Democracies, free speech and the right to offend.

In light of Donald Trump's discriminatory comments towards women, Mexicans and Muslims, ought some voices to be silenced? 

Lesley Abdela
22 May 2016
Free speech, fear free.

Free speech, fear free. [Jeremy Brooks]/[Flickr].[Some rights reserved]

The journalist and feminist in me are fighting an on-going battle.

US Republican candidate Donald Trump recently proposed that women who have abortions should be subject to "some form of punishment" if abortions were made illegal. Another of his sexist comments was, "a woman must be hot in order to be a journalist". The journalist and feminist in me are fighting an on-going battle. As a journalist and a democrat I am a firm believer of free speech and believe that a citizen’s right to freedom of expression within public discourse is a precious right to be nurtured. The women’s rights campaigner inside me gets angry at such sexist and discriminatory public statements. Is it better for voters to hear Donald Trump’s (what many consider to be appalling) attitudes towards women, Mexicans and Muslims, or should we banish him and other politicians and speakers from the public forum, and thus not know what they are thinking?

If director of the Indian Wells tennis tournament, Raymond Moore, had had his insulting, sexist views about female tennis players covered up, he would still hold that influential post today. Moore said the women's game "rides on the coat-tails" of the men's, whilst female tennis players "should get down on their knees in thanks to male counterparts such as Roger Federer and Rafael Nadal", —a view labelled "sexist" by the United States Tennis Association (USTA). Moore quit as CEO of the tournament following the public outrage at such sexist comments towards female tennis players.

In law, hate speech refers to any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. But who should have the right to decide whose voices are heard and whose are banned? Where are the red-lines in the sand? When is the term 'hate speech' used as an instrument to silence critics of social policies, in a misuse of ‘political correctness’? Alarmingly, even at British Universities in our own back garden —former bastions of free speech and debate— the student unions and other institutions have recently enacted a no-platform policy, affecting speakers as diverse as writers Julie Bindel and Germaine Greer (with their differing views on women’s rights and feminism), and Human Rights champion Peter Tachell. These speakers, and many others, were forced to abandon planned appearances because some people, on one or other side of the debate, may have been offended by their opinions.

 Sue Ogrocki/AP/Press Associa

Republican presidential candidate Donald Trump gestures during a speech at a rally in 2016. Credit: Sue Ogrocki/AP/Press Association Images. All rights reserved.Originally the no-platform policy was used to prevent far-right groups from gaining traction on university campuses in an attempt to protect non-white, Jewish and left-wing students. In the early 2000s, the National Union of Students added selected Islamic groups, which it deemed to be extremist, to its list of officially proscribed organisations. In a distorted form of "mission creep", the no-ban tool has been used to target a wide range of speakers in the past decade. In his new book, Hate speech and Democratic Citizenship, Eric Heinze, Professor of Law and Humanities at Queen Mary University of London, says the more a country is a genuinely developed democracy, the less it needs to impose 'speech bans'. He argues that developed democracies have better ways of combating violence and discrimination against vulnerable groups than by censoring speakers. In this academic ‘monograph’, Heinze examines the status of free speech within western democracies. Heinze is not absolutist. He acknowledges that hate speech has led to violence in democracies such as Germany’s Weimar Republic, the immediate post-Cold War Yugoslavia, Rwanda, and in varying degrees elsewhere. None of these were what Heinze classifies as longstanding, stable and prosperous democracies (LSPDs ). Not all democracies are alike; in weaker democracies or non-democracies, speech bans are systematically misused against vulnerable groups. 

Heinze proposes: “it is time for us to recognise that hate speech bans are, at best, a necessary evil, but they can never claim a legitimate role within a full-fledged democracy.” Heinze says that full-fledged democracies have many ways of taking a moral stand, without having to go so far as to punish those with deviating views. A component of the LSPD model is that western democracies can comprehensively deploy state resources to combat discrimination in material ways, which have proved to be both more politically legitimate, and, more pragmatically effective than banning speech. Central to the LSPD model, it can be shown that western democratic states have taken moral and symbolic stands—not always perfectly or without contradiction— but certainly in more than peripheral, lip-service ways. Measures including non-discrimination laws, pluralist primary education (and bans on individually targeted stalking, harassment, or ‘fighting words’) convey the state’s moral and symbolic messages against intolerance or violence. 

Heinze feels that It is healthier for democracies to hear all the views that are held by politicians, rather than to shut them is healthier for democracies to hear all the views that are held by politicians, rather than to shut them up —even when those opinions may be unpalatable to many. When French MP Christian Vanneste said that he thought homosexuality was inferior to heterosexuality, he was prosecuted. Heinze argues: “but don’t we want to hear what our politicians think!”

Social and civic awareness and plurality of opinion within LSPDs, is sufficiently robust to allow for counter-speech and the scrutiny of speakers and groups. Formal and informal structures of LSPDs have developed many buffers to intolerance which are absent in weaker democracies. LSPDs maintain sufficient legal, institutional, educational and material resources to admit all viewpoints into public discourse, whilst remaining adequately equipped to protect vulnerable groups from violence and discrimination.

As Heinze points out, the state can legitimately punish hate-based acts of murder, battery, and other criminal acts, without taking the additional step of punishing speech uttered in public discourse. He says: “crimes of ‘incitement’ do the opposite. They furnish the state with a dragnet device for sweeping up undesirables without having to show even a highly remote probability of harm actually resulting from the public expression of ideas.”

New York Law school Professor Nadine Strossen was the first female president of the American Civil Liberties Union, and is a founding member of Feminists for Free Expression. She says that regulating speech is “at best a distraction from, and sometimes an obstacle to, efforts to grapple with the real, concrete problems.” It focuses policy-makers on “tokenism, rather than something real to promote actual equality.”

A topical example of the free speech versus speech-ban debate took place on 28 March 2016 at the National Union of Teachers conference in the UK. In the context of combating extreme radicalism, the conference voted to support a motion calling upon the government to withdraw the Prevent strategy for schools and to develop an alternative approach to safeguarding children from extreme radicalism. Teachers said this could "smother" the discussion of legitimate political opinions. NUT general secretary, Christine Blower, said that schools have a "moral obligation" to protect children from extremism and the best contribution from schools would be to encourage discussion. 

LSPDs are a recent development, having only existed since the 1960s. (In the US, for example, racial segregation was present well into the 1960s). The Economist Intelligence Unit measures the state of democracy in 167 countries. The ranking index categorises countries as one of four regime types: full democracies, flawed democracies, hybrid regimes and authoritarian regimes. The Economist Democracy Index 2013 report rated just twenty states as full democracies. All states were judged on the following criteria: electoral process; functioning of government; political participation; political culture and civil liberties, and respect for human rights. 

For the most part, I believe it better to counter and debate ideas on open public platforms, where both the right to speak and the right to criticise are upheld. 

Heinze acknowledges that no rights are absolute, and quotes Lord Bhikhu Parekh: “although free speech is an important value, it is not the only one. Human dignity, equality, freedom to live without harassment and intimidation, social harmony, mutual respect, and protection of one’s good name and honour are also central to the good life and deserve to be safeguarded. Because these values conflict, either inherently or in particular contexts, they need to be balanced.” 

On a personal note, for the most part, I believe it better to counter and debate ideas on open public platforms, where both the right to speak and the right to criticise and upheld. At the time of the Brahimi report on reforming the UN, I wrote an article suggesting it was time to replace UN peace operations with a new entity, better suited for the modern world. I wrote: "peacekeeping missions are proving to be as damaging for the UN as they are for the countries in which the missions operate. If stained-glass windows portraying peace missions were hacked into the walls of the cathedral-proportioned entrance lobby at the UN Plaza, New York, they would illuminate the floors with spectral outlines of the Ruwenzori mountains and the Great Lakes, the hills of Sierra Leone, Bosnia, Kosovo and the ruins of Srebrenica, not as a paean of honour but to the sound of a tolling bell. Panels would depict scenes of inconceivable cruelty, stories of UN missions past, part theatre of the absurd, part Dantean hell of severed limbs, ethnic cleansing, rape as an instrument of war." 

The day my article was published, I was sitting next to a very senior, British Foreign Office Government Civil Servant, at the British Council board meeting. “Saw your article in this morning’s Guardian newspaper. I don’t agree with a word of it.” He paused and added, “but, of course, I defend your right to say it.”

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