The limits on free speech

Free speech is something I am passionate about; legal limits upon it make me feel distinctly uncomfortable. But there are other limits than the law, and other desirables - such as truth, and one of its corollaries, an avoidance of prejudice - which should temper free speech. But what is prejudice? It is not simply a critique which causes offence. As J. S. Mill argued in On Liberty, “if the test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful”. Prejudice is an irrational opinion of a collective group.

Racism, homophobia and Islamophobia are all examples of prejudice - there are, to societies’ shame, many more. Prejudice judges all it includes within a particular collective as innately possessing malign characteristics. Prejudice is to move beyond a critique, however harsh, of practice or certain individuals to unsubstantiated labelling of an entire group. It is to make the leap from a phrase such as “Islam is…” - however harshly such a phrase unfolds - to “all Muslims are…” While criticism, however offensive, should be tolerated, prejudice should not.

Nevertheless, merely uttering prejudice should not be illegal, even if acting upon it, in many cases, should. But that does not that mean prejudice should not be rebuked. To move from the general to the particular - without breaking an undertaking not to disclose detailed content of the incendiary ‘Crucification’ issue of Clareification I was briefly at liberty to peruse - disciplinary action by Clare College would serve to so condemn prejudice, if only Clare’s authorities would be open about the issue’s content. Crucification was devoted to religious satire, but in parts satire as critique slipped into satire as prejudice. The former is a vibrant tool of free debate. The latter has no place in a modern Cambridge College.

Freedom of expression in TCS

My considered thoughts on freedom of expression, as summed up for TCS:

It has been a sad week for freedom of expression. Hrant Dink, a prominent journalist convicted last year of insulting Turkish identity in an article about the Armenian genocide of 1915, was shot in Istanbul. Brigitte Zypries, the German minister of justice, announced that Germany would be using its current presidency of the European Union to push for an EU-wide ban on Holocaust denial and the display of Nazi insignia. There is obvious gulf between these two cases, and it might be considered crass to compare the killers of a man who fought for the recognition of a genocide with a government intent on making denial of another genocide a crime. But the death of Hrant Dink is a sickening illustration of the dangers of government enforced versions of the past.

Dink was the editor of the bilingual Turkish-Armenian newspaper Agos, which published a series of articles examining the Ottoman Empire’s treatment of Armenians during World War One. One of these contained a line in which prosecutors claimed Dink denigrated the purity of Turkish blood, and in October 2005 he was convicted under article 301 of the Turkish penal code - an article which makes it an offence to insult ‘Turkishness’ - and given a six-month suspended sentence. With the state having declared his guilt, Dink began receiving an increasing volume of threats and feared for his safety, a fear realised on Friday with a bullet to the back of his head.

The intentions of those seeking to criminalise Holocaust denial are admirable. To distort the past and accuse a people who suffered so much of the greatest fraud in history is a loathsome and dangerous act, and it is already illegal to do so in nine EU member states. But by claiming the right to silence contrary opinion the state empowers individuals to do the same, and silence their opponents as Hrant Dink was silenced on Friday. Free debate in Europe will not undermine the factuality of the Holocaust, but across the Bosporus a frank discussion of the events of 1915 might reconcile modern Turkey with a fuller account of its recent past. As part of Turkey’s stalling accession talks, the EU is pushing for legal reform. If it wants article 301 written out of the statute books, member states should argue from a position of enshrined free speech and not hypocrisy, and instead of extending the illegality of Holocaust denial, abandon attempts to cosset the past.

Turkey and free speech

"A bullet has been fired at democracy and freedom of expression": the reaction of Turkish Prime Minister Recep Tayyip Erdogan to the assassination of Turkish journalist Hrant Dink, the prominent editor of Agos, a bilingual Turkish-Armenian newspaper. Dink’s death further underlines the dangers of government-sponsored versions of the past; if the state claims the right to silence contrary opinion, individuals are empowered to arrogate this right too. Convicted in October 2005 of insulting Turkishness under article 301 of Turkey’s penal code, Dink was of Armenian descent, and wrote fearlessly about the genocide of Armenians which occurred at the hands of the Ottoman Empire in 1915, a genocide which is denied by Turkey’s nationalist community. The EU is seeking reform of the Turkish justice system as part of its application for membership, but by having laws against Holocaust denial it is arguing from a position of hypocrisy, while French flirtation with criminalising denial of the Armenian genocide last October served only to inflame and entrench Turkish nationalist opinion. Far better for a free debate on all topics and all sides, and truth will out. Prime Minister Erdogan has been courting the nationalist vote in the run up to elections this year. But if he is really serious about freedom of expression, it is time to dismantle 301.

Holocaust denial

Germany wants to use its current presidency of the EU to outlaw Holocaust denial and the public display of Nazi insignia across Europe. Britain should take the lead in opposing this direct attack on freedom of expression, as it did when similar proposals were successfully blocked in 2005. But any response to the ideas of Brigitte Zypries, the German Justice minister pushing for an EU-wide ban, has to be more than an automatic dismissal, however tempting a simple assertion of a supposedly quintessential British value might be. Undoubted harm is caused by so-called ‘revisionists’ spinning dangerous lies which feed modern anti-Semitism and its associated conspiracy theories, and if we are to oppose the criminalisation of Holocaust denial we have to show that free expression is the greater good. This challenge is to be welcomed, for confidence in our values can only be strengthened when we rise to their defence.

As it happens, such a claim is one important aspect of John Stuart Mill’s seminal championing of freedom of speech and deed, On Liberty. Mill contends that:

“the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error”.

How do Mill’s precepts relate to Holocaust denial? Scholars, survivors and witnesses are certain that the Holocaust was a very real, and very terrible, historical event. Why risk exchanging fact for dangerous error by allowing a free debate on the subject? Mill would argue that unless a case against the Holocaust is made, our belief in it will be a “dead dogma, not a living truth.”

“Unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds”.

But do these passages from On Liberty really ring true in the case of Holocaust denial? Pace Mill, allowing extremists and their apologists to set forth their poisonous arguments clouds rather than enhances society’s understanding of the Holocaust by implying unwarranted doubt. A sounder defence of freedom of speech in this instance is more prosaic than Mill’s idealism. It is that denying free speech only gives those who challenge society’s sacred beliefs needless publicity and an artificial moral high ground. In an interesting piece for yesterday’s Guardian, Timothy Garton Ash argues that “well-intentioned bans actually feed the flames they are meant to quench".

“Nine EU member states currently have laws against Holocaust denial: Austria, Belgium, the Czech Republic, France, Germany, Lithuania, Poland, Romania and Slovakia. That happens to be a list of countries with some of the strongest rightwing xenophobic parties in the EU, from France's National Front and the Vlaams Belang in Belgium to the NPD in Germany and the Greater Romania party. Self-evidently those parties don't exist as a result of Holocaust denial laws. Indeed, the existence of such parties is one of the reasons given for having the laws, but the laws have obviously not prevented their vigorous and dangerous growth. If anything, the bans and resulting court cases have given them a nimbus of persecution, that far-right populists love to exploit.”

Holocaust denial is abhorrent, but that is all the more reason not to make martyrs of Holocaust deniers.

But don’t abandon John Stuart Mill just yet. If he is naïve on the dangers of unchecked prejudice, he is right to assert that free speech is the most effective mechanism for allowing truth to trump error. Europeans, even in the nine EU states where Holocaust denial is a crime, are truely blessed with a vast arena of free expression. Holocaust denial laws chip away only at the very edges of this space. But others elsewhere are less fortunate, and curtailing freedom of speech in Europe sends out the message that it is for the state to decide which version of history to trumpet and protect. A frank discussion of the past is the best hope people in places such as Iran, whose president Mahmoud Ahmadinejad has described the Holocaust as a ‘myth’ will ever have of getting at the facts. Europe should demonstrate that the Holocaust is a living truth which doesn’t need to be propped up by law.