Why hate speech?
Words can never hurt you, but banning them always will, says James Heartfield
Sticks and stones can break your bones, but words will never hurt you. Or will they? Freedom of speech rests on the idea that in themselves, words can never be a bad thing. As long as we are all free to judge for ourselves the importance of what is being said, then words should never be banned.
Speech is privileged in modern democracies. There is no other kind of action which is almost unregulated. 'Almost' because conservatives have always sought to undermine this important right, with special laws against obscenity, sedition and defamation. But the censors have had to contend with the opposition of civil libertarians, who insist that there should be no restrictions on freedom of speech.
The comparatively liberal attitude towards free speech depends on an important intuition, contained in the children's doggerel 'words will never hurt you'. As long as there is freedom of discussion and debate, and the opportunity exists to challenge and rebut false or mistaken ideas, then only good can come of words.
More recently, though, the principle that words can never hurt you has come under attack. Some say words can hurt - 'hate speech' like nigger, cunt, queer, spastic - and that these words should be restricted. This time the fiercest opponents of free speech are not old-fashioned conservatives. They are feminist authors and academics, radical lawyers and journalists.
The central claim of today's critics of free speech is that words do hurt groups such as women, black people, homosexuals and the disabled. Name-calling is not something that you can shrug off, it is argued, when you are already disadvantaged in society. Words that incite people to racial violence, words that put women 'in their place', words that project harmful stereotypes of lesbians and gays, or of the disabled - these words are not only words, they are oppressive and vicious. Free speech, they say, should never become a license for racism, sexism or any other kind of oppression.
According to feminist lawyer Catharine Mackinnon words, and images, hurt. She wants to revoke the first amendment to the US Constitution which guarantees freedom of expression. Mackinnon is concerned with pornography. She says that pornography is rape, literally. She means that pornographic photographs are coerced sexual acts, but also that pornography leads people to commit rape, as surely as the command 'kill' leads an attack dog to kill. As Mackinnon argues it, there is no separation between the 'command' - in this case pornographic material that portrays women as objects of men's domination - and the act, the act of domination itself.
The first amendment to the American Constitution is one of the clearest expressions of freedom of speech. It is unequivocal: 'Congress shall make no law...abridging freedom of speech.' As a consequence, the first amendment has been an important symbolic barrier to restrictions upon free speech. It has also become the main target of those in the USA who believe that speech should be restricted. Other countries have had important debates about free speech, but none has seen the battle-lines drawn so clearly.
American cultural critic Stanley Fish has been in the forefront of the argument to restrict free speech. His book There's No Such Thing as Free Speech is subtitled 'and it's a good thing too'. The book is required reading for Britain's New Labour MPs, who cite it more often than they read it, to support their case for restricting free speech.
Stanley Fish argues that the first amendment is defunct. 'Insofar as the point of the first amendment is to identify speech separable from conduct and from the consequences that come in conduct's wake, there is no such speech and therefore nothing for the first amendment to protect.' Fish is saying that all speech, unless it is just unimportant (like 'Hyde Park Corner or a call-in talk show'), has consequences. And if it has consequences then it should be regulated, like any other activity. The argument that 'words will never hurt you' is wrong, Fish thinks, because it does not take words seriously.
Fish's argument sounds persuasive, but actually it is absurd. The argument that 'words can never hurt you' does not imply that words are without consequence, or that they are unimportant. After all, if words are not serious then why would we even bother defending them?
The point is that it is not words that hurt you, or help you. It is the people who act on those words. And those people are free to give them the weight that they deserve. Words are serious, not because they have any direct effect in their own right, but because words, and the ideas contained in them, are all we have to weigh up our own decisions, their likely effects, and our own responsibilities.
One American critic complained about Catharine Mackinnon's argument that porn leads inexorably to rape, that her mind is 'one long slippery slope'. He meant that Mackinnon slipped effortlessly from words to their consequences without seeing any distinction between them. It is worth asking, what is the distinction between words and their effects? What are the steps that Mackinnon has chiselled away at to create a slippery slope between pornography and rape?
We are. We people, with minds of our own, with the ability to judge between a good idea and a bad one, we are the distinction between words and their consequences. Words have consequences only if we choose to give them consequences. It is not the words themselves that cause things to happen, but our estimation of the value, and truth, of those words.
Mackinnon uses the example of the attack dog given the command 'kill'. It is true that any court of law would convict a man who set his dog on somebody else, because a dog can be a weapon, just like a knife or a gun. But if the same man said 'kill the niggers' and somebody else then did so, he could not be convicted of murder. Why? Because men are not attack dogs. Tell your dog to kill, and it has no choice in the matter. Tell somebody else they should kill and the case is quite different. Between your words and the act stands another, free human being, with a mind of his own, an ability to judge between right and wrong, and a responsibility to face up to his own actions.
Neither Mackinnon nor Fish understand the meaning of freedom of speech. They do not understand that making speech free says nothing in itself about the worth, or lack of it, of any words, sentences or ideas. In making speech free it is not words that are elevated to a high moral status. It is people. Freedom of speech is often misunderstood to be a gift to every crackpot orator or demagogue with an axe to grind. But the truth is the opposite. The people who are really empowered by free speech are not the speakers, but the audience. Free speech puts a premium on the decision-making ability of each of us to weigh up all the arguments and draw our own conclusions. Far from assisting prejudice, free speech exposes prejudice to its most demanding test: contradiction, debate and rebuttal, or even more exacting, ridicule and indifference.
Neither Fish nor Mackinnon understand free speech because the very idea that you should trust other people is alien to them. To Mackinnon, men are 'attack dogs'. She discounts the idea that people can judge for themselves by challenging 'try arguing with an orgasm', and saying 'a stiff prick turns the mind to shit'. It is ironic that this feminist should so faithfully reproduce the excuse of every third rate sex-offender - 'I just couldn't help myself'. Her desire to restrict free expression arises from her innate distrust of her fellow men.
Stanley Fish is equally disdainful of the idea that people are the best judge of right and wrong. An unsung hero of free speech, professor Cushing Strout is traduced in the afterword to Fish's essay for wanting to 'shift the responsibility for approving or disapproving to the free choice of free individuals'. Fish cites this argument as if it were beneath his dignity to answer it, saying only that 'minds are not free' because 'the outcome of deliberation cannot help being influenced by whatever notions are current in the culture'. It is a mark of how far things have gone that Fish thinks free will is just a joke, and that it is self evident that we are just automatons acting at the behest of our culture. Quite why Stanley Fish thinks that the censors would not be influenced by the cultural norms that they defend remains a mystery.
At bottom these critics of free speech are making a judgement about their fellow men and women. If you hold the idea that men are just slaves of their genitalia, or that people are slaves to their culture then clearly it would be absurd to permit freedom of expression. But conversely, if you believe that people are capable of rationality and responsibility then freedom of expression makes perfect sense.
In some respects, the modern case for censorship echoes traditional conservative arguments about sedition and incitement. Conservatives were always preoccupied with a fear of the mob. Ancient restrictions on freedom of speech reflect the concern that radicals could inflame the mob with seditious propaganda. That prejudice combined a disdain for the real grievances and concerns of the mass of people, with an instinct to 'round-up the ring leaders'.
The more contemporary versions of the case against free speech share the old elites' disdain for the masses. Past laws that today's critics of free speech appeal to are generally versions of this reactionary fear of the 'irrational mob'. Such, for example, is the famous US court ruling that speech which incites violence is not really speech at all, but 'fighting words', and so unprotected by the first amendment (Chaplinsky v New Hampshire, 1942). The idea is that people are easily provoked to breach the peace by inflammatory insults. Even Britain's law against incitement to racial violence is less people-friendly than it at first appears. It was passed in the belief that, unlike the supposedly enlightened authorities, 'ordinary people' were ignorant enough to be susceptible to the appeal of agitators of the far-right.
There is a continuity between today's opponents of free speech and the conservative tradition on censorship. There is also an important difference, however. Nobody argues today that freedom of speech should be restricted in order to defend the privileged orders. Instead, the argument is that free speech must be curbed in order to defend the weak and the defenceless.
The new arguments for banning 'hate speech' and 'offensive' words indicate a real shift in the way that people think that racial, sexual and other insults can best be challenged. Today it is generally held that other people are unreliable allies in the struggle against abusive behaviour. Instead, state regulation is looked to as the best defence against oppression.
It is interesting to compare our modern sensibilities with those of the American colonists who drafted the first amendment to the US Constitution enshrining free speech. Those early pioneers looked on the state with considerable distrust, and on each other as potential allies in the struggle for justice. Their common experience of challenging the oppressive rule of the British, nurtured in them a healthy distrust of the state, and a correspondingly positive attitude to one another. That attitude is expressed in the first amendment through the premium it places on the people and the restraint it places upon the state.
Today things are moving in the opposite direction. Our attitudes to each other are infected with a powerful sense of distrust. The danger we perceive comes not from an oppressive state, but from the implicit violence and disrespect we expect from our fellow men and women. Respect for the state itself is not high. But the broad distrust we have for government is outweighed by our fears of each other. It is a modern irony that the state is unpopular in general, but not so distrusted that we are prevented from calling for ever greater state regulation of everyday life.
New moves to introduce censorship laws on harassment, Holocaust revisionism, incitement and privacy are only part of the story. Alongside the legal framework there is now a much greater quasi-legal, or bureaucratic regulation of speech. College campus codes regulate what students can say to each other, workplace codes of behaviour do the same. Not surprisingly the media is the most heavily regulated area. A proliferation of parastatal bodies with ominous initials like the ITC, BSC, BBFC, ASA and PCC exist to regulate the newspapers and television programmes.
All of these institutions are able to present themselves as 'complaint-driven'. Rather than just descending from on high like the Lord Chancellor censoring the theatre, they respond to complaints from members of the public. In practice, of course, such complaints are carefully solicited and orchestrated, according to the preoccupations of the relevant authority. Leeds University's Code of Conduct forbids harassment, adding that 'harassment shall be defined by the victim'. The official rulings against television programmes, newspaper articles and advertisements are always made in the name of some offended viewer. In fact the numbers of these complaints are pitifully low compared with the viewing and circulation figures of the articles and programmes concerned. No matter. It is the voice of complaint that is empowered by these bodies. Complaint gives these institutions the authority to act.
The effect on public discussion has rightly been described as 'chilling'. When everybody is looking over their shoulder to see who they might be offending, caution imbues every public statement. In this climate direct bans are largely unnecessary. Instead everybody gets their own little censor installed inside their heads as self-censorship becomes the order of the day. There are so many things that just cannot be said that direct censorship only comes into play as a weapon of last resort.
This insidious kind of censorship is not only an influence on what is said. It also influences the perception of harm in the minds of those who see themselves as the offended party. The statement that 'I find that offensive' is now the trump card in any discussion. The mere perception of offence becomes the deciding factor. This is a process that encourages us to define ourselves as easily offended and to revel in our sensitivity to insult.
A greater sensitivity to insult casts us all in the role of complainers. Instead of seeing debate as an opportunity to state your case, nowadays the routine response to every controversy is the demand for a ban on offensive ideas. And, rather than attacking the roots of social problems, all eyes are on the attendant language. Images and words are invested with a magical power over us.
The story is told of the primitive people who had a mortal fear of their photograph being taken. In this, possibly apocryphal, tale these aboriginals thought that having your image taken was the same thing as having your soul taken from you. To those with a less grounded sense of personality, control of the image is confused with control over the man, and his circumstances. More remarkable is that we today should be returning to this primitive state, where control over somebody's image, over the label attached to them, is seen as equivalent to control over them in fact.
The opponents of free speech argue that this freedom only helps the rich and powerful. It is a mockery, they say, to talk about freedom of speech when the means of communication, the press and television are in the hands of a few powerful men. How can you say that a single mother has the same right to free speech as Rupert Murdoch? There is an important point here. Equal rights before the law do not mean equal access to the media. To be free to do something is quite different from having the means to do it.
The difference between Rupert Murdoch and a single mother is not enshrined in the law. There is no act or regulation that says Murdoch is allowed to say what he likes, but she is not. There is no need for such a law. The difference is entirely situated in the social inequality wherein the newspaper magnate's ownership of the means of communication gives him a bigger voice.
The fallacy is that inequalities of social power can be redressed by restricting freedom of speech. Censorship will never balance the power of a Murdoch or of CNN's Ted Turner, no matter how well-intentioned it is. It is an underestimation of the power of the wealthy to think that rules and regulations will restrict their room to manoeuvre. On the contrary, any such restrictions will only be turned to their advantage, as an army of lawyers gets to work to reinterpret the rules.>
According to the pressure group Liberty, the law against harassment, brought in on the pretext of protecting women from persecution by stalkers, has been used principally against protesters. The Advertising Standards Authority has used regulations, designed to stop wealthy political parties from buying airtime, to prevent the charity Christian Aid from calling for the cancellation of Third World debt in the TV ad break.
In the libel case brought by ITN against this magazine, the multimillion pound news corporation shamelessly plays the role of the hurt victim, demanding redress. The fact that ITN has the resources to give its answer to LM's criticisms before an audience of millions is conveniently forgotten. In fact they would prefer to try to silence us out of sight of the public, under the censorship-for-hire that is Britain's libel laws.
Legal and institutional restrictions on freedom of speech are not a challenge to inequality, but an additional resource to the rich and powerful. Men like the late Sir James Goldsmith have no qualms about boasting that their wealth gives them the power of the courts to silence their opponents.
Elite minorities revel in bureaucratic regulation and restriction. They are constantly trying to disguise the power that they have over others. A new law of privacy, for instance, could only serve to keep the rest of us from knowing what they are up to. By contrast, the harsh light of free speech can expose all the hidden levers of power and privilege, the better that we can take action against them.
Freedom of speech is actually the best weapon we have against the power of the minority that lord it over the rest of society. It is not easy to get through the press and television monopolies, but the audience of ordinary people is a better potential resource than all the complaints commissions and good conduct tribunals put together.
Unlike the great and the good who sit on the official 'watchdog' bodies and enforce the codes of conduct, the people who make up the Great British Public have no vested interests or hidden motives. Nor should anybody who is confident of the justice of their cause fear the judgement of their equals. If your argument is right and you are prepared to fight for it, your chances of achieving justice must be better in a free and open debate with Joe Public than in a private hearing before Lady Muck.*
BROUGHT TO BOOK
by Helene Guldberg
Paladin Press, based in Colorado USA, is currently being sued for aiding and abetting murder because of the contents of one of its books, Hitman: A Technical Manual for Independent Contractors. The book, published in 1983, describes in graphic detail how to commit contract murders.
James Perry bought Hitman in 1992. That same year Perry was hired by Lawrence Horn to kill his wife and quadriplegic son. Perry committed the contract killings in 1993, but was quickly caught, convicted, and is now on death row in Maryland. The twist in the tail of this story is that it is not only Perry and Horn who are to be held responsible for the murders, but the publishers of Hitman as well.
Lawyers representing the families of the victims claim that Perry followed 22 of the recommendations contained in Hitman to the letter - including shooting two of his victims through the eyes (who would have thought a murder manual was necessary in order to appreciate that shooting somebody through the eyes was a foolproof way of killing them!). Paladin Press and its president, Peder Lund, are being sued for conspiring to commit murder, aiding and abetting murder, and negligence in making this type of information available to the public. The publishers may be forced to pay substantial damages.
As Peder Lund told me, 'This is an archetypal example of the nanny government approach. Instead of having people assume responsibility for their own actions, society and government instead look for scapegoats'.
Although Paladin Press recognises that some people may misuse some types of information it argues that 'suppressing books isn't the answer. We happen to subscribe to the quaint notion that you punish the people who break the laws and let the rest of us law-abiding citizens decide for ourselves what we read, see, believe, or say'.
A verdict against Paladin Press would have a chilling effect on press freedom. This has been recognised by some of America's most eminent newspapers and broadcasters; the New York Times, the Washington Post and the ABC network have filed amicus briefs supporting Peder Lund.
Three appeal court judges have, however, not been persuaded. They found it 'breathtaking' that the national media should defend Paladin, arguing that material that directly aids and abets criminal activity cannot enjoy the protection of the first amendment. In a unanimous ruling the appeal court ruled that Hit Man was in some way responsible, thereby reversing a lower court decision. Peder Lund has vowed to fight the case all the way to the US Supreme Court.
If Paladin Press loses it would set a dangerous precedent. It is not hard to imagine the effect the threat of similar legal action might have on other publishers, writers and journalists. There is no clear-cut boundary between a murder manual and a descriptive account in a factual or fictional book. Could the publishers of mystery novels, real-life crime stories, or indeed any printed word that could be misused by another person to carry out a criminal act, be sued for damages? In these litigious times, a victory for the plaintiff would have a suffocating effect on press freedom, hitting the entire publishing industry and film and television too.
For more information: www.paladin-press.com
Reproduced from LM issue 107, February 1998