The free speech dilemma

What role should social pressure play in the policing of free speech? Two things I’ve seen recently pose this question.

One is the racist harassment of Rufaro Chisango at Nottingham Trent University. I like to think that in better places and times those racist twats would have been swiftly suppressed by violent force by fellow students. Ms Chisango would, I suspect, gain much more confidence from knowing that her friends and neighbours have her back than she’d get from having to appeal to slow, impersonal and often incompetent university authorities or the police.

The other is the conviction of Mark Meechan for what seems to have been a bad joke. I agree with Adam Wagner that this is a bad idea. Criminalizing “gross offence” means giving too much power to the police to suppress unpopular ideas or ill-judged language. A more appropriate response would be to either ignore it and condemn such people to obscurity, or to just tell them they are wrong.

Such social pressure has worked well in the case of David Irving. He should be legally free to deny the holocaust, but the rest of us are entitled – and correct – to treat his as a pariah.

I’m even relaxed about most cases of no-platforming. Nobody has a right to speak at (say) a students union, any more than I have a right to a column in the Telegraph. A right to speak does not give the rest of us an obligation to host you.

Nor does that right entail freedom from the consequences of exercising it. You have a right to speak, and the rest of us have a right to tell you forcefully that you’re talking shit or to ignore you.

In fact, if the marketplace of ideas is to work, bad ideas must be weeded out. This is done by vigorously opposing them.

All this leads me to think that we should police speech not with the law but with the force of others’ opinion – either shunning them or opposing them depending on context.

Except, except, except. Here are four counter-arguments:

 - Some privately-provided platforms are so widespread and important that withdrawing them is, as Robert Sharp says, a form of “privatized censorship.” He’s talking of Facebook’s banning of Britain First. They deserve no sympathy, but there’s a slippery slope here: if Facebook can ban them, it can – as Robert says – also censor others.

 - Private sanctions against speech we don’t like can be excessively harsh. For example, I wouldn’t want firms to be able to sack employees just because they have opinions their employers don’t like.

 - There’s a point, perhaps not easily defined, at which vigorous and widespread opposition becomes bullying: was Mary Beard bullied after her (I think) ill-judged tweet about “’civilized’ values”? I’m not sure. But women are especially vulnerable to an ugly mob rule.

 - John Stuart Mill had a point in warning us of the tyranny of the majority. This he wrote, is

more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

Like other tyrannies; the mere fear of this power can be repressive. I fear it has led to a diminution of worthwhile opinions such as Oakeshottian conservatism or free market egalitarianism.

My point here is that we face a genuine dilemma. On the one hand, there’s much to be said for using social rather than legal sanctions against speech we don’t like. But on the other, those sanctions can be as excessive and misapplied as legal ones.

Dilemmas such as these are, I think, under-debated. Everybody is so keen to press their own point of view that we tend to miss a big issue – of how best to create a genuine healthy public discourse in which all voices are heard whilst at the same time ensuring that the marketplace for ideas selects against bad ideas.  

Comments

[Metatone]

I'll throw in that we've also yet to really grapple with the consequences of the digital age. A lot of things that used to work quite well don't work so well. Couple of recent examples:

a) Online bookshops selling "Protocols of the Elders of Zion" - our old free speech paradigm was that this book was not banned, but it was neither easy to stumble upon or buy (for simple commercial reasons in an age of physical bookstores with limited space).

Now of course, you can not only buy it with a click from these bookstores, but it's easily linked to from various Youtube vids, which can easily be casually encountered if you just view "coming up next" a couple of times starting from all sorts of more innocuous starting points.

b) Contrast David Irving with later figures who more often use Youtube rather than trying to talk at student unions. They are getting much larger audiences and greater traction.

I have no solution to any of this, but I think it's really important we realise how much our previous "easy stance" on Freedom of Speech was enabled by the sheer difficulty of fringe figures in getting distribution.

[Scratch]

Democracy appears to have assisted in selecting against bad ideas - this is why they're typically implemented by our betters through stealth.*

Thatcher's 79 manifesto was apparently perfectly anodyne for instance, austerity we were told suddenly became essential the day after the coalition formed due to presumably sudden and imperilling "events in Greece" and, if I'm not mistaken, the raft of globalising/post-democratic measures we've come to uh, enjoy since were neither tested on the stump nor detailed in manifesti.

*Except partially by Blair whom, we eventually discovered, had intuited that we had "nowhere else to go."

[e]

“how best” when socially and culturally we seem all of a mess (though aren't we always?) and quite out of balance with the dominant force, our society's political-economy. Seems we're in the midst of a painfully long-running moral panic re the internet. I favour mass inoculation: media studies. Age 7 start would be good I think...

[Anders]

Is there even a dilemma here? Can't you synthesise the various insights in Chris' piece thus:
1. Keep legislative policing of unwelcome speech to a minimum
2. Rely on social sanctions as the primary means for society to object to unwelcome speech
3. Prohibit corporate sanctions (such as FB bans) where they go beyond banning speech which is illegal
4. Limit excessive bullying using harassment legislation
?

I'm struck that Twitter has become an invitation to bullying - unless you're willing to refrain from ever articulating unpopular views. Ugly as bullying is, it's not obvious that the existence of Twitter bullying should be taken to indicate a problem per se, or something to be legislated for.

[Ralph Musgrave]

The right to speak at a university cannot be equated with the right to a column in the Daily Telegraph. The Telegraph is a privately owned right wing publication which is has a right to reject left of centre authors, with the opposite applying to the Guardian.

In contrast, universities are publicly owned. They have an obligation to allow all points of view apart from clearly illegal ones.

[David Friedman]

"Private sanctions against speech we don’t like can be excessively harsh. For example, I wouldn’t want firms to be able to sack employees"

You started your post by writing that "in better places and times those racist twats would have been swiftly suppressed by violent force by fellow students."

So firing an employee for his views is excessively harsh, but beating someone up for saying hostile things you disapprove to someone else is not only acceptable but good.

On the no platforming issue, I agree that I do not have an inherent right to speak at Oxford. But if Oxford has mechanisms by which students invite speakers, there is a problem with the university refusing speakers whose views it disapproves of--most obviously, a problem with it's claim to be an educational institution. And there is also a problem with a heckler's veto, with students who don't want a speaker making things sufficiently unpleasant so that either the speaker cannot speak or the university, anticipating the problem, refuses to permit him to be invited.

[Keith]

I suspect this confuses different issues. Mill himself says offense is not a reason to ban any form of expression. It does not constitute proof of rightness about anything to be offended by any view. Which is a fine idea for a Philosopher. But the Law often takes a different view as offense can cause public disorder, and so the concept of breach of the peace and related ideas have existed for a long time. Private disorder can arise equally in various situations too. Insults threats or other boorish behaviour will get you shown out the door of a person's home sharpish.

The form and limits of debate depend in practice on the context in which discussion occurs and different forums have different rules. Technology such as the Internet has blurred the boundaries of the forum and so makes the question harder to answer. The assumption in an academic context that vigorous debate or even offensiveness is ok as the parties are assumed to be arguing in good faith may not be a valid assumption when dealing with strangers online who only want to take the piss. David Irving lost any credibility as his scholarship was trashed in a Law court as part of a action for damages. This unusual event is a counter argument to the one you make. Being compelled to appear in a law court and defend his ideas under the rules of a legal forum forced error to be exposed. The inability of most people to get jerks on twitter or facebook to accept such a discipline is the problem. Anyone can argue in bad faith online and wave facts and logic away. Trump does it all day, and the media failed so completely to apply any standards he became US president. Most people who say offensive things online have no interest in the truth and the obvious bad faith is why they elicit small sympathy if they get into legal trouble. You have elided the issue that searching for truth and say racist abuse and violence are quite different in their motivation. Forums must be defined and the reasonable rules enforced by some means or it becomes impossible to debate and search for truth at all. Liberty requires order. Which is why a majority is not a mob, and democracy is not the same as a mob. So the rules of good debate preclude beating up any one who is mistaken. Legal remedies are needed if only to help insure the mob has no excuse to get out the knuckle dusters as there is a formal rule to appeal to instead.

[Noah Carl]

The case for protecting the speech of people with extreme views, assuming they are willing to articulate them in a civilised way, is arguably stronger than the case for protecting the speech of people with moderate views. One doesn't generally learn very much listening to people whose views are widely accepted already.

[UnlearningEcon]

I think Anders basically has it. His synthesis also makes more sense if we consider corporations as somewhat state-like institutions.

[Dave Timoney]

The problem with the marketplace for ideas is that no amount of public rejection will cause the producers of bad ideas to exit the market. This is partly because of Metatone's point, that technology has reduced the cost of production and distribution, but also because the powerful and wealthy have always been able to amplify their ideas or write-off their losses.

Arguably, and despite the structural bias, this is as it should be because an idea that is universally regarded as bad may simply be ahead of its time. Obscurity is the right result because it leaves open the possibility of future revival. For this reason, I'd agree that the "policing" of bad ideas is a social responsibility, whether that is formal (e.g. laws against incitement) or informal (e.g. protest and censure), and that we should resist the drift towards privatised censorship.

In that context, the kerfuffle over Mary Beard was illuminating. The majority of the feedback she got was legitimate censure, while the abuse was little different to what she received years ago from A A Gill from his privileged position in the press. The words may have been harsher, but it was still just "mean speak". As a chaotic, uncoordinated process, you have to take the rough with the smooth. Just as the marketplace rejected Beard's attitude, so it also promoted censure over abuse, despite her attempts to focus on the latter.

This is probably as good as we can expect to get, so the claims of "bullying" against Beard were, to my mind, inaccurate (if one kid in the playground punches you, this doesn't mean the whole class assaulted you in a "joint enterprise") as well as being a rather transparent attempt to delegitimise public censure by crying witch-hunt.

PS: Ralph/David F, student unions are private member organisations that are legally distinct from universities. Many "unions" in the public eye are also distinct from student unions. For example, the Oxford Union is independent of the OUSU and not affiliated to the NUS, which is why it can host speakers in breach of the NUS No Platform policy and thus prompt both student protests and outraged newspaper columns about the assault on free speech.

Universities do not restrict the hire of their facilities based on the opinions of students. They are not publicly owned (they are self-governing institutions that receive public funding as well as private fees) and hosting speakers typically generates revenue, not a cost. They have no special obligation towards the "upholding of free speech" because of the state funding of education.

[Maurits Pino]

Facebook and other large private players can effectively play censor. A large number of private players coordinating their censorship can do the same. Under McCarthyism very few people were censored or prosecuted by the state, many were forced to stay silent or lost their jobs through coordinated private efforts.

[Blissex]

«You started your post by writing that "in better places and times those racist twats would have been swiftly suppressed by violent force by fellow students."»
«than she’d get from having to appeal to slow, impersonal and often incompetent university authorities or the police.»

That looks like an endorsement of "antifa" vigilantes.

[Tony Of CA]

Anitifa is the antithesis to an open free society. I'm sorry free speech is paramount to an open society, and somewhat if certain idiots with controversial views can expand their audience due to you-tube. All this reflection due to Hillary Clinton losing to Trump. She was a horrible candidate-get over it.

[Robert Mitchell]

"A right to speak does not give the rest of us an obligation to host you."

If you want your system to be robust, you should encourage all attacks on it. If you have to ban to protect your site or your feelings, your system of beliefs is too fragile.

For example: trying to ban trolls led to the election of Trump, the king of trolls.

It's like superbugs: super trolls are bred by attempts to censor trolling.

A marketplace is an inappropriate metaphor for exchanging ideas because knowledge is not debited from the giver when transferred. Exchange of ideas does not mean you lose your idea when you express it. Only if money replicates upon being given would a marketplace be appropriate to describe knowledge exchange.