end.
There is a good reason why it’s important to remember the meaning of both Free and Speech, however uncomfortable they might make us. Because the third thing we tend to forget about free speech is that it is the most important expression in the English language.
To borrow a phrase from the techies, free speech might be called the ‘killer app’ of civilisation, the core value on which the success of the whole system depends.
Free speech is the voice of the morally autonomous individual, nobody’s slave or puppet, who is free to make his or her own choices. It is the spirit of the age of modernity on full volume, first captured more than 350 years ago by the likes of Spinoza, the great Dutchman of the Enlightenment, who challenged the political and religious intolerance that dominated the old Europe and set the standard for a new world by declaring that ‘In a free state, every man may think what he likes and say what he thinks.’5
Free speech is not just about individual self-expression. It is the collective tool which humanity uses to develop its knowledge and understanding, to debate and decide on the truth of any scientific or cultural issue. Free speech is also the means by which we can bring democracy to life and fight over the future of society, through political engagement and the battle of ideas.
Free speech is not just a nice-sounding but impracticable idea, like ‘free love’. It has been an instrumental tool in the advance of humanity from the caves to something approaching civilisation. It is through the exercise of free speech and open debate that individuals and societies have been able to gain an understanding of where they want to go and why. The open expression of ideas and criticism has often proved the catalyst to the blossoming of creativity.
That’s why history often suggests that the freer speech a society has allowed, the more likely it is to have a climate where culture and science could flourish. Even before the modern age of Enlightenment, those past civilisations that we identify with an early flowering of the arts,