Free Speech and its Enemies by Lord Jonathan Sumption

Keynote for the Free Speech Union's AGM and Conference.

Christchurch Town Hall. 4 November 2023.

Article 19 of the United Nations Universal Declaration of Human Rights requires states to “guarantee to all people the freedom to seek, receive or impart information or ideas of any kind, either orally, in writing or in print, in the form of art, or through any other media of a person’s choice.” Freedom of expression is probably the most widely acknowledged human right in the world. Most national and international charters of rights contain a provision similar to article 19 of the Universal Declaration. Lip-service is paid to it even in totalitarian states. Freedom of expression is not worth much in Russia or North Korea, but their constitutions guarantee it in very similar terms. Yet, although the law recognises freedom of expression as a cultural value of great importance, it is today under greater threat than any other human right.  This is happening even, perhaps especially, in liberal democracies such as the United Kingdom, the United States and perhaps in New Zealand too. How are we to explain this paradox?

Our approach to the whole issue of free speech is still largely moulded by attitudes born in the eighteenth century Enlightenment, when the main enemy of freedom of expression was the state and certain quasi-state institutions such as the established churches. But in modern liberal democracies, the real enemy of free speech is not the state. It is the pressure of opinion from our fellow-citizens. This is not a new insight, but it is a frequently forgotten one. Most of the issues were recognised by the great Victorian apostle of free speech John Stuart Mill, a thinker whose uncanny ability to anticipate the dilemmas of our own age can still take us by surprise. Mill foresaw that in a democratic age, such as was just dawning in Victorian Britain, a culture of conformity would be a greater threat to freedom of expression than any action of the state. Society, he wrote, is capable of practising “a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life and enslaving the soul itself.”

Tolerance does not come naturally to human beings. For most of human history, what people believed about the natural world, about government and society and about the moral codes of humanity was laid down by authority, usually by people claiming to speak in the name of God. Pluralism and diversity of opinion have only been accepted as desirable for the last three or four centuries. They are essentially the legacy of the scientific revolution of the 17th century and the European enlightenment of the eighteenth. These movements rejected mere authority as a source of truth, in favour of observation, reasoning and rational discourse. But like all cultural phenomena, this is a fragile construct. In recent years, we have reverted to the older, more authoritarian model which prevailed before the 17th century, although God no longer has much to do with it.

A large part of the explanation has been the decline of individualism. Mill’s outlook on life was profoundly individualist. He once declared that if all mankind were of one opinion and only one person of the contrary opinion, there could be no justification for silencing him. There have been times when individualism was the dominant theme of public discourse. But today it is widely rejected as a social value. It is regarded as selfish, uncaring and antisocial. This  attitude has infected the debate about the limits of freedom, and undermined the case for freedom of expression. It reflects a view of society as a single great organism which must have a single collective notion of what is true and good. Free speech is seen as a tool of oppression, which leaves the field open to powerful interests. Few things are more evocative of this outlook than the phrase “Repressive tolerance”, which was the title of a famous essay by the American Marxist Herbert Marcuse published in 1965.

It is true that in a world of free speech, the most powerful voices will those of people influential enough to have a public platform. This is so even in an age when speech has been democratised by social media. However in a world of free speech what the powerful say will be open to challenge. The alternative to free speech is a world in which public discourse is dominated by a different and more sinister form of power – the power of those with loud enough voices and sharp enough elbows to drown out others. That power will not be open to challenge. The idea of a community with a common outlook on the world sounds more inviting than a community divided by ideological or economic conflict. However, it must be obvious that as long as human beings retain their individuality, their intellectual curiosity and their scepticism, a common outlook cannot be achieved without systematic coercion. What we are witnessing today is a powerful movement to achieve conformity by systematic coercion.

John Stuart Mill anticipated many things, but he did not anticipate the internet. Social media can conjure up instant online lynch mobs. They make a powerful amplifier available to the most intolerant strands of opinion. The algorithms which determine what material is placed under people’s noses expose them only to sentiments which they already agree with, thus intensifying their opinions and eliminating not only dissent but even nuance and moderation. Mill assumed that the pressure to conform would come from self-righteous majorities. But modern modes of communication have undermined that assumption. Social media have conferred immense power on self-righteous minorities, often quite small minorities.

The most remarkable illustration is the vicious campaign currently being conducted by transgender groups to silence those who believe that gender is the same as sex and is an immutable biological fact. Polling evidence suggests that overwhelming majority of people believe that gender is determined at birth and cannot be altered by medical or surgical intervention let alone by simple choice. That view is consistent with the current scientific orthodoxy, which regards gender as binary. It is precisely because the case made by transgender activists has no objective scientific basis and little support in the population at large that they feel obliged to proceed by bullying and violence. Pressure from this noisy minority has created a situation in which the public expression of the prevailing and probably correct view about gender can lead to dismissal from employment, the cancellation of speaking engagements and publication contracts, the withdrawal of essential financial facilities such as bank accounts or payment systems, and an avalanche of public shaming and abuse.

John Stuart Mill taught that the only purpose for which power might properly be exercised against individuals against their will was to prevent harm to others. But what we are presently witnessing is a subtle redefinition of the whole concept of harm so as to cover the harm said to be caused by having to endure contradiction. The argument is that words wound, especially when they relate to another person’s identity or status. Words are therefore viewed as a form of violence in much the same way as physical assault. On this view of the matter, a university or a workplace where a person is exposed to disagreement with his strongly held opinions must be regarded, in the standard catch-phrase, as “unsafe”. Yet the difference between violence and words is obvious. Violence is coercive. Words, even if offensive, are not coercive except in those cases where they are calculated to provoke violence. Yet in North America, Britain and much of the Anglosphere, this notion of harm has captured the universities and the human resources departments of many large employers. They have complaint channels, often anonymous, by which aggrieved students and employees can claim to have been offended. Complaints commonly result in suspension and disciplinary proceedings and may imperil careers. Recent research in the United States suggests that 29 per cent of university professors have been pressured by the university authorities into avoiding controversial subjects; 16 per cent have been either been disciplined or threatened with discipline for their words, their teaching or their academic research, while another 7 per cent say that they have been investigated. Those working on any subject involving ethnic or religious sensitivities are particularly vulnerable. More than 80% of students report that they self-censor their work for fear of stepping out of line. In Britain there has been no equivalent survey, but anecdotal evidence suggests that the problem is just as acute there. In New Zealand, disciplinary proceedings were initiated by the New Zealand Royal Society against the three members who dared to criticize in a letter to a magazine the government’s plans to confer on Maori indigenous knowledge a status equivalent to empirical science. The proceedings were dropped after protests by other members of the society. This incident has at least had the advantage of provoking a re-examination of the threats to freedom of expression in New Zealand’s universities.

Underlying much of this debate is a fundamental challenge to the objective notion of harm. When interest groups object to some one’s opinion, they commonly call for a subjective approach to its impact. Harm is whatever the relevant group perceives as harm. It depends on their “lived experience”, as the phrase goes. This way of looking at the harm done by free speech is particularly common when the offended group is an ethnic, religious or sexual minority. The desire to accommodate minorities who feel themselves oppressed is understandable. It assists social inclusion. But carried to its logical extreme it gives them a right of veto, an entitlement to silence opinions to which they object. And it is being carried to its logical extreme. In many countries, including Britain, hate speech is in some circumstances a criminal offence or an aggravating factor when accompanied by some other criminal conduct. The British police and prosecution authorities have agreed upon a definition of their own devising, according to which a hate crime means any action which is perceived by the victim or any other person, to be motivated by hostility or prejudice. In other words, they have adopted a subjective definition dependent on the feelings of the victim rather than an objective assessment of the words used. In New Zealand the same definition has been adopted word for word by the New Zealand police in its policy statement on hate crime, although it has no statutory justification in either country.

All of these problems have been intensified by a powerful generational divide. Those who seek to suppress unwelcome views are not all young, but the power behind them is unquestionably the anger of the under-thirties. A mass of anecdotal evidence suggests that venues, publishers, and other media who shun controversial views are often pushed into it by their junior staff. Their concern is not that the product will fail to sell. It is that it may sell too well to people who may be persuaded by it. Polling evidence confirms the picture on a broader basis. Successive surveys by the Washington-based Pew Research Institute suggest that support for democracy is declining among the young in much of the west, especially in Britain and America.

This rage of a younger generation against their own societies has complex causes which would warrant a whole lecture to itself, but it is not wholly irrational. Liberal democracy has always depended on economic good fortune. The turn in the economic fortunes of western democracies, both absolutely and relative to rising economic powers like China, has persuaded a whole generation that they will be the first cohort for many decades who will be worse off than their parents. The post-war generation seems to them to have lived on the fat of the land, deferring intractable issues like climate change, capricious patterns of inequality and poisonous race relations for their children and grandchildren to deal with. The young get a raw deal in many western democracies, but especially in Britain. Domestic issues have disadvantaged young people relative to their elders: housing shortage which have eclipsed their hoped of owning their homes, university fees which burden them with heavy debts at outset of their working lives, and the priority which the tax and benefit systems give to the old. The Scottish referendum of 2014, the European referendum of 2016 and every general election since 2010 disclosed a profound gulf between the political instincts of older and younger generations.

The perceived power of vested interests and the inertia of democratic decision-making, have combined to persuade many of them that debate is worthless and  direct action the only answer. The European and American sense of moral and intellectual superiority provokes attempts by a younger generation to discredit their legacy. Hence the obsession with the eighteenth century slave-trade, the impact of the Black Lives Matter movement even in societies such as Britain where the police do not routinely murder people of colour, the attack on statues of past heroes, the demands for “decolonisation” of school and university syllabuses, and so on. The influential French philosopher Michel Foucault argued that what people regard as objective truth or independent opinion is really no more than the product of entrenched power structures. Debate is pointless in such a world. To get anywhere, you have to  break the power structures. I do not imagine that the young enemies of free speech have read Foucault’s opaque prose. But many of them act on the same principle. An angry and frustrated generation is unlikely to accept the conventions of rational discourse or the messy compromises of democratic politics as readily as their parents did.

These developments have been a long time in the making and have caught us unawares. They have fundamentally changed the argument about freedom of expression. The issue now pits different groups of citizens and different generations against each other. The people who scream abuse at their adversaries from the roadside or from their social media accounts would claim to be exercising their own rights of free expression. The impact of their anger is indirect. They create an oppressive climate in which other people are silenced and may lose their careers, their livelihoods and their reputation, or else may simply be forced to keep away from controversial subjects. The screamers do not themselves bring about these consequences. They simply influence the mood in a way which causes other people such as editors, publishers, universities and employers to persecute dissenters, because in a world of heightened intellectual tensions they prefer to keep their heads down. An editor is under no obligation to give space to people of controversial views. A publisher is under no obligation to publish them. A university or other employer cannot be made to employ or promote them.

When the freedom of expression of one group is used to silence others, how is the state to mediate?

The law has generally been on the side of free speech. In the United Kingdom, the common law has traditionally been concerned with public order and incitement of breach of the peace rather than with censorship. To be criminal, words have to be inflammatory and intended or known to be likely to stir up hatred against vulnerable categories of people. Modern statutes criminalizing hate speech have broadly speaking adhered to that policy. For good measure, the main UK legislation provides a broad exemption for the protection of free speech which in principle permits discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse. The British police have arrested Christian preachers. They have recorded as “hate incidents” gender-critical tweets, tweets critical of the police, accidental damage done by schoolchildren to a copy of the Koran, even speeches by ministers proposing restrictions on immigration. But when these cases have come before the courts, they have usually been thrown out. In one case where the police took action against a gender-critical tweeter, the judge remarked that their conduct offended against a “cardinal democratic principle”. “In this country,” he added, we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” In Britain, we have statutory provisions forbidding discrimination on the basis of ethical, philosophical or political opinion among other things. In a landmark decision of the English Court of Appeal, Maya Forstater was held to have been unlawfully discriminated against, after she was fired from her work as a tax consultant because her fellow employees could not bear her gender-critical tweets. In the United States, the First Amendment has successfully been deployed against public sector entities, such as state universities who sack controversial professors or public libraries which remove controversial books. The anti-discrimination provisions of the New Zealand Human Rights Act 1993 are among the most broadly framed in the world.

But there are limits to what law can achieve. The government and the courts are impotent to protect people against the worst threats to free speech: the howling trollers of the internet, the addictive outrage of the street protesters, or the oppressive self-censorship of publishers, journalists and academics. These things can only be addressed by a profound cultural change which it is beyond the power of law to bring about. Changing this culture depends on you, on me, on every one of us. The only reason that activists only try to disrupt and suppress unwelcome opinions is that experience shows that it works. Venues do not book controversial speakers. Publishers do not publish controversial books. Prominent commentators do not step out of line or, if they do, they are bullied into issuing cringing apologies simply to turn the heat off.

None of us has to behave like this. J.K. Rowling has taken a prominent position on transgender issues and refused to back down in spite of attempts to boycott her books and associated films and shows. Because she refused to be intimidated, the campaign of harassment against her has failed and been seen to fail. Rowling is in a strong position because her writings are much loved across the world. Her publishers cannot afford to dump her as they have dumped other writers who broach controversial subjects. Kathleen Stock was hounded out of Sussex University, where she was a professor of philosophy, for her gender-critical views. She does not have JK Rowling’s advantages. But she too has refused to be intimidated, and as a result has become a famous figure. The attempt to silence her has greatly enhanced her profile and increased her influence. The Irish playwright Graham Linehan has refused to back down on the same issue in spite of the great personal cost. It has destroyed his career and ruined him financially. The harassment that he has faced has broken up his marriage.

These are prominent figures. But all of us can contribute to the solution in a humbler way by being willing to make it clear where we stand, not just on free speech itself, but on the subjects which have become taboo. I return to the ideas of John Stuart Mill. He recognised that his harm principle was imperfect. What was needed was the courage of individuals to defy the mob. In language which might have been directed at our present problems, he wrote that “precisely because the tyranny of opinion is such as to make eccentricity a reproach, it is desirable in order to break through that tyranny that people should be eccentric…” By eccentricity, Mill meant diversity of opinion. “ That so few now dare to be eccentric,” he wrote, “ marks the chief danger of the time.” If, for example, we believe that gender is not an optional status but a biological fact, we can say so instead of being shamed into silence. If we reject concepts dear to particular ethnic or religious groups we should say so and refuse to back down or apologise when they take offence. We have to discuss the unmentionable, challenge the unchallengeable. I am not recommending rudeness or abuse, but there is a larger place for reasoned objection than we realise.

The greatest challenge will be self-censorship by venues, publishers, film-makers, broadcasters and the media generally. They do not have to endorse the views of those whose views they publish. But they do have to welcome a diversity of a literary and artistic culture which includes the broadest possible range of opinion even on the most controversial issues. Otherwise, their business has no long-term future. The same goes for academic institutions. They are the guardians of free enquiry, and once it is limited or suppressed, their whole raison d’etre is gone. They will say, perhaps only to themselves or in the privacy of their editorial boards or faculty meetings, why should we expose ourselves? Why should we quarrel with our young and idealistic junior staff or students who do not wish to sully their hands with this or that book, film or lecture? Why should we court the unpleasantness involved in speaking up? The answer to that was given by Mill in his inaugural address at the University of St. Andrews after he had been elected as its Rector in 1867. “Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion,” he said; “bad men need nothing more to compass their ends, than that good men should look on and do nothing.”

Free speech is not a luxury. Ever since the seventeenth century, the civilisation of mankind has been based on the notion that there is such a thing as objective truth. Objective truth is independent of human will. It may be only partly knowable, and more or less difficult to identify. But it exists somewhere out there whether we like it or not. We have built our intellectual world on the footing that we get closest to the truth by objective study of the available material, by abandoning immovable preconceptions, by logical reasoning and by willingness to engage with dissenting opinion. These are not just social constructs. They are universal principles, which are necessary if we are to discuss controversial issues in the same language. Historically, they have made possible the phenomenal economic prosperity and intellectual achievement of the last four centuries.

The basic principles of rational discourse on which all this depended are now under challenge. Reason is rejected as arrogant. Feeling and emotion are upheld as suitable substitutes. Freedom is treated as domineering, enlightenment as offensive to the unenlightened. Current campaigns to suppress certain opinions and eliminate debate are an attempt to create a new conformity, a situation in which people will not dare to contradict for fear of provoking their outrage and abuse. These things are symptoms of the closing of the human mind and the narrowing of our intellectual world. Something in our civilisation has died.

No one can be entitled to intellectual safety. That is because statements of fact or opinion are necessarily provisional. They reflect the current state of knowledge and experience. But knowledge and experience are not closed or immutable categories. They are inherently liable to change. Once upon a time, the authorised consensus was that the sun moved round the earth and that blood did not circulate round the body. These propositions were refuted only because current orthodoxy was challenged by people once thought to be dangerous heretics and disturbers of the peace. Historically, most societies have abhorred democracy, rejected religious and political tolerance and regarded the whole idea of racial or gender equality as ridiculous. These ideas, which were once thought to reflect obvious moral truths, died out in most countries in the face of rational argument. Today, minorities, racial, religious or sexual are said to need protection from hurtful words, but historically they have been the main victim of censorship and other forms of intellectual and social intolerance. Once upon a time the religious and social consensus justified the imprisonment of homosexuals, the ostracism of divorced women and the marginalisation of racial minorities. That too died out in the face of rational discourse. Knowledge advances by testing conflicting arguments, not by suppressing them. Understanding increases by exposure to uncomfortable truths.

We all of us, in this place, live in democracies whose entire political order depends on the free exchange of ideas, on an acceptance of diversity of opinion and on a large measure of tolerance of intellectual difference. Our collective life depends on the resolution of issues between citizens by marshalling objectively verifiable facts. It depends on ordered debate about their implication under common rules which exclude coercion and falsehood. It depends on a culture in which the outcome of our processes of collective decision-making is accepted even by those who disagree with it. That is what is at stake in the current debate about free speech. The alternative is a narrow-minded, intolerant and authoritarian society in which the fear of giving offence or challenging existing shibboleths eliminates the most creative and original products of the human spirit. Ultimately, we have to accept the implications of human creativity. Some of what people say will be wrong. Some of it will be hurtful. Some of it may even be harmful. But there are greater values at stake. We cannot have truth without accommodating error and tolerating the challenge to received ideas. We cannot live together in society without allowing people to say things that other people regard as foolish, hurtful or untrue. It is the price that we pay for allowing human civilisation to advance and flourish. It is worth fighting for.


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