When is it necessary to protect free speech? Not when you express an opinion everyone agrees with, but when your opinion doesn’t align with the majority view or with the official position of the state, regardless of how hateful your opinion might be.
You take a risk when you don’t toe the line. You make yourself vulnerable to the violence of the mob or of the state.
It isn’t necessary to protect speech with special rights in a society that doesn’t value debate. However, since debate is the lifeblood of democracy, you can measure to what extent a society is democratic by how far it is willing to go to protect speech.
Not any kind of speech, to be sure, not the kind that incites violence, for instance, but the use of speech to express an opinion, including an awful, stupid, even a hateful one.
From this angle, the UK seems to be a democracy in name only. In 2023, the police made over 12 000 arrests for offensive online communications, averaging to about 30 per day, according to a recent report in The Times.
In the UK, a message causing “annoyance, inconvenience or anxiety” is sufficient as a legal basis for making an arrest, according to Section 127 of the Communications Act of 2003 and the Malicious Communications Act of 1988.
Or consider cancel culture in the US from 2014-2015 to 2023.
To put matters in a historical light, note that an estimated 100 to 150 professors in the US lost their academic post during McCarthyism, from 1947 to 1957, because they expressed left-leaning views or were believed by state authorities to hold left-leaning views.
According to the data collected by Rikki Schlott and Greg Lukianoff (one of the founders and the lawyer for FIRE, the Foundation for Individual Rights and Expression) in their 2023 book The Cancelling of the American Mind, an estimated 200 professors in the US lost their academic post from 2014 to 2023 for expressing views at variance with woke ideology or they were believed by the online mob to hold views at variance with it.
More professors have had their employment terminated during the decade of cancel culture than during McCarthyism, not through the abuse of state power but through the power exercised by social media, private corporations and individuals in leadership positions at universities.
In 2015, FIRE reviewed 807 cases of rights violations at different universities. Professors were either unlawfully put on unpaid leave or their contracts were unlawfully terminated. By 2020, the number had soared to 1 530 cases.
According to a 2022 national survey in the US, 45% of liberal faculty indicated they would be willing to discriminate against job candidates on the grounds of their political affiliation.
According to 2021 research conducted by Eric Kaufmann of the Center for the Study of Partisanship and Ideology, “one in five faculty members admitted to having discriminated against a grant proposal they considered right-leaning”.
Lukianoff and Schlott add that, “Personal attacks, dismissive clichés and an ever-growing body of taboos abound in virtual discourse. Rules of arguing that bring society closer to the truth are pushed to the wayside in favour of techniques that let you off the hook from actually engaging with your opponents.”
The left protects itself from alternative views and narratives with the false supposition that “bad people only have bad opinions”. Anyone who doesn’t identify as left-leaning is de facto bad. Their competing view can be discredited without having to engage with it.
Once it becomes impossible to express a dissenting view without the fear of losing one’s job, of being hanged in the court of public opinion or of being detained and questioned by the police, individual liberty and democracy are imperilled.
Jonathan Rauch’s opening statement in his 1993 Kindly Inquisitors still rings true today: “A very dangerous principle is now being established as a social right: Thou shalt not hurt others with words. This principle is a menace — and not just to civil liberties. At bottom it threatens liberal inquiry — that is, science itself.”
Neither democracy nor science can survive in a society where offensive, contrarian and even hateful ideas are taboo — indeed, where the majority feels that a person’s opinions are an existential threat, as were the opinions of Charlie Kirk, according to the left, or misleading and false, as was the statement Jimmy Kimmel made about Kirk’s assassin on his show the other night.
A chromatically diverse society that tries to establish political and intellectual uniformity by censoring every way of thinking except its own sounds the death knell of science, technological innovation and democracy.
I fear that, since 2014 with the rise of cancel culture, we have entered a neo-counter-Enlightenment, a new illiberalism, dogmatism and political tribalism that relentlessly attacks the values and rights that make for a free and open society, starting with the right to dissent from the majority opinion, whether it is on the left or the right.
Should hate speech be banned? Of course not! To use the standard example, should Holocaust denials be made illegal, as they are, for instance, in some European countries? Of course not!
There is no remedy against hate speech, legal or other, except more speech.
You expose the Holocaust denier for the swindler he is in public by producing evidence, both written and oral.
Don’t believe for one second that his hatred will disappear by repressing his ideas through the force of law. Repress them, and his hatred will grow and fester in the dark.
It will attract to itself other pathological hatreds. Until it finds another avenue and medium of expression — other than speech, that is — notably, violence.
I am not a free speech absolutist. No one can seriously maintain that position. Incitements to violence are, and should remain, illegal. Crying, “Fire!” in a theatre (when there isn’t one) should be illegal and fined.
Defamation laws protect ordinary citizens from authoritative institutions like the press. Imagine The Guardian printed a story about your husband which falsely claims he’s a suspect in a pedophile ring. The story would stick to him forever. It would cause him to lose his job, his wife and his children.
Free speech is indispensable as a means, not as an end in itself.
It is indispensable if what you desire is a free and open society — and if what you desire is simply to think for yourself.
Rafael Winkler is a professor in the philosophy department at the University of Johannesburg.
Why hate speech should not be banned and why there is no way of dealing with it — except more speech
