Why More Speech Does Not Always Work

The boundary between legitimate expression and hate speech in the United Kingdom represents the battle between rights and responsibilities and it has been tested recently. By way of contrast, in the United States the war has, by and large, been won by the right. This stark divergence requires us to answer the following question: why does freedom of speech demand some responsibility and how does this inform the limitations on that right?

In the UK case of Munim Abdul, the claimants had shouted slogans such as ‘burn in hell’ and ‘rapists’ at a parade of British soldiers. Later, they were prosecuted under section 5 of the Public Order Act and the High Court subsequently decided that this did not violate their right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Gross LJ argued that the claimants’ actions went beyond ‘legitimate protest’. Isabel McArdle has written an excellent summary of the case here at the UK Human Rights Blog.

Similarly, members of Muslims Against Crusades (MAC) set large plastic poppies on fire during the two minutes silence on Armistice Day in 2010 as well as shouting phrases such as ‘British soldiers burn in hell’. They are currently being prosecuted under section 5 of the Public Order Act.

Conversely, the US Supreme Court on Wednesday upheld the rights of members of Westboro Baptist Church, in the case of Snyder v Phelps, to make protests at the funerals of US soldiers. The defendants displayed placards, some of which read, ‘Thank God for Dead Soldiers’ and ‘You’re Going to Hell’. Dissenting, Alito J stated that,

[The defendants did not] dispute that their speech was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Commenting on these cases here, Adam Wagner maintains that,

it is difficult to argue that hurtful speech on public issues in the UK is properly free, and that public debate is not being stifled.

The problem with this, and the US jurisprudence on free speech, is that it presupposes that anything said in public becomes part of ‘public debate’ simply because it was said in public. But this does not necessarily follow. For example, radio show host John Gaunt, in a case in 2010, found that shouting at a Government Cabinet Member live on Talksport that he was ‘a Nazi’, an ‘ignorant idiot’ and an ‘ignorant pig’ would not avail him of much free speech protection in the UK. The Court held that his comments had been ‘gratuitously offensive’ with no ‘contextual content or justification’. At the point where the conversation turned into a mere slinging match and Gaunt was simply rattling off insult after insult, I doubt that many people would have considered this ‘public debate’.    

Similarly, it is suggested here that once you cross the threshold into hate speech, your expression immediately loses its status as ‘public debate’ and, consequently, much of its legal protection. There could be an argument that hate speech and ‘hurtful speech’, as Adam Wagner describes it, ought to be treated differently. But it is hard to describe the actions of Munim Abdul and MAC as anything other than threatening, intimidating and disparaging.    

In line with the UK and ECHR understanding of free speech, Steve Heyman argues for a rights-based theory to free speech in the book Extreme Speech and Democracy. He suggests that the most fundamental right that underlies all other rights is the right to recognition: that others recognise you as an autonomous individual endowed with rights. As community can only function peacefully through mutual recognition, in order to be recognised you have a duty to recognise others. Ultimately, he argues, hate speech violates this duty and, thus, your right to recognition. 

More in line with the US jurisprudence, Robert Post argues that public discourse should be protected as much as possible to enable citizens to fully engage in collective self-determination. However, as Heyman argues, when you engage in hate speech you are disrespecting the autonomy of others and refusing to engage in this deliberation. Thus, it is not meaningful to describe hate speech as informing public discourse nor can it assist in collective self-determination.

The point to be made here is that whilst the Westboro Baptist Church are free to express their antipathy towards US military pursuits, and whilst John Gaunt is free to express his reservations about Government policy on foster parents, they cannot do so in a way that undermines the values of human dignity. As Alito J said, dissenting in Snyder,      

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.

Ultimately, it is very easy to say that bad speech can be countered with more speech. Unfortunately,  history is testament to the fact that hate speech can turn nations against minorities. Because individuals are often only presented the ‘bad speech’ side of the story, all too often an idea is allowed to germinate into hardened belief before the ‘more speech’ gets a look in.     

By Yaaser Vanderman

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