On Free Speech

This morning I was very struck by Steve’s latest post on the five year imprisonment of Ernst Zundel for having published his denial of the Holocaust. This event brings up a lot of awkward questions about the nature and the extent of free speech. I can feel the depths of my own discomfort at the thought of publications out there entitled Did Six Million Really Die? and The Hitler We Loved and Why. It seems shocking and somehow disgraceful that such unethical views can be expressed, as if it were an outrage against the uncommon sense, the thoughtful sense, that ought to be the basic goal of any society that dares to call itself civilised. And yet that gut reaction is equally a fine moment to consider why free speech is so essential, despite the atrocities it seems to welcome into the public arena.

I suppose the essential reason why all points of view, no matter how extreme and seemingly unreasonable, must be kept in circulation is in order to maintain transparency of thought. If an idea or interpretation is misleading, unethical or ill-considered, then the arena for debate is the only place where it can be satisfactorily disproved. If that idea goes underground it gains a strange, transgressive form of power; if we say it’s too dangerous a thought for us to think, then we celebrate it negatively; society is weakened and rendered fragile by its sheer existence. Whatever ugly, misshapen concepts mutate into the light, it is much better to look them squarely in the face and take them on. If we claim to believe in such a thing as truth, if we have faith in what might be termed ‘right’ then we have to allow truth and rightness to be challenged by all comers, and prove their value.

There’s an inherent problem with what has been called ‘woolly minded liberality’ that gets quite a lot of press these days. The idea is that if we allow all possible points of view, then we diminish the very distinction between what’s right and what’s wrong. If we accept everything, we begin to obliterate the notion of unacceptability. We become fearful of excluding anybody and so we end up with the worst kind of club that has no order, no direction, no sense of its own boundaries. Well, that’s as may be, but the alternative is to allow someone – and who would that be? – to judge who’s in and who’s out in relation to the validating cultural gaze. Let’s not make the mistakes of gender, race and class all over again; they were bad enough the first time around. The decision to exclude is itself always bound up with political motivations and complications that make such a decision far from innocent or well-intentioned. Listen, I don’t have all the answers here, but history has some pretty good lessons for us to learn, if only we would make the effort.

What I do know is that language lies with the same words it uses to tell the truth; I know that when we read we track our own unconscious desires every bit as much as we actually take in the words on the page; I know that the art of persuasion is often to be found in the form of a passage rather than its content. It’s never going to be easy to sort out what we want to believe, and what is ethically sound, and what benefits our society without causing terrible unforeseen cost. There are no simple right answers in the back of the book, but that’s just the deal we signed up for as human beings. All it means is that we have to keep all the debates open all the time. We have to keep trying to put the right words into the best order to express our points of view, and we have to think everything, if only in order to continually reassess the courage of our own convictions. If we believe that the truth will out, we have nothing to fear.


26 thoughts on “On Free Speech

  1. Suppression of words is as bad for a society as the burning of books! By banning certain words through “Political Correctness” those words have gone underground and gained strength. By banning books and the ideas contained in them, those ideas go underground and gain a perverted strength. (I think I have said what I set out to say, but it IS 1.30am so I may not be as lucid as I imagine)

  2. I was shocked by this. In the United States, the first amendment protects this kind of speech, as uncomfortable as it is to know it’s out there. One particularly famous example of this is the US Supreme Court’s opinion in 1977 allowing the National Socialist Party (a neo-nazi group) to hold a march through Skokie, a town with a large Jewish population, including many holocaust survivors. This sums it up: “it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than [for us] to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.”

    This decision says to the German people that they are somehow more susceptible to racial hatred, more credulous, more vulnerable to stupidity than people in other countries. Of course it has to be read in the context of the past, when the German people did turn out to be all those things. But a decision like this doesn’t prevent that from happening again. This court reminds me of parents who tell their children they’re not very smart — and then the children go out and fulfill that prophecy, no matter what they’re capable of. I’ve always thought you have to tell people that they’re capable of the finest things if you want to see that actually happen. It is a mistake, I think, for there to be a legal narrative in Germany that tells its citizens they cannot be trusted to listen to hateful speech and respond to it as sensible people.

  3. Pingback: Milton On Free Speech « myrtias

  4. I don’t see how speech should be any more immune from societal constraints than physical behaviour. Words can injure and lead to injury just as physical acts can, and so there should be limits according to what our societies consider is unacceptable behaviour. Canada’s constitution allows for those limits and so threats, hate speech, and extreme forms of pornography are banned and penalized. To allow any and all hate speech to flourish is to forget the lessons of the Holocaust. Shame on us if we do.

  5. Archie, you sound lucid to me, despite the hour. Personally I agree with you – banning books or burning them has never been much of a solution. Bloglily – I do appreciate what you say about self-fulfilling prophesies. I think you point to a very important area of individual responsibility in debate – the responsibility for whatever we express and the responsibility to follow through the implications of other people’s arguments. I do think that every citizen should be encouraged to acknowledge their responsibilities in this area. I think that has some bearing on your point, Sylvia. I sympathise entirely with your desire for limits and protection. However, I think we ought to distinguish between speech acts which attack private individuals and should be answerable to the law (as in libel) and ideas that enter the public arena (as in the case of publication). Whilst the former case can perhaps be measured for harm, the latter is somewhat resistant to this kind of judgement. By what criterion would we draw the deciding line between speech acts a society can withstand and ones that damage it and require restraint? I would rather look towards the creation of a society that learns to judge for itself, and chooses, for instance, not to buy offensive material. That would end the shelf life of the obscene and the vindictive more quickly than any kind of legal ruling.

  6. Gimli, I think the distinction here is between an argument and a call to violence. If holocaust denial is “hate speech” then so is The Guardian article in which it is reported – not only for reporting that someone denies the holocaust (after all, an idea is a virus and a breath of knowledge spreads it) but also for repeating lies about what the Iranian president said (for the reason I mentioned in the blog).

  7. All I can say is that if educated, modern people could judge for themselves what is right and wrong the Holocaust wouldn’t have happened. We shouldn’t delude ourselves into thinking we are more intelligent and progressive than previous generations. We can all be manipulated, as advertisers and politicians well know. But even if that were not so, it is perfectly right for progressive societies to say that promulgating hatred of racial or other groups is wrong and there will be penalties for those who commit that wrong. We have no problem imposing limits on other aspects of human behaviour, why balk at this one? Do we really think words are meaningless and have no power? I wonder what on earth could be *more* powerful than words!

  8. I confess that I become instinctively defensive when “political correctness” is used a flogging horse for something. Litlove has an international readership so it’s hard for me to judge but as far as I know, it’s generally only negative discriminatory terms that have been “banned”, so to speak. I’d love to see it successfully argued that racial slurs, for example, have more power since they’ve been blacklisted (????) and have then gained some kind of underground legitimacy that undermines the “politically correct” intentions? Does their “ban” prevent the discussion of the ideas in any real sense?

    Of course all rights have limits and there are certain avenues where these are exercised. But as litlove presented it I agree with her. Yes, we can all be manipulated but I do not think that an open arena where weak ideas are aired and then debunked can be termed as such. Governments are powerful institutions. When they stand, more or less, for what is right as the society understands it this is all for the good. But when, due to circumstances, citizens prove particularly vulnerable to a certain rhetoric, it is this free flow of ideas that will prove most beneficial. The less the Establishment has to do with controlling speech, except where it can prove the reasonable harm has been inflicted, the better.

  9. Sylvia – I am so glad you are raising these points because I am sure a lot of people out there agree with you, and it’s important to look at this issue from all angles. To respond to your point from my own perspective, I feel that the Holocaust is a classic example of a situation that was not up for debate and that was put in place by a small number of officials exercising excessive power. It was kept as much a secret as possible in its execution, precisely so that it should not enter a public arena where it would have encounted dissent. I don’t think that free speech is ever going to be able to prevent atrocities from happening, but nor do I think it encourages them. I also think that there is a significant difference between speech and action. To threaten someone is not the same as to rape them, say; when things are still in words they have not (to my mind) passed the point of no return when they are transformed into acts.
    imani – interesting point on those ‘banned’ terms – on a different level, it’s intriguing that words like ‘queer’ have been reclaimed by homosexuals as the most powerful way to regain power over what are otherwise terms of abuse. I also agree with what you say about governments wholeheartedly. They’ve never looked like a good bunch of people to handle essential decisions with far-reaching consequences to me. Perhaps that’s my problem – I’m just not impressed by institutions.

  10. I remember Salman Rushdie writing something on OpenDemocracy stating that freedom of speech is bound to offend everyone sooner or later:

    The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. A fundamental decision needs to be made: do we want to live in a free society or not? Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s positions. (But they don’t shoot.)

    I am worried about the current trend in France to pass laws that tell people what they should say about this or that (slavery, colonisation, the Armenian genocide, etc.). Every club, every group, every family now goes to courts when their feelings have been hurt. This is where I disagree with Gimli/Sylvia: words do not kill like machetes. When you get the words out, maybe the knives stay put a little longer.

    However, I deeply dislike the American (TV) approach to free speech: because everybody is entitled to one’s opinion does not mean every opinion must have the same air time as every other. We see too many talk shows with one evolution scientist and one creationist. Maybe we’ll soon be seing shows with one anti-racist, one ku klux klan, one croix de feu, one fascist, one francist, one national socialist.

    Everyone can have a voice. And all have a duty to fight back unethical and outrageous voices.

  11. I beg to disagree that words do not kill like machetes. If anything they kill more effectively because they can get the machetes working together in large numbers. The Nazi death camps might have been kept somewhat hush-hush for a while but they were enabled by the great masses of Germans who were convinced by the not-so-secret propaganda campaigns that hatred of Jews was just and right and patriotic.

    Words are neither uttered nor received in a vacuum; our brains, surprisingly, are attached to our bodies and even (hard to believe) direct our actions. “Free speech” is a wonderful ideal but we must not forget that it gets exercised in the real world by real, fallible people, with real, flesh-and-blood consequences. Ideals only work in an ideal world; in this world they need a little tempering.

    If anyone is interested in seeing Canada’s statute against hate speech, it is in sections 318 and 319 of the Criminal Code. You’ll find no banned words, “political correctness,” or hypersensitivity here, just sensible limits on the use of speech.

  12. I am deeply sympathetic with Gimli’s point of view because I think hate speech is violence that can wound or kill as surely as a machete. I misspoke. I meant hate thought. A pervasive idea that one group of people is inherently inferior is the intellectual equivalent of a slow genocide. If I could obliterate it by fiat I’d be sorely tempted.

    So, in between the mass murder and the thought of category killing is the speech. Which is the speech: thought or action? Of the two it would seem to be action, insofar as the thought persuades none but the thinker, while the speech has purpose in the world, benign or malevolent. People who don’t pull triggers can nonetheless be convicted of ordering shootings. If I hit you to compel you to act, I have acted twice, and I’m responsible for the hitting and your act. If instead I threaten to hit you to compel you to act, have I not acted at all? My threat was sufficient. Was it speech, or an action?

    I should have restricted my comments to the Holocaust denial, which is an almost entirely different matter, but the discussion has moved and I wanted to have my say, too. I can’t think of any reason to abridge freedom of speech, but I do think classifying speech as something other than action muddies the debate. I do treasure this forum!

  13. Hesitant as I am to comment twice on a single subject, I find myself drawn to this discussion. Possibly I come from a slightly different point of view. Science thrives on the outrageous statement or theory. From the discussion of different theories and the testing of hypotheses truth is eventually uncovered.

    For a thousand years the Earth was flat! The Catholic Church said so and no-one was allowed to say otherwise. Kim Il Sung is a brilliant and caring ruler in North Korea. No one is allowed to say otherwise and so it becomes a perceived truth in North Korea. Mao Dsedung was a God in China, all Chinese writers agreed. Adolph Hitler and Joeseph Stalin were revered through their lifetimes and no dissenting voice was allowed.

    There was no testing of the thesis. Free speech was not permitted.

    By having our speech circumscribed, even in small ways, we are being subject to thought control. Being unable to have questions asked about the Holocaust prevents a rational discussion which proves the truth of the event. Much more important now that there are so few left who experienced the event at first hand.

    As for the language police who try to enforce “Political Correctness”; what a useless exersize! By banning a word, another springs up to express the thought. As a single example, amongst many, “A Person of Colour” has become as perjoritive as “Golliwog” once was and, given a few more years will completely fill the void left by the “n” word. In trying to create a gray version of the English language, the Political Correctness lobby is simply causing society to be inventive.

    My fear is that those people who disapprove of certain words, will become emboldened to disapprove of certain opinions and certain attitudes. Eventually we will find ourselves looking upon Tony Blair (or George Bush or John Howard) as the only possible leader and so why should we have an election?

    One small example, if I may. The Australian David Hicks went to Afghanistan to fight for the then legitimate Government, the Taliban. Suddenly, the USA and Australia became involved in Afghanistan and the Taliban were out of power. David Hicks was captured and has spent five years in Gauntonama as a terrorist, no charge, no sentence, just held and tortured and demonised through a modern “lettre de cachet”. Yet America was not there when Hicks began to fight with the Taliban. The rules changed and there are victims.

    Curtailment of free speech is the same. Either we are free discuss the arguments we choose to discuss, in the language we choose to use, or we are subject to the thin edge of censorship and will, one day, be seperated from free speech.

    I am with Voltaire (was it Voltaire?); “I may not agree with what you say, but I will defend to the death your right to say it”

    Sorry for ranting on, Litlove.

  14. Speaking of outrageous statements, the idea that the Catholic Church promulgated or enforced the “flat earth theory” is completely bogus. It just goes to show how easy it is for people to swallow derogatory statements without “testing the thesis.” This is why we need hate speech laws.

  15. 🙂 Good. Someone was able to stay awake while reading my drivel – just testing. It was actually the “Helio-centric” theory which the Catholic Church opposed. The Earth was fixed in the Heavens and Immovable (assorted Biblical psalms and verses).

    I disagree, this is why we cannot afford “hate speech laws”. The fact that people swallow these statements without testing means we must have the freedom to discuss. That way, when we have a leader who insists on something totally illogical and incorrect and harmful (i.e. The Aids Laws in South Africa) we have a chance to promulgate the truth. Because who defines what is “Hate Speech”? You? Me? A third person with a big stick?

  16. I understand Sylvia’s point about words that can spread hatred and eventually kill. Yet I will side with archie: we have no guarantee on who defines ‘politically correct’, ‘official science, ‘degenerate art’ or ‘hate speech’. So, if we stand by principles and consider that all this is a slippery continuum, we are stuck with freedom of speech.

  17. Let’s look at this another way. Supposing we have a meeting hall full of people discussing an idea, and suppose someone stands up and starts ranting and raving, using terms of abuse and violence. Well, yes naturally security come along and remove him/her from the room. But in many ways that person does the room a favour by expressing ugly ideas in ugly language – that side of the debate has shown itself to be unacceptable. What concerns me more is the other person who stands up and manages to express fundamentally the same idea, but in a well-spoken and polite way, using analogy, perhaps to avoid explicit reference to distasteful notions, and displaying a strong grasp of persuasive rhetoric. Language is hugely flexible and easily able to evade legal barriers. It is precisely because language is so clever and so full of unexpected, unsignalled dangers that I feel we are foolish to think we can legislate it into safety. Ok and let’s suppose this meeting is about (my own particular bug-bear) genetic engineering. Now my feeling is that bad ideas do not do us the favour of revealing themselves as bad from the outset. I have all kinds of reservations about the potential of genetic engineering, particularly in the hands of human beings who’ve shown themselves to have decided ideas about purity in the past, and who are ever more fearful of negative experiences. But in the science-dominated ideology of today, the march of technology goes on almost entirely unchecked. I’m surrounded in my own city by scientists vigorously pursuing genetic engineering projects (the Master of my previous college was part of the team to clone Dolly the sheep) and they are celebrated and heavily funded. The problem is: who knows what will happen in the future? I might be proved right, I might be completely wrong, or it may not be black and white, but at present I am certainly part of a minority whose voice is not often heard. I suppose my sense is that legislation always follows after the event. It is not an effective form of preventative measure. Wouldn’t it be easy for me if someone came out and said something really offensive in the debate about genetics – then I’d have a platform on which to base a more solid argument.Of course no one does – there’s nothing to be offensive about yet. But we need free speech before things happen, so that all sides of an argument can be heard. My opinion is profoundly annoying to many researchers, but at least I may have it. If however we agree to that principle then we have to accept free speech afterwards as well.

    Archie, I went on this long just to make you feel better!

  18. What an interesting discussion you’ve sparked! My gut hurts thinking that someone would deny the Holocaust happened but it hurts even more to think that they are going to jail for it. I truly believe that free speech is essential to a free society and while someone may say something hateful or hurtful it should be allowed because once we start curtailing one kind of speech it is only one small step to curtailing other forms of speech.

  19. I’m begging the indulgence of Litlove and Sylvia (occasionally known as Gimli) here to reproduce (almost) in their entirety the slightly condensed Code sections Gimli has been citing from Canadian law. I have opinions about them, but I will hold my tongue long enough to allow everyone to read them who feels inclined.

    318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

    319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years.

    Wilful promotion of hatred
    (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence . . . two years.

    (3) No person shall be convicted of an offence under subsection (2)

    (a) if he establishes that the statements communicated were true;

    (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

    (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

    (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

  20. David, Thank you for posting those sections of the Law in Canada. As I thought, the wording is very similar to the Laws which apply in Australia. It is OK to promote hatred (which can imply genocide) if you are promoting religious ideas. The rest of the Law is hedged with wonderfully imprecise wording which depends upon opinion. “matters producing or tending to produce feelings of hatred” is a wonderful cover-all. By having that wording, legally, the opposite also applies. Those words can be used to convict if yet another “opinion phrase” is disproven; “In good faith.”

    These Laws, while intended for the protection of freedom of speech, already have an effect on humour. “Blonde”, “Irish”, “Polish” etc. jokes are effectively banned. (I shall continue making blonde jokes as I am a blonde!) It only needs a leader to decide that promoting his democratic opposition is the same as promoting hatred of his own power base and the true strength of these Laws against free speech will be seen.

    “Genocide” is another wonderful word. It means the complete elimination of an identifiable racial or cultural group of people. The claim that Hitler committed genocide upon the Jewish population in Europe is false! He attempted to commit genocide, he went close to committing genocide but he failed to succeed in committing genocide. The fact that some Jews survived proves that he did not commit genocide. Milosovic was tried by the European Court (I forget its exact name)for “genocide” in the Balkans. The Hutu’s in Burundi attempted genocide upon the Tutsis. The only successful genocidal campaign in modern times was the campaign to wipe out the Tasmanian Aboriginal. Don’t get me started on “Decimated”! There is great danger in using “Genocide” in a Law such as this when it is popularly used in such an imprecise way!

    I am trying to become more concise, Litlove 🙂

  21. My dictionary says that genocide is “the mass extermination of human beings, especially of a particular race or nation.” “Mass,” of course, means lots, not all.

    And I’m no lawyer but I have the impression that all laws require quite a bit of interpretation in the courts. If laws were absolutely precise we wouldn’t need lawyers and lawyers wouldn’t need to spend years studying past judgments in their area of practice. Law has been based on precedent for millenia.

    I imagine that the exemption for religion will come up for discussion as Islam grows in Canada. The are certainly verses in the Quran which, if taken literally, advocate violence, if not genocide, against non-Muslims. I believe that Islam is unique in this respect, and was doubtless not on the radar screen when the hate laws were written. (I believe the exemption came about to protect religions that oppose homosexuality.) What to do? Protect the right to preach violent jihad in mosques and accept the potential consequences? Call me chicken but unlike Voltaire I’m not prepared to die so others, of whatever persuasion, can be free to preach hate and violence. Others may be willing to take the risk.

  22. David – thank you so much for doing that extremely sensible thing. That helps focus the discussion immensely. And Archie – don’t change an atom! Unsurprisingly I still agree with Stefanie and Archie on this, because I don’t have a strong faith in the disinterested morality of the law in situations where it’s all in the interpretation. But we really need one of the legal bloggers to comment on that aspect. It’s not my field.

  23. Thank you David for the legal small print. Such laws are indeed always tricky. Do you know that in France, the groups that take it to courts most often on bases of hate speech and racist discrimination are ultra-right (generally implicitly racist, but they do not say it) activists with very good lawyers twisting otherwise good-intentioned laws in very creative ways.

    I will cite Salman Rushdie’s article again, citing Blackadder: “Bad weather is God’s way of telling us we should burn more Catholics.”
    Such a remark directly falls under article 319. (1) of the above laws, and if you imagine one small instant Rowan Atkinson using the word “Muslim” instead, you are likely to very soon have an episode of “Mr Bean in Jail” (for a term not exceeding two years).

  24. Sylvia, I hate to be pedantic (In my opinion, the only valid reason for curtailing freedom of speech) but I have checked a number of dictionaries, on and offline (I have a collection of them). In each case the definition involves complete destruction. I have included those definitions and sources below. I am also concerned that you only choose the Koran as a religious document which advocates the annihilation of non-Muslims. There are also verses in the Talmud and the Old Testament which advocate the same for non-believers in Jehovah. Please do not confuse terrorism which claims to be religiously inspired with religion.

    The Shorter Oxford English Dictionary (1959 edition) – 1944 – Annihilation of a race.

    American Heritage New Dictionary of Cultural Literacy, Third Edition – genocide [(jen-uh-seyed)] – The deliberate destruction of an entire race or nation. The Holocaust conducted by the Nazis in Germany and the Rwandan genocide are examples of attempts at genocide.

    Merriam-Webster’s Medical Dictionary – Main Entry: geno·cide – Function: noun
    : the deliberate and systematic destruction of a racial, political, or cultural group — compare HOMICIDE

    Dictionary.com Unabridged (v 1.1) – gen·o·cide – noun – the deliberate and systematic extermination of a national, racial, political, or cultural group.
    [Origin: 1940–45;

  25. Interestingly, the code includes a definition of genocide… Maybe those legislators aren’t complete morons after all! (Apologies for the sarcasm, but didn’t *anyone* except david read the law? It’s really very short and easy to read.) And the beauty of living in a democracy is that if a law isn’t working up to our expectations, we can amend it! Unlike Hammurabi’s code, ours is not set in stone.

    As I understand it, the exhortations to violence in the Hebrew Bible are specific to places and times in the past, while those in the Quran, if taken literally, are open-ended commandments to be followed by all believers everywhere until the end of time. It takes, uh, interpretation to say that they apply only to 7th century Arabia (in which case all the subsequent Muslim conquests would have been un-Islamic) or that they are war-based metaphors for internal struggle against temptation (again making military conquest un-Islamic). It’s a bit of a stretch but far be it from me to suggest that a religion can’t evolve in its understanding of itself.

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