Freedom of expression and thought are cornerstones of any 'free society’. Who could disagree with such an uncontentious statement? It is not quite as simple. There are always going to be tensions and conflicts, but more and more the issue of what is 'free speech’ has become heated and controversial, with claims and counter-claims on what people have the right to say and shouldn’t say, and who can say it.
This can be seen across the UK and the West, from the rise of 'no platforming’ at universities to the emergence of pseudo-offence and challenge as in the recent Peter Tatchell case, and the definition of 'hate crime’ into 'hate thought’ in legislation such as the Offensive Behaviour at Football and Threatening Communications (Scotland) Act.
All of these are connected. There is a visible authoritarianism in public life, evident in the actions of governments, a systematic curtailment of civil liberties and gathering encroachment of the surveillance state. In places, there are highly sensitive attitudes about language, shaped by what groups can appropriate certain words. In a Western world which has been conducting a 'war on terror’ for the last 15 years, there are a host of tensions around terrorism, religion and race, as well as a variety of more esoteric Western privileged debates about identity. Missing from a lot of this is a sense of tolerance, dialogue and curiosity about the exchange of ideas.
There are numerous examples of government legislation in Britain which reduce civil liberties and freedom of expression – some of the most recent include the Counter-Terrorism and Security Act 2015 which will require universities to vet speakers, and the Investigatory Powers Bill allowing the collection of internet browsing records.
Two factors reinforce this. The first is the emergence of explicit campaigns which set out to limit and restrict free speech and debate. This is a relatively new phenomenon, not setting out to change minds and attitudes, but to stop certain modes of expression. The second is the empty vessel nature of much of what passes for public debate and conversation – its lack of depth, reference points, history or any kind of philosophical understanding.
This retreat can be seen in the diminution of political discourse and exchange – which the opening exchanges of the UK European referendum amply illustrates. The first weekend after David Cameron decided to call a vote saw the full panoply of clichés used to breaking point: 'best of both worlds’, 'better together’ and 'leap in the dark’, all road-tested to destruction in focus groups, as in the indyref.
A couple of years ago on the BBC 'Question Time’ programme, Vince Cable, then a Lib Dem MP and minister, and thus a very important national figure, discussed the limits of free speech. He did this by talking about the rights and wrongs of someone shouting that a building was on fire: right in the context of an emergency, wrong if there was no fire.
No philosophical or ethical observations were made by Cable, or indeed any of the panel. Nor were any historical, religious or ethnic distinctions, such as the once powerful influence of the blasphemy laws (abolished in England and Wales, but not yet in Scotland or Northern Ireland), or the complexities behind the offence of 'religious hatred’.
The Offensive Behaviour at Football and Threatening Communications Act was passed because of the need to be seen to do something. There is a problem in Scotland, mostly, not exclusively, with sections of the support of Celtic and Rangers. It had public support when passed, but most vocal supporters know little about its content or consequences. The legislative debate and the bill’s proponents had little understanding of its contents – sadly a common experience in modern Scotland, which usually passes without any comment.
Have any SNP elected representatives commented on the inadequacies of this legislation? No. One of Scotland’s most respected football commentators, Graham Spiers, wrote just after the act became law: 'This attempt at cleaning up Scottish society has turned into a nightmare, cutting to the very heart of civil liberty'. Spiers was initially of the 'something must be done’ tendency (as indeed I was once), but at least had the courage to change his mind.
This is bad legislation on every definition. It deems 'offensive behaviour’ as something subjective – i.e. inviting people to choose to be offended. This takes us into new ground, whereas the traditional territory has been that of a breach of the peace; now it is about the inherently loaded term of being 'offended’. The act takes this further, and invites us to consider whether anyone would be liable to be incited to public disorder by the 'offensive behaviour’, whether or not anyone is actually there to be offended. This creates a class of hypothetical incitees and secondary action crime. Finally, it distinguishes football from other sports and life, making certain behaviour illegal at watching or going to a football match, but nowhere else.
The Offensive Behaviour at Football and Threatening Communications Act has created dubious charges and sentences. It has predominantly, but not exclusively, affected supporters of Celtic and Rangers. At the trial of Partick Thistle fan Adam Richmond, 19, at Glasgow Sheriff Court two years ago for singing 'F*** Your Pope and F*** Your Queen’ (which Thistle fans sing to differentiate themselves from Celtic and Rangers), Sheriff Norman Ritchie QC said: 'You are not the sort of person who creates this problem and needs this legislation'. He was then found guilty under the provisions of the act, but the sheriff discharged him absolutely, meaning he had no criminal record.
The usual narrative on the act is that it shows Scotland cannot deal with these highly charged, controversial issues. One response stresses the historic problem and legacy of sectarianism and anti-Irish prejudice. Another emphasises the rise of a new authoritarianism, while others rail specifically against SNP centralisation. Seldom is this put in a light beyond Scotland’s borders and debates.
The thinking behind this act is part of a tendency across the UK and West of growing intolerance. It is an illiberal liberalism, which goes along with the mainstream consensus of economic and social liberalism of recent decades, of the acceptance, even celebration, of gross inequalities, along with the freedom to be socially and culturally different or distinct.
Historically, left-wing and radical liberal opinion believed that prejudice and bigotry would slowly be eroded by the forces of enlightenment. Greater economic and social freedom, choice and awareness, aided and supported by legislation, would change attitudes and lead to a new culture of tolerance and greater liberty. This is after all, the rationale for the great liberating social reforms of the 1960s and early 1970s: the abolition of capital punishment, legalisation of abortion, gay rights (which took to the 1980s in Scotland and Northern Ireland), equal pay act and outlawing of sex discrimination.
This debate has spawned a counter-account which can be described as a Cassandran 'we are all doomed’ viewpoint. This has been articulated in the UK by a group of former left-wingers who have embraced the right: examples include Melanie Phillips, Frank Furedi and Claire Fox. The latter two and others have coalesced around 'Spiked’ and the Institute of Ideas (itself spawned from the ultra-left Revolutionary Communist Party) and on the right, in groups such as the Henry Jackson Society.
The likes of Furedi and Fox believe the left has become focused on a mindset of censorship, delegitimising of certain views, and self-policing and policing others. This is, they argue, a moral reframing and rearming, often against working-class opinions, by middle-class, educated, articulate professionals.
Now there is some truth in this view, but they take it to the point of absurdity. Furedi and Fox think this an assault by a new bourgeois sensibility of a quasi-pretend left, in the absence of a revolutionary or radical politics, and end up supporting the right to offend, be bigoted and ultimately, to discriminate and exploit until the day their revolution comes – which as they know never will.
Yet, while it is easy to dismiss the simplicity of these views, they contain a grain of truth. Large parts of what passes for the left in the UK and West have lost their sense of optimism and of believing that minds, attitudes and behaviour can be changed. This is based on decades of disappointment, defeat and retreat. This has had the consequence that whereas the left was once animated by the feeling that the future was there to be collectively created and owned, now the future is viewed mostly with foreboding. Without the motivating vision of a better future, what many left-wingers are reduced to in the here and now is a practice of censoriousness and restricting free expression.
'No platforming’ is illiberalism taken to its logical conclusion. There are good arguments against debating with certain extreme views of hatred and people advocating or practising violence. Yet, context and intent are critical. The difference between Jeremy Corbyn and John McDonnell speaking to Sinn Fein and the IRA over 20 years ago, and the UK government’s discussions with both in the Northern Irish peace process, is night and day.
Germaine Greer was 'no platformed’ at Cardiff University because she had expressed what are seen as unenlightened views on transgender. Greer unambiguously expressed the view that male to female transitioning does not change the gender of a person. For many transgender campaigners this essentialist statement is seen as incendiary and an affront to their right to define their gender.
Peter Tatchell has campaigned tirelessly for human rights, specifically lesbian and gay rights, for decades. He has done this at great personal cost, being physically assaulted many times, and faced endless abuse. It is beyond irony that in the last few weeks, a NUS officer, Fran Cowling, would not share a platform with Tatchell. The reason was that Tatchell had publicly defended Greer’s right to say the above – not defended her views, which Tatchell disagreed with. For Tatchell’s defence of free speech, he was branded by Cowling 'racist and transphobic’.
Tatchell said that as a left-winger it has often been the left who have caused him problems. In the 1970s, many left groups such as the Socialist Workers’ Party and Militant were explicitly against gay rights, Tatchell reflecting: 'At this stage, the British left were homophobic. They said that homosexuality was a "bourgeois perversion", a "manifestation of capitalist degeneracy", and it would disappear in a pure socialist society.’ It was that kind of age: of believing in a very narrow form of political change and revolution.
This is a problem that needs addressing. What are the common rules of dialogue, exchange and mutual respect that operate in a pluralist society? Some on the left have stopped seeing political change as being aided by these universal truths, and instead have adopted a mindset of control and censorship. The right-wing have their own censors, increasingly wanting to restrict and delegitimise opinion on such subjects as terrorism, how one can describe Israel/Palestine, and immigration. It does so via the power of using pejorative and labelling language, aided in places by a right-wing, xenophobic press.
It isn’t very surprising that the rather simplistic left-wing student retort of asking people to 'check your privilege’ – whether it be class, race, gender, disability or another area – creates apoplexy on the right. For in today’s unequal, anxious society, where young people have such divided opportunities, and students sizeable debts, this is a mindfield.
There has been a cultural shift in English universities because of the scale of fees, with many students starting to see themselves as customers and becoming more assertive. This has contributed to the call for university 'safe spaces’, with academic Joanna Williams observing that ‘academics are teaching that words can inflict violence and oppression and should be censored’, describing this as 'freedom from speech.’ This is the context of the brouhaha about the statue of Cecil Rhodes at Oxford University and the Rhodes Must Fail campaign, along with Britain’s problematic legacy of empire and imperialism.
Britain, for all its romantic traditions of liberty and justice, has been historically a rather limited, truncated democracy: one where freedom of discussion and exchange has been through the ages, constrained by the dominant elites, classes and their codes. Scotland likes to tell a different story, of ourselves as a diverse assembly informed by a 'democratic intellect’, but we have consistently fallen short of this, while seemingly not bothering to notice too much the gap between myth and reality.
Freedom of thought and expression is under attack all across the world and alarmingly in countries which see themselves as 'great democracies’. We need to have a reality check on this, recognise the harm of left and right intolerance, and the hold of illiberal liberalism. Scotland sadly isn’t that different from this growing trend, and this condition extends way beyond the sins of the Offensive Behaviour at Football and Threatening Communications Act.
Understandably, many felt pride at the democratic spirit and engagement of the indyref – which reached parts of our country long beyond the appeal of party politics. Yet, such a rising tide has to recognise the limits of much of public life, and that if a new constitutional settlement has any chance of linking to what are called 'bread and butter issues’, then the process of how people own it matters. As does how a constitution becomes a living and breathing document – one which isn’t just a Potemkin version of Scotland like the Soviet constitution of the Stalin era or former Supreme Court Justice Antonio Scalia’s idea (and the dogmatic right’s) of the US constitution as it was originally intended: a Biblical view of fundamental rights.
We have to go beyond abstractions such as telling ourselves how wonderful 'the sovereignty of the people’ is, while allowing arbitrary decisions to be made by authorities which infringe liberty. A start could be made by repealing this terrible act, but more important, we need to rediscover the art of living together, and how we relate to each other beyond material wealth and status. That means challenging the fear of the future so evident in our societies, which is a major motivation in the European referendum. We have to assert not just facts and figures about things like immigration and the EU, but reassert the power of the future and hope. And that requires having the courage to relate to each other in a manner deeper and more powerful than mere money and position.