We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Free speech is indivisible

Let no one say that the police response to anti-monarchist protests is without precedent:

Nizhny Novgorod, 12 March 2022: Russian police arrest demonstrator for protesting with a BLANK SIGN

London, 13 September 2022: Man threatened with arrest if he wrote ‘not my King’ on blank sheet of paper

It is true that I am tempted to sarcasm when I see all the outrage about this from people who were silent about such things as the police telling someone to take down a tweet because it contained the term “illegal alien” a few days ago, or about five coppers being sent to arrest a man for posting an image of four “LGBTQ+ Progress Pride” flags arranged so the triangular bits formed a swastika.

Still, new recruits to the great cause of free speech are always welcome. Better late than never!

Daniel Hannan had a good response:

So we’re all agreed then? Hate speech laws are wrong? Provided you stop short of incitement to violence, you can insult King Charles, Jesus Christ, the Prophet Muhammad or George Floyd? Because that’s the thing about free speech: it’s an indivisible principle.

28 comments to Free speech is indivisible

  • Steven R

    That’s a great principle and I would love to live in a world where anyone could say anything at anytime without fear of retribution

    Unfortunately we live in a world where we can go from a peaceable protest to high order violence in a heartbeat.

  • (Continuing my point (4) from the previous thread), Niall-pedant-Kilmartin has an issue with the very particular OP example that goes beyond free speech.

    For a US ex-pat, a French tourist and a whole range of other people,

    Not my king

    is a statement of mere fact. The courtesy of a guest might see them not say it at this particular time but they are obviously very entitled to say it.

    For a British citizen, phrases such as ‘not my beloved king’, ‘not a king I care for’, ‘not a king I like’, and others much harsher could all class simply as free speech, but literal “Not my king” could be treated as a denial of their UK citizenship oath by anyone naturalised by parliamentary law.

    Those who trace back in any line to time immemorial (that’s circa 1140 in English law – which includes Natalie) hold their citizenship in contempt of parliamentary statute law. However kingship also descends from time immemorial, so while nullifying nationality is not an option, other penalties might be.

    (I shall skip for now the more involved case of autochthonous Scots such as Niall Kilmartin who are also English citizens by post-natali law.)

    So the situation would seem to allow the officer in charge to say

    Please accept my apologies that my overzealous officers arrested you alleging a speech offence. You are of course perfectly entitled to exercise your free speech right to say what you did. You will now be deported as saying it nullified your citizenship.

    It’s a very technical point, and we can probably assume it will remain so at least until long after the first boat person gets a free trip to Rwanda, but Niall pedant Kilmartin cannot help but think that this very specific case is divisible by a technicality from otherwise-indivisible free speech.

  • Since there is absolutely nothing wrong with republicans expressing anti-monarchist sentiments and objections seem to be that it’s in bad taste (sure, but there’s nothing that says free speech must be tasteful), then what exactly are the cops arresting people for?

    Breach of the peace is one of those catch-all offences the cops use when they can’t arrest people for real crimes (along with loitering and obstruction), they should have been ditched with the police reform of the late ’70s and ’80s.

    Hopefully plod will get sent away with a flea in his ear by the magistrates, should it even get that far.

    Don’t get me wrong, I’m not a republican, just a very watered down monarchist who thinks that we need to be careful of enabling even the weakest forms of lèse-majesté.

    After all, this IS England!*

    * – God save the King…and his fascist regime. 😀

  • Steven R

    I don’t really think the Russians trampling on free speech is all that shocking. It’s a place where due process means you didn’t get a show trial and they tell you why you are getting a bullet behind the ear.

    As far as the others, It’s not right, but it is the world we live in and isn’t all that shocking. All animals are equal, as are political causes, but some are more equal than others…and right now border-jumping squatter-leaches and the Alphabet Brigade are all the rage.

  • bobby b

    “Provided you stop short of incitement to violence, you can insult King Charles, Jesus Christ, the Prophet Muhammad or George Floyd?”

    There’s that catch-all proviso again, though, which always enables the heckler’s veto – and which is why everyone now claims that speech is violence, that their safety is impinged when I defend my beliefs in their presence.

    I’m beginning to think that “incitement to violence” needs to be acceptable, and that we draw the line instead at actual physical violence, if we wish to be true to free speech principles. Depends on what we value most, I guess.

    Given what I heard in Minneapolis during the rioting time, we seem to have already made that leap for speakers of leftist sentiment – “burn that precinct down!” was free speech at the time. Of course, we then let the physical violence pass without response, too. So, the actual line we decide to draw probably isn’t as important as enforcing whatever it is equally.

  • Paul Marks

    No one has to listen to or read stuff they do not want to, if I do not like a television show – I turn it off, if I do not like what a protestor is shouting in the street – I walk away, if I find what someone is saying on Twitter offensive – I block them. They can carry on writing “Paul Marks should be gassed” (or whatever it is) – but as I am not reading it anymore, I could not give a damn.

    What I do not is threaten people. I do not try and take their jobs from them, or arrest them, or put them in prison, or fine them.

    I do not do this – and neither should anyone else. Not the government, not the corporations (as if there was any real difference), no one.

    Say what you like, write what you like – I do not have to listen to it, and I do not have to read it. So, it is none of my business.

  • Jim

    Its all grist to my mill that says the so called ‘democratic and free’ West is no different to the the likes of Putin and Xi. The iron fist is just a bit more velvety here thats all. But the power is in an identical place – not with the people but the rulers. We could become just as bad as them in a trice, and Covid showed us it wouldn’t even require any new laws. They are all there, its just a case of who happens to be at the helm. The courts are no use, they are bought and paid for. It was noticeable they refused blankly to even consider the legality of the covid regulations, despite considerable legal opinion they were ultra vires. Nope, nothing to see here, the courts aren’t on the side of the people either. We are in an Orwellian world, its just most people haven’t realised it yet.

  • Snorri Godhi

    No one has to listen to or read stuff they do not want to

    With one qualification: if one wants to attend a funeral, one does have to listen to hecklers insulting the deceased. In this case, i feel that the police removing hecklers might be justified, with appropriate safeguards: People holding blank signs do not qualify as hecklers.

  • Gerryireland

    I think that’s something of an exaggeration?

    The west as a whole and in general is much more free than Russia or China for example.

  • Stuart Noyes

    Surely this incitement to violence is a crock? That puts the responsibility for an act of violence on the person who verbally communicated.

  • TomJ

    The idea (bandied around by some eejits in response to these arrests) that it is now effectively illegal to advocate for a republic is nonsense, and I am not aware of any royalists who say that it should be; any who did would be labelled wrong, I suspect, by the majority of their fellow Royalists up to His Majesty. What caused the arrests was the time, place and manner of the arrestees saying what they said.

    I don’t think anyone actually believes the right to free speech means one should be able to say what ever one wants, whenever one wants in whatever manner one wants; bursting into a christening with expletive-laden diatribes on the evils of big business, or to a wedding shouting about the plight of the orang utans would be met with short shrift and, I suspect, most people would say rightfully so whether or not the content of the outbursts included incitement to violence. When people have gathered for a purpose, trying to hijack the gathering to publicise your pet peeve is a breach of the sort of mutual accommodation necessary for a functioning society. I grant that it is possible to so limit the times and places where a given view may be expressed to the point of effectively banning it, but I don’t think we’re in that situation here, nor that we are particularly close.

  • Steven R

    “I can say this and no no one can stop me” versus there’s a time and place” versus “how about some decorum?”

  • Fraser Orr

    bobby b
    Given what I heard in Minneapolis during the rioting time, we seem to have already made that leap for speakers of leftist sentiment – “burn that precinct down!”

    But to me the crime isn’t saying “burn it down”, the crime is burning it down. As soon as you start down this road you give up the whole principle of free speech, which is to say it isn’t absolute.

    The example, which I am sure you are very aware of given your background, is the response one often hears when advocating freedom of speech, which is “ah but you can’t cry fire in a crowded theater”. But to me this is a perfect illustration of the problem. (I’m not going to keep saying “as you know” since I am sure you studied this case in law school in far more depth than I know it), but this rejoinder comes from Oliver Wendell Holmes during an appeal in a case where the government were prosecuting several defendants for distributing publications advocating opposition to the draft for World War I.

    It is the perfect illustration of the slippery slope: a seemingly reasonable restriction on freedom of speech being used to undermine that most fundamental of free speech principles — the right to protest what the government is doing or demanding of us.

    And to be clear, the defendants in this case spent several years in jail, convicted under the Espionage Act, for the crime of protesting government policy, for objecting to the government’s war policy. That is what “crying fire in a crowded theater” actually means.

  • Fraser Orr (September 14, 2022 at 3:28 pm), IIRC, Holmes came to understand he was on a slippery slope. Over a year or two, he called three President-Wilson-versus-free-speech cases for the government but then called three more against that government.

    These latter rulings made up part of beating back Wilson’s attempt to revise the constitution in line with progressive ideas of the time (ideas which could with reason be described as a rewriting of aspects of Confederate ideology for the post-1900s).

  • Graham

    @Paul Marks

    “No one has to listen to or read stuff they do not want to, if I do not like a television show – I turn it off, if I do not like what a protestor is shouting in the street – I walk away, … ”

    There is an interesting point to discuss here. What if the objectionable material is everywhere, and is imposed on us by the government, polluting all our public spaces? I think there is a right to rebel against it by defacing or ripping down government propaganda. I did some of that during the covid tyranny. I don’t really think I was attacking free speech, or exercising censorship, but I accept that there are two sides to the question.

    Yes, I agree that free speech is indivisible and absolute.

  • Steven R

    The difference is threats require a response. You can say, “I want a new system of government,” but not, “let’s go right now kill the king.” One is a statement and the other is a threat to the powers that be, who WILL react. It’s like the difference between, “it’s a good idea to get insurance for your business because thieves abound,” and, “pay the don protection money or else.” Setting someone in motion that results is a murder shouldn’t be a free pass just because you weren’t physically at the scene of the crime. Charlie Manson made that argument and the judges said it was a no go.

    The old saw of “your right to swing your fist through the air ends where my nose begins” is along those same lines. If I, a mere citizen, or a power structure, legitimately feel threatened, expect a response.

  • Ian

    I’m beginning to think that “incitement to violence” needs to be acceptable, and that we draw the line instead at actual physical violence, if we wish to be true to free speech principles. Depends on what we value most, I guess.

    That’s neither possible nor desirable. By that standard, I could give an order to someone to go and murder someone else. The relevant ruling in US jurisprudence is Brandenburg v. Ohio, which created the “imminent lawless action” standard, which is very strict and better than the previous “clear and present danger” standard. This is a founding principle of the Free Speech Union, and is thoroughly defensible. But the proximity of speech to violence is an absolutely crucial question, and (to my joy) got me a QOTD here a while back.

  • Stuart Noyes

    Speech is just air coming from people’s mouths. It causes no physical injuries. It might upset us or hurt our feelings. Whatever is said to us, we have the choice to ignore or judge the orator how we see fit. If we decide to act physically as a consequence, that is our responsibility, not that of the speaker.

  • bobby b

    Ian
    September 14, 2022 at 8:38 pm

    “That’s neither possible nor desirable. By that standard, I could give an order to someone to go and murder someone else. The relevant ruling in US jurisprudence is Brandenburg v. Ohio, which created the “imminent lawless action” standard, which is very strict and better than the previous “clear and present danger” standard. This is a founding principle of the Free Speech Union, and is thoroughly defensible.”

    Sure, but don’t throw away my caveat: ” . . . if we wish to be true to free speech principles. Depends on what we value most, I guess.”

    In our present situation, free speech is supremely protected for some, and illusory for others. I’d prefer that the PTB try to move it one way or the other, if only so that the fight would have a different alignment than the left/right alignment that pervades every other controversy.

    I understand that we need to quash the great orator who goads the lynch mob on to the jail. But we also need some reasonable agreement on what “violence” means.

  • Steven R

    Can speech ever be an element of a crime? If I walk into a bank and tell the teller I have a gun so empty the register, but never show a gun, is that still a crime? She didn’t know what I did or didn’t have, was not in a position to call my bluff or even refuse, so what crime was committed when she could have simply ignored me?

    What if I tell someone of diminished capacity who can’t discern right from wrong to do something like go into a park and rape the first woman he sees. Is that a crime?

    Or if I publish the hidden address of a hated public figure and the words “will no one rid me of this turbulent whatever?” and someone kills him. It wasn’t a crime when Henry II said it in those knights killed Thomas Beckett, although the Pope considered it a sin, but if someone takes the hint and does the needful, am I completely blameless even though I provided the address knowing the likely outcome?

    Obviously I am picking outliers, but if those examples of speech rise to the level of crime, then speech is on a sliding scale of what does and does not constitute free speech. Where is the limit?

    It’s abit like the old jibe of a man approaches a beautiful woman and says to her, “would you accept a million dollars to sleep with me?” She says yes. He then says, “would you take ten dollars to sleep with me?” She indignantly says, “no, what kind of a woman do you think I am?” His replay? “We’ve already established what kind of a woman you are. Now we’re just haggling over the price.”

  • BelgianBrian

    You know the old adage? ‘The devil makes work for idle hands’

    … we have no alternative, because otherwise, unless we take the action necessary, and we build again in a greener and more sustainable and more inclusive way, then we will end up having more and more pandemics and more and more disasters from every, ever accelerating global warming and climate change. So, this is the one moment, as you’ve all been saying, when we have to make as much progress as we can …

    –H.R.H. King Charles III

    God save the King(1)!

    Allegedly, one of the main shareholders of Blackrock. Which is at the forefront of imposing ESG on industry worldwide.

    God help the rest of us too.

  • Alex

    Can speech ever be an element of a crime? If I walk into a bank and tell the teller I have a gun so empty the register, but never show a gun, is that still a crime? She didn’t know what I did or didn’t have, was not in a position to call my bluff or even refuse, so what crime was committed when she could have simply ignored me?

    That would fall under the criminal offence of “Intimidation” under many jurisdictions, in England and Wales I believe it could fall under “Threatening behaviour – fear or provocation of violence” per the Public Order Act 1986. Taking the money emptied from the register would amount to aggravated theft (robbery).

    What if I tell someone of diminished capacity who can’t discern right from wrong to do something like go into a park and rape the first woman he sees. Is that a crime?

    Very good hypothetical, especially considering the possibility that one could “jokingly” suggest such a thing to a suggestible person who does not outwardly appear to be of diminished mental capacity, or one who has not been diagnosed as such. An interesting scenario, potentially a useful canary.

    Or if I publish the hidden address of a hated public figure and the words “will no one rid me of this turbulent whatever?” and someone kills him. It wasn’t a crime when Henry II said it in those knights killed Thomas Beckett, although the Pope considered it a sin, but if someone takes the hint and does the needful, am I completely blameless even though I provided the address knowing the likely outcome?

    A more subtle example might be making the address of a known offender available to a vigilante group e.g. on Facebook – is the act of providing the address in itself a crime knowing the likely outcome? Freedom of information is generally considered a good thing. Recently on a Facebook group I am a member of someone made it known that a paedophile was living in a nearby block of flats, several women posted that someone should do something about it – were those comments incitement?

  • Gerryireland

    I think that incitement becomes a crime at some point, because if it is not then it is impossible ever to touch the actual architects of crime and terrorism.

    These people do make happen what happens by their powers of convincing speech. They must in some way then be culpable when what they planned does take place.

  • The following is to think about, in view of some rather strange (to me) separation of speech from action in the thread above, when the speech is an essential part of criminal action – ordering a cashier to hand-over the money in a safe inaccessible to the would-be robber, for example.

    Expressing his activities in terms of Section 23 of our criminal code ordinance, we should say that they were mainly those of a person soliciting or giving counsel or advice to others … But … these crimes were committed en masse, not only as regards the number of victims, but also in regard to the number of those who perpetrated the crime, and the extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands.

    The above is excerpted from the Jerusalem court’s judgement upon Adolf Eichmann. The Jewish judges were not motivated to understate the nature of Eichmann’s guilt. On the contrary, they exercised moral courage when they rephrased the case of the prosecution who “unable to understand a mass murderer who never killed … were constantly trying to prove individual murder”.

    I think that incitement becomes a crime at some point, because if it is not then it is impossible ever to touch the actual architects of crime and terrorism. (Gerryireland, September 15, 2022 at 12:45 pm)

    Is ‘soliciting or giving counsel or advice” inciting? (One could argue it was. Also, just for the record, Eichmann is also known to have, for example, warned his French-based staff that he’d have to “drop France” if they could not find enough French Jews to deport, which did incite them to work harder by threatening them with losing their more-comfortable-than-most wartime jobs if they didn’t.)

    Speech alone is not action, but human actions of any complexity – including criminal ones – use speech to coordinate their actors.

  • bobby b

    Steven R
    September 14, 2022 at 11:28 pm

    “Can speech ever be an element of a crime?”

    What does “crime” mean? If your society defines “hate speech” as a crime, then it’s a crime. If not, no.

    Yes, this is a rather cheap reply, but I think it works.

    There are always going to be differing interpretations of what constitutes allowable speech. It cycles back and forth as attitudes change. But for me, that’s not the most important issue.

    I’d leave that argument to others, so long as whatever definition settled upon was enforced evenly and without regard to “side.” We lack that attribute right now. If I say something good about J.K. Rowling, it’s hate speech, but if someone else says whites should die, it’s “expression.”

    If we had even application, then the line of demarcation would have a better chance of being reasonable, as the lawmakers would have to contemplate enforcement on their own people as well as on their opponents.

    So I think that factor becomes more important than trying to arrive at some bright definitional line of where speech becomes a crime. Without evenness in application, it really doesn’t matter how you define it. We’ll always lose.

    Gerryireland
    September 15, 2022 at 12:45 pm

    I think that incitement becomes a crime at some point . . .

    Sure, but the big fight is always going to be over where that point lies, and whether that point is enforced evenly.

  • Paul Marks

    Graham – yes, I know what you mean, the endless official propaganda (the “Nudge Units” and so on) – and how not just government, but also the Corporations endlessly push the “Woke” message.

    It is very hard to avoid when it is everywhere, in almost every television show and commercial break, on the radio, on posters in the streets, and-so-on.

    It is despicable – and I oppose it root-and-branch.

    “But what to do to end it?” – Ah now there is the problem.

Leave a Reply

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>