What We Talk About When We Talk About Free Speech
A deep dive on the 'crisis' coming for our voices.
There’s been a lot of talk in the media recently around speech in Aotearoa. In particular, about freedom of speech and its status regarding new hate speech legislation.
It brings to a moment that may have been decades ago in media time, but was just a few months, when ex-national Party leader Simon Bridges said, on national television, that although forcing someone to undergo conversion therapy is wrong, criminalisation could threaten free speech.
“I personally do have a wider concern,” Bridges said. “That is freedom of speech. That is, in a liberal society, in a tolerant society, we have been very tolerant of different views.”
The public response, as one would guess was swift and emotional, as people on both sides condemned or commended his position. The topic of free speech is provocative enough; add in conversion therapy and, understandably, people got passionate.
However, what seemed more interesting (at least to me) wasn’t whether Bridges’ concern for free speech was ‘good’ or ‘bad’, ‘right’ or ‘wrong’… but whether it was actually, logically, sound.
The Myth of the ‘Free Speech Crisis’
According to Nesrine Malik, a British journalist and author of “We Need New Stories: Challenging the Toxic Myths Behind Our Age of Discontent”, the free speech crisis myth is built on two flawed premises:
All speech is equal.
Freedom to speak means freedom from objection or consequence.
So, let’s unpack these one-by-one.
Premise 1 — All Speech is Equal
When laws around the world talk about ‘freedom of speech’ they generally mean the same thing: the right to express opinions (even unpopular or unpleasant ones) without fearing legal censorship.
However (A very big 'however' in these discussions), freedom of speech isn’t absolute; the definition has a caveat.
When speech causes harm to another individual or group, it becomes liable to limitation under philosopher John Stuart Mill’s ‘harm principle’.
A concept whereby Mill claims “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Meaning, when ‘Free Speech Crisis’ is cried, it pays to check whether the speech in question is harmful and thus not deserving of legal protection.
A rule Nesrine Malik describes as particularly difficult to enforce because, “instinctively, it feels wrong to do so”.
We can feel this in our gut; it doesn’t feel right for someone to have the right to censor or shut down the mere expression of an opinion.
Yet, it’s important to remember, when it comes to free speech, preventing harm must always be the priority.
A quick note on slippery slopes
Listen to anyone concerned about free speech for long enough and you’re sure to hear the ‘slippery slope' argument, which goes something like this:
‘Restricting the expression of this opinion will inevitably snowball until no one can express anything, ever.’
Or, the words of University of Amsterdam academic Magdalena Jozwiak, “today ‘this’ speech restriction, tomorrow the Inquisition”.
The line of reasoning is popular because it makes a lot of sense. It’s a neat, logical, ‘X, therefore, Y’ sort of argument.
Fortunately, it unravels rather quickly when you acknowledge that not all speech is equal and a violent and hateful diatribe is different to a respectful conversation.
The ‘X, therefore, Y’ then becomes, ‘this oppressive speech is not condoned, therefore, soon that oppressive speech will not be condoned.
The only slope you slip down is one of harmful speech. Respectful, empathetic (yet still possibly controversial!) opinions remaining unscathed.
Premise 2: Freedom to speak means freedom from objection or consequences.
The second assumption touted as truth by those ‘defending’ the ‘crisis’ of free speech is that the freedom to speak is the same as freedom from objection.
A convenient opinion if you want to evade criticism from (or even discussion with) groups affected by your opinions.
Even if we exercise our right to share opposing views with care and respect, we can certainly all agree that we’ll often disagree.
But as a democracy, the point of free speech isn’t about protecting our right to shout one-way into a void (as much as social media would have us believe), but facilitate communication between parties.
In essence, we have the right to speech…just as much as someone with an opposing view.
Speech is So Free
This is all before addressing the fact that, today, with the expansion of social media and other digital platforms, it’s easier than ever to share our opinions with the world.
The issue? Minorities previously excluded from conventional media can now be heard… but so can those wishing to promote violent or inaccurate ideologies that fall very much outside the realm of protection-worthy speech.
Glance at the growing stack of headlines about speech being policed and people silenced and it’s easy to feel that, as Bridges suggests, politically correctness has gone too far and cancel culture is coming for our voices.
As usual, the truth is far less sensational and highly logical: since more people can speak more freely, there is naturally more objectionable/harmful speech that must be policed.
The Dangers of Speech
Discussions around speech (and our right to it) are important because, while sticks and stones may break bones, words can also translate into physical harm.
Primarily because speech creates culture. It informs the social contract we sign up for and dictates what is and isn’t okay to say or do, regardless of the law.
One could quote the 2020 study in The British Journal of Criminology, which used Computational Criminology to find a relationship between realistic threats and associated hate crimes…
…Or a 2020 paper from the International Interactions Journal which linked the frequency of domestic terrorism to whether politicians used hate speech often or extremely often….
But regardless, we are not without empirical proof that abstract opinion can translate into real risk.
Why We Agree on Limitations
In New Zealand, there is a lot one can say without legal or social persecution. But it’s for the above reason that, as with most things in a democratic and liberal society, we need limits.
Take clothing. As a country, we demand a certain level of clothing be worn in public to ensure the majority feel safe and comfortable. Want to swan around naked in the privacy of your own home? Go right ahead, my friend. Want to parade your bare body before crowds of morning commuters? We’ll have to object.
Thankfully, most people start their day by donning pants, shirts, dresses or skirts, although not because the law tells us, but a ‘social contract’ does.
When we go against the grain, we risk rejection from peers, something our brains will always attempt to avoid. So, we wake up and we conform.
In the same way, it’s rarely laws dictating what we say but the rules of social acceptability created by communities we inhabit.
‘Created’ because social contracts aren’t inherent or objective; they’re manufactured and enforced. Often by those with social capital and power sitting at the top of a social hierarchy.
The issue is, what those at the top (due to gender, wealth, race or otherwise) deign ‘socially acceptable’ can be downright harmful to individuals or groups below.
If you felt generous you’d blame it on a naive lack of awareness. If you felt less so, you may accuse people of encouraging communication that maintains hegemonic power systems.
No matter which stance you take, this is why not all speech deserves to be protected by law; the words we speak have social, cultural power. They create and promote norms and expectations that can be difficult to resist, particularly for those without privilege to lean on.
It’s Often Not About Speech
All of that to say, that often, those crying ‘free speech crisis’ aren’t concerned about protecting the right to express opinions without censorship at all.
Often, it’s used to distract from their real desire; to speak with impunity and without objection against individuals or people groups, under the guise of liberty.
When, in 2018, a group of extreme-right figures were rejected entry to Britain after their presence was judged as “not conducive to the public good”, the conversation was diverted from their neo-nazi views, hate speech and violence, and towards the supposedly unethical ways their freedom was revoked.
The angle that one has been (or will be) ‘silenced’ is a compelling way to give bigoted ideas a sort of underdog legitimacy, presenting a superior group as an oppressed victim who deserves their time with the mic.
When the next person calls ‘free speech crisis’, maybe we need to look a little harder. See if their goal really is protecting constructive communication, or simply evading criticism of norms serving those at the top.
So… that’s what I’ve been thinking.
Attention is a pretty valuable thing, thanks for lending me yours. As always, if you liked the above (or just want to make my day), be a legend and share this with a friend.
Sarah