Tonight David Irving is behind bars for publicly denying the existence of the Holocaust some 17 years ago, while newspapers around the Northern world are republishing cartoons that mock the image of the Prophet Mohammed causing offence to many Muslims around the world. Is this appropriate?
If you set aside the fact that Irving’s statements were made a long time ago and the fact that he has since recanted his views, then the core issues here are whether freedom of expression should be boundless, whether there are good reasons for limiting its scope, and, if so, when are these limitations appropriate?
First of all, it is widely agreed that limiting freedom of expression by banning statements that are controversial or against general social mores is fundamentally at odds with the very concept. Freedom of expression is meaningless if it does not protect unpopular speech. However, many also argue that the solution to all kinds of controversy is the airing of all perspectives in the ‘market place of ideas’. The argument goes that it is in this ‘market place’ that ideas will be debated, tested and ultimately brought in check by rational means. In contrast to this argument, others argue that freedom of expression has the potential to infringe on other human rights, and it is when human rights come into conflict that it becomes appropriate to restrict some people’s access to their rights in order to protect the rights of others. In the area of freedom of expression the two most common areas of conflict are equality and freedom of expression itself.
The issue of equality is most often raised in the context of the debate around pornography. The argument here is that pornography denigrates women and, thus, restricts their access to equality rights. This argument is sometimes extended to include the idea that pornography increases acts of violence, sexual harassment, and other serious forms of discrimination against women, and the rights of women to be protected from these threats should override the right of others to express themselves by publishing pornography (or particular kinds of pornography). This same argument can also be applied to hate speech.
It is also possible to reframe both of these debates in terms of a conflict between two kinds of expression, by using the concept of ‘silencing speech’. The argument here is that some speech has the capacity to silence its subject and therefore infringes their right of freedom of expression. In the context of pornography or hate speech, the argument would be that by denigrating or demonising women or other groups, and creating a social environment in which they are threatened and subjugated, and in which their words are not heard or they are afraid to speak out, pornography and hate speech serves to silence women and other groups, thereby denying their right to freedom of expression.
The idea of limiting freedom of expression to not include the protection of silencing speech can be seen as a decision to prioritise the rights of the vulnerable members of society; by restricting some of the expression of the more powerful members of society the less powerful members are given space to express themselves as well. However, this same concept can be very easily turned on its head. Politically, it is easier and more popular to use this very concept to support views that are already powerful and to silence controversial opinions that are held by the minority. When this happens, only the powerful groups gain protection from ‘hate speech’ legislation, and the vulnerable are subject to a double restriction – that caused by the legislation and that by the silencing speech of the more powerful groups. Arguably, this is what is happening in the North at the moment – with Jews receiving very strong protection and Muslims being silenced by both ‘anti-terror’ legislation and silencing speech.
At the end of the day, I don’t think that this is an argument about whether freedom of expression should ever be limited. It will always be limited, whether through legislation, silencing speech or (more commonly) lack of access to the means of mass communication. This is really a public policy issue about equality of access, both to protection and freedom of expression. Currently, I think that it is pretty clear that public policy on this issue has been seriously skewed towards the protection of the powerful at the expense of the more vulnerable. This is not to say that everyone who is being protected is unworthy of this protection, nor that everyone who is being silenced deserves instead to be amplified.
Ultimately, however, the situation at the moment is both unfair and unsustainable. You cannot drive an opinion underground without it bubbling back to the surface again, and generally it will return in a less rational more resentful form. By attempting to assert a rigid straightjacket of what kind of values and opinions are acceptable in our societies, we are merely alienating and angering people who do not share our views (or should I say, ‘those views’ since I do not share all of them myself?). Rather than reducing conflict, these policies will also serve to increase and deepen the differences between us.
Of course, this doesn’t solve the issue of whether Irving’s conviction was appropriate, or whether the cartoons should be protected under the guise of freedom of expression. I would be reluctant to promote either form of expression as something that should be protected in all circumstances, and I certainly wouldn’t want to give either of them the right to amplification. However, ultimately, I think that both forms of expression are best dealt with in ‘the marketplace of ideas’ and, rather than being criminalized, both should be roundly criticised, mocked, and put in their place by rational debate. Stronger reactions, like imprisonment and rioting only give both kinds of expression more strength than either of them deserve and thus amplify their voices. Surely this was the last thing that ought to have been done?
[Cross-posted at larvatus prodeo ]
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