March 28, 2006

Freedom of speech.

What is the purpose of the western concept of “freedom of speech”? Some people seem to think that it means that anything can be said, at least in principle. But certainly in practice, there are limits to what can be said, depending on the circumstances. One can’t falsely advertise, can’t libel, can’t yell “fire” in a crowded theatre, etcetera. And of course, many other things just aren't done. Despite their ardent defense of free speech, no major US paper reprinted the Danish cartoons.

There are also clearly limits to what the legal implications are of this freedom of speech. Generally speaking, it only protects one from government censure. There is no freedom from other consequences, no matter how irrational, of your decision to speak your mind. For example, one has the freedom to tell one's spouse that he or she needs to get in shape, but one cannot expect protection from the argument that is likely to follow. One has the freedom to say something stupid in public, but that does not mean one can expect to escape the ridicule following from it.

Now, I believe that freedom of political speech is a pre-requisite to democracy – one should be able to discuss all realistically feasible solutions to societal problems, and be able to bring attention to almost every perceived problem in society – as well as in public figures. The latter is because the character of the person working for the public good may affect their judgement. Hence a discussion of background, education, family friends and investments are fair game. In particular, criticism of the ruling majority, and the status quo has to be especially protected, as it is essential to the workings of a real democracy.

An important part of modern Western culture is the broad public discourse on all kinds of societal subjects, which aren't always strictly political. To facilitate a societal debate on various matters, participants need to be protected to a certain degree from the consequences of speaking their mind. In particular, as long as they don’t advocate illegal actions and speak the truth (a difficult assessment), they need to be certain that the government shall not take action against them. As a matter of course, one can expect that the state shall protect speakers from illegal actions by others, but not from legal actions.

But there is no reason why the state, or the society as a whole, should protect people from the consequences of speaking their mind. If you insult a race, one shouldn’t be surprised when those insulted decide to boycott your store, or even picket in front of it. If you insult a religion, one shouldn't be surprised if its adherents take action against you - as long as those actions remain legal. One should expect protection from illegal actions - always - and from actions by the government. When people deliberately provoke others, they must understand that there can be consequences, in terms of broken friendships, uncomfortable situations, hostile reactions and outright criticism. And in particular instances, legal action can and should be forthcoming against the offender.

To complicate matters, protection should be granted to the weak, more than the strong. In a Christian nation, criticism of Christianity should be protected more than criticism of minority religions. This isn’t unfair, it simply acknowledges the balance of power. It is possible for a dominating group to legally suppress dissenting opinion. This must be guarded against.

Most important is that hate speech and purely offensive public speech do not need to be protected. On the contrary, society should actively condemn those who deliberately offend or spread hateful ideas, because they do not constructively participate in the public discourse. While no amount of offensive speech can excuse an illegal response, there is a longstanding legal concept of “mitigating circumstances”, which allows for human nature in the reaction to particularly vile or offensive speech, when determining the punishment for illegal actions. This indicates an acceptance of the loss of self-control that can result from exposure to particularly offensive speech. Society doesn't win from allowing this to happen. Ultimately, a society where hate speech is tolerated runs the risks of becoming polarized, and, paradoxically, less free. When the public discourse is angry, heated and offensive, people in the middle become blocked out from the discourse. The unwillingness to become hateful and aggressive dooms rational, composed speakers to the fringe. A society that doesn't fight hateful speech because it wants to keep all speech free, will end up with a polarized, hateful discussion that will exclude many opinions.

It is of course crucial to realise that everyone can be offended, and that some people are offended by minute things. Modern societies have so much communication of ideas, that it is almost impossible not to be offended by a good lot of it. As a matter of fact, if you're not offended by what you read, see and hear, you probably need to broaden your horizons a bit. It is therefor essential that people need to learn to deal graciously with offensive behaviour, and there is no merit in trying to avoid offense entirely. But it is in everyone’s interest to minimize the offense that is dealt to others. This is why legal limits on speech and societal conventions that achieve the same, are acceptable. Moving the boundaries of what is allowed is a slow process, that does not progress in a straight line. But this process should be reflected to some degree in the legal domain - with lawmakers and judges attempting to strike the balance. Again and again.

The simple part of freedom of speech, for the government, is not to act against political speech. The more difficult part is to act against offensive, polarising speech. Both are necessary to keep the public discourse open and free.