In this celebration of the 60th anniversary of Article 19 of the Universal Declaration of Human Rights, AC Grayling says freedom of speech is the most precious of rights – giving us the chance of being fully human.
(As published in Index on Censorship)
Most human rights instruments begin by asserting the right of every human individual to life, liberty and security. Arguably, the further rights that such instruments proceed to list are crucial to the possibility of these three, and especially to the second. But it is also arguable that among the other rights — to equality before the law and due process in its application, to privacy, to freedom of movement, to property, to family life, to association with others, and the rest — the one that matters most is free speech.
Without free speech one cannot claim or defend one’s other rights. Without it there cannot be democracy, which requires open discussion of policy ideas and party manifestos. There cannot be a due process of law without free speech, because in its absence one could not defend oneself against accusations, seek remedy against those who have wronged one, or gather and scrutinise the evidence required to make or refute a case.
Without it there cannot be education, inquiry, discussion, the imparting or receiving of information, the testing of opinion or the challenging of falsehoods. Without it there cannot be a free press, which along with an independent judiciary is an essential of a free society. Without free speech there cannot be living art, literature and theatre, which is to say: culture worth the name. Without free speech there are serious limits to the possibility of social novelty, experiment and change. To put matters in summary terms: without free speech other freedoms and rights suffer, if they are possible at all.
The 35 words constituting Article 19 of the Universal Declaration of Human Rights (UDHR) end with these three: ‘regardless of frontiers’. The article accords everyone the right to freedom of opinion and expression, and states that this includes the freedom to ‘seek, receive and impart information and ideas’ without interference, through any media, and ‘regardless of frontiers’. Undoubtedly Article 19’s drafters — the committee under Eleanor Roosevelt’s redoubtable chairwomanship — did not mean ‘frontiers’ only in the literal sense of barbed wire and army-controlled checkpoints, but the invisible borders of distortions, enforced silences and lies that had aided the oppression of people within, and the making of war between, nations in the tormented decades before the United Nations came into existence.
On this reading, one recognises that the frontiers imposed by controlling political and religious arrangements still remain, interfering with opinion, expression, and exchanges of ideas and information, and doing it by a range of means — from Internet censorship in China to terrorist massacres of people in the United States, Britain, the Netherlands, Spain, Afghanistan, Pakistan and the Middle East. As illustrated by such examples as the murder of Theo van Gogh in the Netherlands and death threats against Danish cartoonists, one of the main current frontiers against freedom of expression is religious sensibility, in the form of claimed feelings of affront sometimes coupled with the threat, implicit or otherwise, to silence with violence those who speak their mind in ways unacceptable to the threateners. But violence is the extreme: milder forms of the same phenomenon have closed a play and attempted to prevent a screening in Britain (Behzti in Birmingham, Jerry Springer the Opera on BBC television), and the mere existence of claims of offence and the possibility of violence result in the most insidious of all forms of censorship, namely self-censorship.
The history of thinking about free speech is enough by itself to show why these new, or renewed, forms of attempted censorship are unacceptable.
For a large slice of the last two millennia, the control of opinion by arbiters of orthodoxy was a drag on the progress both of thought and society, until the gradual increase in freedom of conscience, inquiry, opinion and expression between the Reformation of the 16th century and the Enlightenment of the 18th century (for convenience one might call this the ‘liberation era’) brought the modern world into being, premised on the ideas of rights and entitlements of which free speech is a central feature; along with liberty of the individual and institutions that would protect both. The documents of the American and French revolutions were the clearest systematic encoding of the ideas; subsequent western history more slowly came to witness their partial practical application.
The idea of societies defined by the rights of their citizens was severely tested in the first half of the 20th century by attempts to duplicate the kinds of control over individuals — over their thought as well as their outward lives — that had been the norm prior to the liberation era. Nazism and Stalinism were ideologies that demanded submission of thought, speech and action on pain even of death for not conforming. As counter-Enlightenment movements, designed to reverse the liberation era, escaped from previous monolithic orthodoxies, they demonstrated the need for a vigorous entrenchment of the individual rights and liberties they denied. That is why, immediately after the Second World War, the new United Nations, under pressure from nongovernmental actors mainly — one might say, under pressure from educated world opinion — undertook as one of its first acts the drafting and adoption of the UDHR. The rights in question were those egregiously violated by Nazi and Japanese aggression and its concomitants during the war, but by implication by all tyrannies everywhere. The idea of the universality of the rights listed in the UDHR condemns all tyrannies not only everywhere, but retrospectively in all times, including the deprivation of freedom of conscience, opinion and expression of scores of generations living under absolute rulers and religious orthodoxies.
In the world fashioned by what I am here loosely calling the liberation era, it was possible for open minds to assert what previously would itself have invited censure at least: the idea that all opinions must be expressible, because to claim to know which of them are true and which not is an unacceptable pretension to infallibility (so John Stuart Mill remarked). In any case, if we are principled we do not champion free speech only for those we agree with, but for those we disagree with too, even vehemently (as Oliver Wendell Holmes remarked).
Under the influence of such principles, explicitly adopted and defended in the UDHR, western regions of the post-Second World War world were ready to reduce not just the institutional but the social constraints on freedom of expression — ‘expression’ being understood in its proper wide sense to include ways of living and acting as well as speaking. Perhaps the high point of this fresh era of liberation as applied to speech was the Lady Chatterley court case in 1960. In the years before and afterwards, in both the United States and the United Kingdom, literary censorship was in retreat.
However, what the collapse of literary censorship represented was, in historical terms, a local and limited event. In the Soviet Union and China writers like Aleksandr Solzhenitsyn and Gao Xingjian suffered banning and exile, and Ayatollah Khomeini’s fatwa against Salman Rushdie in 1989 was a rude reminder that expression remained lethal. But even in the liberal democracies of the western world, expression did not become, and has therefore never been, wholly free. The image in film and television continues to be censored, officially and otherwise, and with the rise of religious fundamentalism, efforts to limit free expression have multiplied in the ways described earlier, by protestations of feelings of offence, threats, and even murder.
One main result of these tensions has been to revive debate about the limits of freedom of expression. The classic example of shouting ‘Fire!’ in a crowded cinema is often cited, the suppressed implication being that this is done when the cinema is not on fire, and that shouting ‘Fire!’ is therefore irresponsible and harmful. But you might say that the likes of Theo Van Gogh, Ayaan Hirsi Ali and Danish cartoonists think that the cinema is indeed on fire, and shout ‘Fire!’ accordingly, to warn everyone of the threatened immolation of their liberties of expression. And they are right.
But that does not settle the question of limits. In the United States, the First Amendment right to freedom of expression is taken to license forms of expression, such as pornography, which are elsewhere under proscription. Is there a principled way that the disagreement about limits can be settled?
Almost everyone but the anarchist or most ardent libertarian would agree that restrictions on expression can be justified to protect the rights of others, or in special cases to maintain public order, if in both cases the restriction is imposed according to law, is case specific, and is strictly limited in application.
These limitations, without quite this degree of limitation on the limitations, are permitted by the United Nations Covenant on Civil and Political Rights and the European Convention on Human Rights; the latter also permits restricting expression to protect security and defeat crime. But it is understood by the European Court to allow such restriction only if the interests of a democratic society are best served thereby. It could be argued that this test is in fact a stringent one, such that it makes one wonder whether the British government’s ban on demonstrations within one kilometre of the Houses of Parliament, now due for repeal, meets it. But it is easy to see, too, how governments can appeal to ‘necessity’ on any of these grounds in restricting expression, given the latitude permitted them.
‘The rights of others’ certainly includes limiting hate speech when directed at others in respect of matters that are not subject to their choice, namely their race, sex, age and disability if applicable. But efforts by proponents of religion to have speech they regard as offensive or blasphemous placed in the same category are wholly unjustified. Religious belief, political affiliation, and other matters of outlook that are voluntary should by no means license restricting others’ freedom of expression. This is one of the key struggles over free speech in our day.
The test of our principles about freedom of expression comes when we are faced with situations or persons we deprecate, and when we know the latter will say things that are ugly, disagreeable and provocative. In 2007, the Oxford Union, maintaining its reputation as a forum for controversy, invited the Holocaust revisionist David Irving and the leader of the British National Party, Nick Griffin, to speak in a debate. Controversy duly ensued, with some resigning from the Oxford Union Society in protest. But another of the participants, MP Evan Harris, expressed what is surely the right view: ‘The measure of our country’s respect for free expression,’ he said, ‘is our willingness to allow it for the most objectionable and offensive lawful speech, not just for those with whom we agree.’
What he could, and perhaps should, have added is that the best defence against bad free speech is better free speech, not proscription. There should of course be remedies against bad free speech which causes harm, as in the case of libel; not prior restraint of speech, but remedy after the fact. It might be of little comfort to someone injured by speech not to be protected from it beforehand, but the fact is that some important goods, such as freedom of expression, carry a cost that we have to be willing to pay, and this is certainly one of them.
The half-century since Article 19 was adopted by the United Nations, along with the rest of the UDHR, has seen severe tests both of the principle it embodies and the willingness of interested parties to fight for and against it.
That fight has been about frontiers: what they are and where they are. The article says ‘regardless of frontiers’; ever since those words were written the barbed wire of frontiers has been strung again and again across the path of expression. The response has to be to say, likewise again and again, why freedom of expression matters: without it one cannot have and exercise one’s other rights; without it, therefore, one cannot have a chance of beingfully human.
AC Grayling is professor of philosophy at Birkbeck College, University of London and one of the UK’s most prolific and well-known philosophers. His many books include Towards the Light (Bloomsbury) and The Choice of Hercules (Weidenfeld & Nicolson)