Freedom of speech: a libertarian perspective

In recent times, two related attitudes to “free speech” have become increasingly common. One is what we might call an absolutist free speech position, where any claim to freedom of speech, however vague or abstract, is treated as being of the utmost importance, with any possible objection being automatically discredited in advance. In response, many on the left have come to adopt an increasingly cynical and mocking attitude to the whole concept – where some liberals seem to see any vague invocations of free speech as inherently worthwhile, some leftists seem to view any appeal to “muh freeze peach” as being automatically suspect and worthy of ridicule. I’m not convinced that either position is particularly helpful for people who are concerned with freedom.

In practice, one of the big problems with “free speech” rhetoric is that, while “free speech” tends to be invoked as an abstract good, any given controversy over any actually existing speech act will usually be not just about the act of speech itself, but also about the resources used to amplify that speech. This means that “free speech” as a principle is not much use as a guide to settling any particular dispute, as to use it in the way its advocates seem to suggest would be just to assert that anyone should be able to use any space or resource they want, however and whenever they want. It’s hard to say how that principle might apply in a society based around free access to resources, but it’s certainly a wildly inadequate one for navigating conflicts in a capitalist society based around private property and scarcity.

As this is all pitched at a fairly abstract level, it’s worth taking a look at a few practical examples, all of which could, if you wish, be described as violating someone’s freedom of speech: in 1984, an issue of the Sun had to appear with a hastily-altered front page after workers refused to print a proposed headline attacking Arthur Scargill and striking miners. In 2010, although the threat wasn’t carried out, BBC staff threatened to strike during the Conservative Party Conference, meaning that no BBC coverage of the event would be broadcast. Around the same time, there were reports of postal workers refusing to deliver election leaflets for the British National Party.

In each case, it could be said that free speech was being suppressed; but it’s worth considering the alternative. If print, television or postal workers decide that they don’t want to do the work necessary to amplify the speech of newspaper owners or politicians, then to insist on a right to speech that trumps their decision is essentially to say that these people should be forced to print, broadcast or deliver things against their will. The supposedly freedom-loving position ends up with the deeply authoritarian idea that people shouldn’t be allowed to decide what to do with their own bodies.

While these cases might be particularly clear-cut, a similar issue can be said to apply in the more common conflicts that take place around speakers at universities. In these cases, a speaker can amplify their ideas by associating them with the prestige of a particular institution; these institutions and their reputations have been built by the work of those staff and students who keep them running, just in the same way as newspapers are dependent on the work of printers.

In the case of, say, a dispute over whether a particular speaker should be invited to speak at Oxford University, to assert free speech as a guiding principle would essentially be to say that everyone should speak at Oxford University, which I’m not sure anyone truly believes: I have never been invited to address an audience at Oxford, and the odds are that you haven’t either, and no-one seems to be too scandalised about that fact. In which case, if me and you not speaking at Oxford isn’t a shocking infringement on free speech, then it’s hard to see how Marine Le Pen or Steve Bannon not doing the same thing is any different.

If we believe that, say, healthcare or housing is a right, then that is to say that no-one should ever be able to make a decision about whether someone else has access to healthcare or housing. In contrast, the “free speech” position in controversies over who gets to speak at Oxford doesn’t claim that no-one should ever be making decisions about who does and doesn’t get to speak there; instead, there’s a disagreement over who gets to make those decisions, with the ostensibly free-speech side favouring decisions being made by a relatively small number of people, behind closed doors and with no right of appeal, while the allegedly authoritarian protesters demanding that this or that speaker be denied a platform are requesting broader and more open involvement in these decisions. Again, we can see libertarian-sounding rhetoric about free speech hiding authoritarian and elitist assumptions, while the position of those demanding no platform points in the direction of students and workers being more involved in decision-making on the campuses that they maintain and reproduce.

Another area where “free speech” might be invoked, but turns out to be of little practical use, is controversies over content hosted on various internet platforms. Here, the relevant thing to consider is that, whatever DIY promise various incarnations of the internet may have held, the contemporary net is pretty much entirely private property owned and controlled by various corporations. We may well wish that things were otherwise, but ideals like freedom of speech don’t have that much relevance when talking about infrastructure run by corporations, where the limits of acceptability begin and end wherever the people with the money decide. We might think that a certain form of speech should be considered acceptable, and ask our corporate overlords to allow it, or we might think that a certain form of speech is unacceptable, and ask them to ban it; but either way, to think as though these entities can be motivated by moral principles, and not by the logic of the market and capital accumulation, is a dangerous delusion.

Moving on, another area where the absolutist free-speech position might seem more defensible is with regards to public space, or what’s left of it. Surely, the free speech-loving liberal might object, even if we allow printers to decide what they print, and staff and students to decide how their campuses are used, parks and streets must belong to everyone? But here, too, “free speech” as a general principle is a poor guide. Let’s say a fascist group wants to use a particular park to have a nationalist rally on a particular day. Perhaps it would be a denial of their freedom of speech to refuse them. But what then happens, if, say, an antifascist group wants to use that space to hold an antifascist rally on that day, and a third set of people want to have a nice quiet family picnic there, an aim that’s probably not compatible with either of the other two? If denying the fascists the use of the park on that day would offend against freedom of speech, then surely denying the other two groups the same space would be equally as bad; so again, when judging these competing claims, freedom of speech cannot serve as a useful guide.

So, that’s a few situations where we can’t rely on free speech as a principle. But this doesn’t mean, as some might be tempted to conclude, that the concept is useless. As well as the conflicts mentioned above, all of which turn out, on examination, to be about access to particular resources rather than just speech itself, it is also the case that the state has the power to ban certain forms of speech outright. This, I think, is something that can rightly be described as a free speech issue, or as censorship, and is something that people who care about freedom should oppose.

A look at history shows that there are many cases of laws and state powers being brought in on reasonable-sounding, seemingly laudable grounds, only to be used in far more wide-reaching ways. In a recent exchange with anti-fascists, Matthew Feldman, an academic associated with the Center for Analysis of the Radical Right, praised the Public Order Act 1937 as being key to stopping Mosley’s Blackshirts, describing it as “use of law rather than force”. To start off with, this distinction between law and force is in itself somewhat odd, suggesting that Feldman doesn’t quite understand how the law functions or what a state is. Beyond that, any serious consideration of the POA 1937 and its impact can’t just stop with its application in the 1930s, but has to include the way it was used against Irish republicans wearing berets in the 1970s and against striking miners trying to picket in 1984-85.

Similarly, the laws around racially aggravated offences brought in by Labour in the 2000s might seem like something that anti-racists should support, but it’s worth bearing in mind that any laws, no matter how progressive-sounding, will be enforced by the same racist state. An example of this can be seen in the case of Azhar Ahmed, who was prosecuted for making a tasteless facebook post about dead soldiers. The CPS initially attempted to charge him with a racially aggravated public order offence, before eventually managing to convict him of posting a grossly offensive message.

Ahmed’s prosecution is just one of a number of cases where people have faced actual state censorship, the most direct and drastic way that speech can be suppressed, while gaining little attention from many of those who are most loudly concerned about free speech. We can also look at the case of Barry Thew, a father whose son died in circumstances which led him to blame the police, and so made a strongly-worded anti-police t-shirt as a result. He was then sentenced to prison for having the bad luck to be wearing the shirt on a day that two officers were shot. The case did attract some attention at the time, but nowhere near as much as usually comes from the free speech warriors who jump into action every time a media commentator has to apologise for saying something stupid, or an academic has to suffer someone disagreeing with them.

For yet another example of someone facing state censorship, but not being quite the right kind of person exercising the right kind of speech to get much attention, we can consider Tony Cox, who volunteers to accompany benefits claimants to their interviews in Dundee and has twice been prosecuted, once successfully, for allegedly using offensive language that amounted to "threatening behaviour" while doing so. It would appear that there are people actively trying to suppress Cox’s freedom of speech, and willing to use very heavy-handed and authoritarian means to do so, but curiously enough there don’t seem to be many impassioned Rod Liddle or Toby Young columns defending him in the Spectator.

Similarly, the drill rappers AM and Skengdo were given a court order banning them from performing their song Attempted 1.0, and then given a suspended sentence for breaching the injunction, but again, their story doesn't seem to have made it into the regular canon of examples of free speech being suppressed.

Over in France, those who lost their lives in the Charlie Hebdo attack have, quite understandably, become remembered as martyrs in the cause of free speech, but accounts of those events often tend to miss out what happened next, when 69 people were arrested in a single week, a wave of repression that caused Amnesty International to warn that the French state risked failing a “litmus test” of its commitment to freedom of expression. It’s important to stress that these arrests were not for any actual involvement in planning terrorist acts, but merely for “l’apologie du terrorisme” - that is to say, for voicing unacceptable thoughts and opinions. In an unforgettable twist, news reports mentioned that one teenager was prosecuted for posting “an ironic comment” that was deemed to be disrespectful to the satirists.

Any meaningful defence of free speech has to cover both Charlie Hebdo’s right to blaspheme, and the right of others to blaspheme against the secular saints and martyrs of Charlie Hebdo. This is not to equate the violence of Islamist killers with the violence of the state’s gendarmes, judges and jailers, but just to insist that anyone who ignores one form of repression and focuses solely on the other is not serious about defending the freedom to express unpopular views.

One other aspect of the subject worth considering is that of speech in the workplace, and the coercive threat of being fired as a result of speech. As threats go, this might not be quite up there with being imprisoned or killed, but in a society where we have to work to get money, and we need money for everything, it is among the more serious threats someone can face. It’s certainly a more serious form of consequence than just being banned from youtube or disinvited from the Oxford Union or wherever.

At first glance, this might seem like one aspect of the situation that the free speech brigade do have pretty well covered, as a fair proportion of the stories that get picked up as being about threats to speech involve people getting in trouble for things they say at work; but on closer examination, it’s noticeable that the vast majority of these cases involve academics or media commentators. Hidden behind these stories are all the other cases of people being sacked or disciplined for things they say at work, things that are rarely seen as being shocking infringements on freedom or even that newsworthy: from construction workers being sacked and even blacklisted for speaking up about health and safety issues, to every call centre, warehouse or shop worker who gets told to shut up and get back to work.

Challenges or limitations to “academic freedom” or “the free press” tend to be picked up and treated as news, but it’s taken for granted that work is a space of radical unfreedom for everyone else. If a university teaching assistant gets disciplined for showing a Jordan Peterson video and insisting on making everyone discuss pronouns, it’s news; but if you or I showed our colleagues a Jordan Peterson video during working hours, and insisted on making everyone discuss pronouns for long enough, we would also quickly find ourselves disciplined, not because our views on the subject are so radically provocative, but just because it’s not what we’re paid to do, and while some workplaces are more relaxed than others, most of them will crack down on any non-work activity sooner or later. Certainly, some forms of speech – anything likely to “bring our employers into disrepute” or the like – are liable to get stamped out very quickly.

In light of this, the way that free speech advocates tend to ignore most workplaces and focus on a few professions is reminiscent of Bakunin’s classic line about how “liberty without socialism is privilege, injustice; and... socialism without liberty is slavery and brutality.” If you want to fight for free speech, and you think that freedom should cover work, the place where many of us spend most of our waking hours, then that freedom can’t just be a privilege (in the original and most literal sense of the word) reserved for academics and commentators, it has to be for everyone, which in turn means committing to defend the freedom for employees to defy their employers.

This may be a daunting challenge, but it’s a necessary one for anyone who seriously cares about freedom. And, once taken, it’s a first step that can lead in all sorts of interesting directions.