This blog is useful for many things: a jotter where I can experiment with half formed ideas; an outlet to vent my frustration at some form of shoddy public thinking; to impart advice or recommendations; or simply a place to marvel at the wonderful things that humanity or nature has created.
Today, however, it serves the useful purpose of providing l’espirit d’escalier—an opportunity to add to a conversation, after it has concluded!
The new Labour MP for Kensington & Chelsea is Emma Dent Coad, and she has caused controversy at the Labour Party conference by being rude about the royal family. Some of the things she said about Prince Harry have turned out to be false, but she also made some pertinent points about how they spend taxpayers money. This has prompted a conversation about the limits of civil and respectable speech, and echoes some of the discussion in the USA right now, about whether athletes who #TakeAKnee during the national anthem are showing this respect, and if so, to whom.
All this is ripe for discussion on a call-in radio show. Eddie Nestor was leading the debate on his BBC drive time show yesterday, and I went on air to make an uncompromising case for free speech. You can listen to the entire show again on the BBC iPlayer, either on the web or on the app, for the next thirty days. You can also listen to my contribution on SoundCloud, or via the player below.
During my discussion with Eddie, I first made the point that laws against criticising the crown or the state have been abolished in the UK. I was actually part of the campaign to get them abolished, working with Liberal Democrat politicians in the House of Commons and the House of Lords. As a result, seditious libel and criminal defamation were abolished as part of the Coroners & Justice Act 2009.
Eddie Nestor and I also discussed hate speech. I took the view that while hate speech was abhorrent, it was wrong to censor it through the criminal law.
I was also pleased to make the point that the problem with hate speech is that definitions tend to expand, with more and more ideas and epithets being labelled as ‘hate’ that should be censored, based only on subjective judgments.
During the conversation and afterwards, Eddie took the view that I was putting forward quite an extreme position. And he was probably right, because there was not much time to caveat my contribution. This was a shame because free speech is a complex issue and of course there are many unresolved issues. The classical liberal view seems right to me: we should limit free speech and other rights only at the point at which that speech causes harm, not offence. But as I have said and written elsewhere, whether words cause harm, and whether that kind of harm is the same as that caused by physical violence, is the nub of most contemporary free speech disagreements.
I did mention international cases, but only briefly. I regret not having time to expand on the lessons learnt from authoritarian governments. People in power like to hide behind national symbols (such as a flag or a monarch) as a way of deflecting criticism. Many other countries around the world have laws which criminalise insult to the monarch, the president or the judiciary, using the idea of ‘respect’ to stifle criticism. In Turkey there is even a law, Article 301, which criminalises insult to ‘Turkishness’ (whatever that means). The aim of these laws is to equate criticism of individual leaders with criticism of the entire country. And of course, being seen to be protecting those symbols is a demonstration of piety and patriotism, which is usually a vote-winner.
This is what has happened with the current #TakeAKnee furore. The crucial issue of racism has been obscured by a pious argument about ‘respect’. It is particularly absurd that such a debate should be happening in the USA, which has a such strong tradition of free speech. It is sad to see President Trump try to push the same political buttons that have worked so well for illiberal regimes elsewhere in time and place.
General John Kelly totally agrees w/ my stance on NFL players and the fact that they should not be disrespecting our FLAG or GREAT COUNTRY!
— Donald J. Trump (@realDonaldTrump) September 25, 2017
But the American case might be unique. In stark contrast to the laws of most other countries that are run by demagogues, the 1st Amendment case law (Texas v. Johnson, 491 U.S. 397, 1989) explicitly protects flag burning and the ‘disrespect’ of national symbols. Without the threat of coercion that a law protecting national symbols would provide, President Trump’s divisive comments about #TakeAKnee have nowhere to go. The vitriol on mainstream and social media about the NFL protests may seem hideous in the moment, but I suspect in the long run the silent protests will come to be seen for what they really are: a respectful and profoundly patriotic protest against a deep structural injustice in a country that has the potential to do be so much better, and do so much more.