This essay, on the government’s plans for free speech, was my Observer column this week. (The column included also a short piece on Michel Barnier’s immigration comments.) It was published on 16 May 2021, under the headline “Challenge bigotry by all means, but outlaw it? I’d rather not”.
“Blacks are genetically less intelligent.” “Muslims do not belong in this country.” “It is right to discriminate against gays.”
Three bigoted statements. According to a new draft law, the Online Safety Bill, social media companies could be required to censor them. According to another proposed law, the Higher Education (Freedom of Speech) Bill, any university or student union that did censor them could face sanctions.
The bills deal with different arenas – social media and higher education. But the fact that what is protected by one law is made illegal by another, and that what the Online Safety Bill calls “a significant adverse psychological impact on an adult” is reason for censorship on social media but not on campus, reveals a degree of incoherence impressive even by this government’s standards.
That incoherence ensnared the higher education minister, Michelle Donelan, in a radio interview. The new law, she claimed, would require universities to give platforms to Holocaust deniers. After outrage, the government backed down, Downing Street insisting that “Holocaust denial is not something that the government would ever accept”. But Holocaust denial is legal in Britain. If, as the government claims, it wants to ensure that universities don’t ban speech that is odious but legal, it is difficult to see how Donelan was wrong.
Meanwhile, the Online Safety Bill threatens huge fines for the failure to ban legal speech deemed “harmful”, even if “indirectly”. What constitutes “harm” or “indirect” harm? No one knows. But, as media law expert Edina Harbinja observes, “what’s legal to say out loud could soon become illegal to type in the UK”. The fact is, the government is interested not in free speech but in taking whatever stance seems politically expedient.
It has long been recognised that the biggest chill to free speech at universities is the government’s “Prevent” policy, designed to curb terrorism. Prevent guidance on higher education includes a warning that speakers espousing “non-violent extremism” may need to be censored. Not only does this contradict the government’s free-speech agenda (why should “non-violent extremism” be banned rather than debated?), it also discourages discussion and promotes censorship. Any government serious about free speech would begin by looking at its own Prevent policy.
The debate has also exposed wider divisions on free speech. Three broad positions are developing. First, there are those who demand restrictions on unpalatable speech and want the state to set the boundaries. This is probably the consensual view on the left, a major shift from what it would have been half a century ago. Second, there are some who support free speech and want the state to impose it. This relatively new development is often pushed by conservatives who recognise the political utility of being seen as champions of free speech. And, third, there are those, like me, who support free speech but oppose the state imposition of “freedom” as both contradictory and politically troubling.
One of the classic arguments for free speech is that giving the state power to censor speech that we abhor – bigotry, say – gives it also power to censor speech we might support. Historically, we have witnessed this many times.
This is also, however, an argument against giving the state power to impose freedom of expression. One of the two examples that the education secretary, Gavin Williamson, gives as demonstrating the need for new legislation is a letter signed by academics “expressing public opposition” to Oxford professor Nigel Biggar’s research project on the British empire. Is not criticism of Biggar’s work also an expression of free speech? Or is free speech confined to ideas and research of which the government approves? One can see here how in the future the government might seek to curtail such criticism in the name of protecting free speech.
It’s important to defend freedom of expression in universities and online. In my view, what is legal offline should not be illegal online and issues such as Holocaust denial and “non-violent extremism” are moral and political, not legal, matters. We should challenge such bigotry wherever we see it, but not necessarily ban it.
The desire to make social media less obnoxious and universities more open is welcome. The roots of these problems are, however, primarily social and political, not legal or technological – decay of the public sphere, a greater intolerance of views with which we disagree, the broader breakdown of civility, the growth of a more censorious social climate. Incoherent legislation that creates a free-speech bureaucracy opens the way to litigation over “adverse effects” suffered by some speakers and threatens legal sanctions over vague notions of “harm” will neither improve the online experience nor bolster free speech.