Freedland’s argument, in a nutshell, is that there is a tension between “respecting the feelings” of religious minorities and freedom of expression:
[It] is time for today’s liberals to be honest – and admit that the ideals they have clumsily bolted together for three decades often chafe badly. Sometimes one of them is sacrificed for the sake of the other. Better to admit it and to decide consciously which value we are preferring in this case or that, than to pretend there is no conflict. Hard-headed liberalism means hard choices.
Freedland is right, of course about the tension, although wrong about the specifics: he believes that there was a general call for Sheikh Yusuf al-Qaradawi to be “banned”, when in fact what most opponents wanted was for him to be scorned – rather than feted – particularly by supposedly progressive and liberal politicians.
He is also wrong about the nature of that tension and the nature of the political values in question. There’s sense here in going back to some of the basic principles of liberal political philosophy.
Freedom of expression is a foundational principle which is the hallmark of, and underpins, all liberal pluralist societies. It is a principle which, in its purest form, handicaps the state from banning the expression of views. This is not to say that there are no other threats to the free flow of ideas: media monopolies, being sacked for speaking out, or even the presence of loud hecklers are all problematic. However, only the state has the power to ban: be it by enforcing defamation or breach of confidence judgements or by criminalising various forms of speech. The significance of an exercise of state power of that type goes beyond anything that the private sector can muster.
“Not offending people” is certainly a political principle of sorts, but it works at quite a different level from the principle of freedom of expression. I would argue that “understanding and sensitivity” is a civic virtue but – unlike freedom of expression – not a right. John Rawls describes that virtue as “civility”. As Norm puts it:
[T]he pursuit of liberal values does not call upon the instrumentality of the law alone. People may be free to insult the beliefs of others, but many do not avail themselves of this freedom, or do so in rare cases only. We can foster a culture of mutual respect, through ways of behaving and speaking; through making it publicly clear what we regard as civil, and what we regard as unacceptable, social conduct. We can object in many different ways and venues to a play (book, movie, etc.) that demeans or insults others, without our calling for it to be banned. You can solidarize with those whose beliefs are treated contemptuously by others, where they feel it indirectly as an attack on themselves. Movements of solidarity with those who are under attack may sometimes call for changes in the law where these are needed, but they don’t invariably have to. Solidarity can be simply for itself: for what it can achieve in changing attitudes, the balance of political and cultural forces.
This really hits the nail on the head. I should argue sensitively and respectfully with even those with whom I disagree, partly because if I insult them they will not listen to me and be persuaded, but also – more significantly – because I feel that it is incumbent on me, as a participant in a diverse and pluralistic discourse, to treat my opponents and friends alike with respect. I know that offending against cultural taboos which are meaningless to me will nevertheless upset my opponent enormously, and so I should feel that I ought to refrain from doing so.
Alternatively, I might actually want roundly to abuse somebody. Civility is, however, a virtue and if I do blow a gasket during an argument, I may well feel slightly ashamed of myself for not having manifested that virtue.
But this is the crux of the argument. Neither freedom of expression nor civility requires the state to do anything other than not interfere. By contrast, citizens who wish to participate in a the liberal pluralist body politic ought personally to act civilly. However, the principle of civility certainly does not require the state to enforce that value, by criminalising incivility. It is equally inappropriate for me to demand that the state enforce civility as it would be to demand that the state provide me with my own TV station in order to promote free expression.
There will be circumstances, certainly, in which push actually does come to shove, and where there can be no compromise between civility and free expression. Take, for example, the need to defend the expression by an apostate of heretical ideas. In such a situation there is no dilemma; liberals should always require the state to respect the right to free expression, while appreciating that the apostate’s expression will upset some people very much indeed.
There have been circumstances in which a failure by the state to supress a particular type of speech is regarded by members of some cultural minorities as an attack by the state upon them. I can see why they might feel that way. The truth is that, as long as the state is consistently neutral about speech, a failure to prosecute a speaker is never an endorsement of the views expressed. For that reason, the state should always be value-neutral in framing laws which restrict speech.
Let me put that in context.
Freedland believes that race hate laws have:
done more good than harm. It has helped establish a social norm in Britain, rendering the once acceptable racism of the 1970s beyond the pale today.
I disagree. Perhaps the presence of the offence on the statute books has helped to establish such a norm in some small symbolic way. However, integration and familiarity is what has made the difference to the attitudes of our generation; and that has been fostered in part not by rarely used hate speech laws but by frequently invoked laws which protect access by “racial” groups to jobs, services, and goods. I would strongly favour the extension of these laws to established religious minorities: and this is essentially what the Government is proposing.
The incitement to racial hatred laws are, by contrast, a spectral solution only to the problem of incivility. Incitement to violence should be treated as an offence, irrespective of whether the incitement involves calls to arms against people with different views or with a different amount of melanin in their skins. However, to define in law a particular type of incitment as a separate criminal offence, subject to a particular legal definition and a peculiar mechanism for prosecution has not been a sucessful tactic. Few prosecutions have been brought. The first prosecutions were against black nationalists, for saying rude things about white people. And, as we have seen, once you accept that there is a particular need for a “race” hate speech crime, it is difficult to resist calls for the suppression of other forms of “hate speech”: from insults levelled at religious minorities to the supposed hate speech of pornography.
Unsurprisingly, the failure of the state to protect the sensibilities of one cultural group while giving special protection – in the form of anti-incitement or blasphemy laws – to others has given rise to a real sense of grievance by members of religious minorities. The only solution is to put all speech on an equal, value neutral, footing.