Comment: Don’t fear censorship – it protects the vulnerable

By Anshuman A. Mondal

The prime minister was recently accused of tolerating racism by posing with some blacked-up Morris dancers for a publicity photograph. His accusers have, in turn, been accused of being over-sensitive or guilty of misreading.

It's a wearyingly familiar scene, played out every time there is a controversy of this kind. One side claims the right to freedom of speech, the other insists that other fundamental rights have been violated (for instance, to be free from racial discrimination). A stalemate ensues that is never resolved, but life moves on…until the next controversy flares up.

The giving and taking of offence is at the heart of these controversies. But what exactly is going on when people give or take offence? Is it simply a difference of opinion or interpretation, or are there deeper motivations and explanations?

To answer these questions we need to re-think not just freedom of speech, but also the idea of 'speech' on which it rests.

The common sense view of language is that is simply a vehicle of communication. It sees expression as merely the passing of information, ideas, concepts and images from one human to another. 'Speech' is therefore separated from action.  While making speech always involves an act – writing, verbalisation – the expression, once it is made, stands on its own, apart and distinct from the act which created it.

This underlies most contemporary understandings of freedom of speech. The first amendment of the US constitution, for instance, states that "Congress shall make no law…abridging the freedom of speech". If speech is not distinct from action, then this would effectively mean that Congress shall not make any law, which is absurd.

However, in his seminal book How to Do Things with Words, the Oxford philosopher J L Austin developed something known as 'speech act theory'. He argued that there were two broad categories of speech: the first, which he called 'constatives', are simply descriptive and informational; the second he called 'performatives', and they don’t simply say something, they do something. These forms of speech are therefore a kind of action.

In my book Islam and Controversy: The Politics of Free Speech after Rushdie, I argue that the giving and taking of offence are performative speech acts in Austin’s sense. They act upon the world and the work they do is political insofar as they aim to establish a power relation between offender and offendee. Put simply, to offend someone is to subordinate them, to put them down. Conversely, to take offence is to draw attention to that subordination.

The link between abusive speech and the performance of power is demonstrated by a simple thought experiment – how many offensive terms of abuse can you think of that apply to the white race, male gender or heterosexuality?

In a world where whiteness, maleness and heterosexuality are dominant, the number of offensive words for those not white, not male, or gay are legion. Class, too, offers its own lexicon of abuse. On the other hand, abuse aimed at the powerful does not carry anything like the same visceral force because it cannot do the same work – dominant groups can largely shrug them off because, in the end, their power remains intact.

From this perspective, one could argue that those accusing the prime minister – or those protesting against the Exhibit B exhibition at the Barbican recently – may, in fact, be taking offence in order to draw attention to the persistence and prevalence of racism in society. In a society that, rhetorically, at least, values equality as much as our own this can be a powerful political tactic.

The same is true of the backlash against Channel 4’s Benefits Street, where many have taken offence at the programme's perceived attempt to reinforce the abjection of the poor.

And it was true, too, of the Danish cartoons, which sought to demonstrate that Muslims were outsiders who could not cope with Danish traditions of mockery and ridicule. Those Danish Muslims who protested against them took issue with their positioning as backward and inferior aliens.

But there is also an ironic twist here. Because these speech acts are performances of power and vulnerability, people can take offence in order to appear powerless when in fact they are not. When people are outraged because ‘Christmas is cancelled’ or when native Brits claim ‘it's not our country anymore’ because there are too many immigrants, they are not making descriptive statements. Rather, they are appropriating the language of victimhood in order to make it seem as if ‘political correctness’, immigration and multiculturalism have put them at a disadvantage.

If some forms of speech are actions, then it follows that restricting or regulating them does not necessarily diminish freedom in speech in general, just as restrictions on some acts – say, robbery or murder – do not jeopardise freedom as such. Otherwise, the only true freedom would be anarchy.

But this is not how we currently imagine freedom of speech. Nowadays, we more or less take it for granted that freedom of speech should mean the freedom to say pretty much whatever we want even if we know that in reality we probably can't or shouldn't. 

Consequently, any proposed restriction on freedom of speech is believed to be a step onto the slippery slope towards totalitarianism. This was a key argument against the Racial and Religious Hatred Act 2006 – although a 2012 freedom of information request revealed only nine prosecutions and six convictions in the five years up to 2011 (possibly fewer – the attorney general has indicated only three prosecutions and one conviction).

Liberals are therefore left wringing their hands when it comes to nasty and abusive speech acts that are not currently illegal, such as Twitter trolling. It is all very well for a member of the elite to say that people should develop a thicker skin, but women and minorities who have to live with misogynistic and racist abuse cannot afford to be so sanguine.

And while it is undeniable that exercising our freedom of speech more ethically is absolutely vital, one way of doing this is to restrict or regulate certain speech acts in order to encourage it, and to discourage hateful or harmful speech.

Otherwise, freedom of speech can be expanded to the point of absurdity, as demonstrated by a recent Texas appeals court ruling that struck down a law banning photography of another person without consent for the purposes of sexual arousal or gratification. Apparently, the defendant’s desire to take indecent images of children in swimsuits – ‘targeting [their] breasts and buttocks’ – without their knowledge was protected by his right to freedom of speech, and any law criminalising this behaviour was ‘the stuff of Orwellian thoughtcrime’.

We need to recognise offensive speech acts for what they are: acts of subordination or insubordination, rather than a contest over conflicting 'truth-claims'. They have a profound effect on how members of society perceive themselves and their place within it, as well as causing emotional distress or psychological (sometimes even physical) harm.

If giving and taking offence is the idiom through which struggles over freedom and equality are being articulated in contemporary society then a society that desires a balance between freedom and equality is perfectly entitled to restrict and regulate offensive speech acts, either by legal means or through moral pressure. This is not the threat to freedom of speech that some might take it to be, but rather a shaping of the kind of freedom we, as a political community, believe to be desirable.

Of course, there are always risks that any given restriction may get the balance wrong and either inadvertently or deliberately smother individual liberty in the name of the greater good. Pakistan’s blasphemy laws – indeed, any blasphemy laws – are a particularly egregious example because they simply protect powerful institutions. The current practice of using super-injunctions in UK courts is another example.

However, freedom is always 'at risk'. This is what makes it valuable. And not all offensiveness is harmful, because acts of symbolic insubordination against power – and the abuses of power – are an important weapon in the fight for equality. But offensiveness against less powerful groups or against individuals is just a form of bullying and intimidation.

A good maxim would be 'restrict only if necessary – but if we do, then we shouldn't imagine that this necessarily threatens our freedom of speech'. In order to follow this principle, we need to see more clearly what is at stake in controversies over offensive speech. The politics of offensiveness is one of the ways in which the powerful can reinforce their superiority, but it is also a way for the powerless to draw attention to their subordination, and to fight back. If we see all restrictions on offensive speech as a threat to freedom of speech, then whose side are we on?

Anshuman A. Mondal is the author of Nationalism and Post-Colonial Identity, Amitav Ghosh, and Young British Muslim Voices. His new book, Islam and Controversy: The Politics of Free Speech After Rushdie, is out next month.

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