A defence of offence
In my first year of university, I saw the stand-up comedian Jerry Sadowitz. He started his routine as follows:
‘Nelson Mandela: cunt!’.
This immediately generated shouting and heckling to which he replied ‘don’t drink on an empty head’ before finishing the line as best he could against the noise ‘he [Mandela] still hasn’t returned that book I lent him.’
Now, this was in 1987 when Mandela was still imprisoned. It seemed to me at the time hilarious and also shocking. Looking back I can see quite readily the architecture of the joke and the devices through which it works. The extremism, fatuousness, and crudity of the statement – an opening line at a famously leftie Goldsmiths College – still makes me smile.
Also during my first year, student organisations protested a decision to cover the genitals on works in Fine Arts during a royal visit. (I think it was Princess Anne but this was before the internet so I can’t verify easily enough for the blog). I protested against a departmental closure (my own department!) and Clause 28. I also discovered the ideas of Karl Marx. I assumed that left-wing politics and a commitment to freedom of expression went hand-in hand.
I wonder how a comedian would get on at Goldsmiths now with a similarly constructed joke about, say, Malala. I wonder if that comedian would be allowed to perform. And, it makes my head buzz to imagine the myriad threads of debate, polemic, and nastiness that social media would generate like a big dirty PA system turned up to eleven.
Of course, we don’t need to resort to Malala hypotheticals. There are examples of no-platforming, viral debates about censorship, and scandal exposés regularly irrupting onto our virtual media streams. What strikes me about these attention spikes is how rehearsed positions are. Deluges of broken logic, reductio ad absurdum, I feel therefore I’m right-speak, and genuine craziness together make filtering for the purposes of thinking about an issue all but impossible.
Freedom of speech and the stress test of political regulation
There is a familiar liberal source code worth recalling in relation to free speech or expression which is that the test of your commitment to free speech emerges when people say things that you don’t like. The more unpleasant the text, the more it stresses your commitment to free speech. I would not support the banning of an antiabortion demonstration, or a public speaker with homophobic views for example even though I have visceral disagreements with these two positions.
The stress comes from the fact that political disagreement is visceral. Consider those two interventions into the public political space a little more concretely: a public speaker who argues that homosexuality can be cured or a group of people waving placards with foetuses at young women and medical professionals entering a clinic. You can readily comprehend that public disagreement is not simply about differences over the relative merits of evidence or the critical assessment of the consistency of normative positions. It is aesthetic and affective, which is to say that it generates strong emotional relays as well. This is why disagreement and offence (or similar emotional responses) bundle together.
Disagreement is passionate for those engaged in political discussion. And this is pertinent to how we understand the dynamics of free speech. For example, some offensive statements are not just disagreeable; they are also – by design and/or effect – oppressive in their passions. I witnessed an EDL rally in Croydon on a Saturday morning once and wondered how this clutch of fifty or so visibly racist men affected the black people watching them behind the police barriers. The EDL had the right to march; but the effects of the march must also be considered because these effects might well temper other people’s capacity to express themselves freely.
Pristine libertarianism’s anti-politics
One core aspect of this issue is the familiar harm principle – that speech acts which damage or constrain the freedom of expression of others can reasonably be restricted on the grounds of broader liberties. This is why all liberal states have some regulation and legislation concerning what cannot be said in public.
There is no pristine way of generating principles or rules about what constitutes legitimately banned public speech. The attitude of those who declare for freedom of expression should be cynical and eager to identify a bare minimum for the law to stop public address. It should worry about the state’s eagerness to regulate and it should push against projects of overweening cultural censoriousness.
But it is naïve to imagine unconditional free speech in any political community. To do so is effectively to take a non-political standpoint. Simply to declare in absolute fashion that everyone has an inalienable right to say anything they want in public spaces is to ignore the foundations of political association and discourse. All political communities are forged in part through a widely-shared acceptance that states regulate public discourse in order to ensure a rough parity of citizenship for all and a defence of public order. This is a constitutional and ongoing aspect of what politics is.
There is a necessarily unstable and tense balance here between freedom of expression and the regulation of the conditions that enable it as a diverse and Babelesque set of political practices. Where offence and fear intermingle in the effects of speech in public, there are good reasons to consider the suppression of freedom of expression in specific conditions. Where public expressions of political views create such intense levels of offence and fear that they generate insecurity and public disorder, those expressions can also reasonably be banned or heavily regulated. These are core practices of liberal states and not to engage with the imperfect and agonistic processes of regulation in the name of an unconditional libertarianism is simply to move outside of politics altogether.
Victims and victimology
A full-blooded libertarian might argue that if you disagree with a statement about, say, homosexuality, Islam, or immigration you are free to express that disagreement. As if there are no underlying structures of oppression and fear. This is, again, an anti-political move in that it takes no account of systemic inequalities in the constitution of political agency.
To assume that, say, gay people can challenge a homophobic public statement in the same way as a straight person can is to ignore historically-constructed political oppression. Let us assume that people from an oppressed group have been publically insulted, threatened or attacked, subjected to insinuating prejudices at work or in encounters with public authority. That is a good part of what historical oppression means. To expect speeches aimed against an oppressed group to be challenged by people from those groups is remarkably naïve and might have the consequence of reinforcing experiences of powerlessness.
One response to this argument is to say that moderating public speech in defence of the well-being of oppressed groups is to reinforce another aspect of that oppression which is their victim status. It is true that a political auditing of offensive speech can patronise oppressed groups, and victimology has its own political dynamics.
The tense cohabitation of an awareness that systemic oppression creates victims and victimologies (the characterisation of those people’s agency predominantly as politically weak) is another facet of political practice in liberal societies. It is ‘dirty politics’ in which ideals or perfected principles at most inform responses and judgements to specific political contentions.
Most liberal societies have by-and-large managed these balances between freedom of expression and citizenship/public security and freedom of expression and historic oppression better than other kinds of polity. The best balances seem to be struck when states do as little as possible and civil societies are as energised as possible. The best kind of silencing of prejudiced and reactionary public speech is public opprobrium and protest but this is not mutually exclusive from the actions of government.
Free speech and institutional context
The stronger the mobilisation against a form of public political discourse, the more likely it is to have more profound political effects. In this respect, institutional context matters a great deal. The nature of a political organisation is directly relevant to how freedom of speech is negotiated.
Making a sexist joke in a lift that other men laugh at in the presence of women in the lift does not look like playful irony, to put it mildly. Expecting those women to challenge the joke is an expression of the kind of anti-political libertarianism outlined above. Come on women: challenge the joke, laugh it off, suck it up! But, surely, alternatively, to derive from this unpleasant and oppressive encounter a motivation to regulate behaviour pushes worryingly as the normative a priori of freedom of expression. Or does it?
Here we have another example of how important real political practice is. The issue here is who is doing the regulating. It is an institutional question. States might impose laws and codes about free speech in the name of equal rights for all or public safety. But it is also the case that civil society organisations can regulate the way public speech is enacted in ways that seem quite legitimate and publically defensible.
Expecting a government agency to discipline a twerp who makes a sexist joke in a lift is clearly authoritarian. Expecting a membership-based organisation that has a publically-declared code of conduct that has clauses in relation to gender to consider this joke when expressed within the organisation’s remit is not an oppression of free speech but rather the ordinary functioning of a free association with a political-institutional identity.
These rules also pertain to broader public bodies. Public service organisations such as the police force or national health service have codes of conduct that stress equal treatment. If speech acts by employees of these organisations does violence to this institutional ethos then it is legitimate to consider disciplinary action. This is the case whether statements are made in a café or in a meeting inasmuch as the venue is institutionally-identified: if the speech is on the premises of the organisation or made to co-employees. This speech should not be unconstrained by regulation, nor should it be considered private ‘banter’. It is possibly a contravention of transparent and publically-constituted modes of conduct for an organisation whose raison d’être and core legitimacy is non-discrimination.
Offence is a key property of freedom of speech. Indeed, without it, freedom of speech has no political value at all. But, to make an absolute principle of the value is to efface all of the concrete practices that the negotiation of free speech demands within a polity. Notions such as a ‘right to offend’ can only maintained through tense balances of political negotiation. To argue that everyone has the right to say what they want seems as anti-political as arguing that everyone should only say what is right.