Writing with the optimism of a high-Victorian liberal, John Stuart Mill said that the only legitimate restriction on freedom of speech was to stop the direct incitement to a crime. He picked the example of corn dealers. The 19th century poor hated them. They made inflammatory accusations that the dealers were enriching themselves by keeping the price of bread artificially high. But Mill said
‘An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.’
Notice that Mill did not say that the state could punish an agitator for libelling corn dealers by making false accusations of profiteering. Nor did he say that the authorities could prosecute agitators for inciting hatred against corn dealers. For it is not a crime to hate people — if it were, the whole world would be in prison. The authorities could intervene only when there was a direct incitement of a mob to violence.
This morning Swansea magistrates jailed a 21-year-old student called Liam Stacey for eight weeks for posting racially offensive comments on Twitter about Fabrice Muamba. After the footballer collapsed during a game, Stacey tweeted ‘LOL, Fuck Muamba. He's dead.’
According to the prosecutor, when his followers complained, Stacey directed racist comments at ‘other Twitter users — some of who [sic] were black men — and which are too offensive to print’ — although I thought that the principles of open justice demanded that his comments should be reported in open court and printed.
I’ve no doubt that he’s a vile man, who by the sound of it was drunk at the time he posted, but what remains disturbing about the case is that the Crown offered no evidence that Stacey had incited racial violence or any other crime. That his speech was racist was enough to send him down. This verdict, like so many others, shows how little confidence the judiciary has in wider society. It’s as if the judges, politicians and the police believe that a neo-Nazi can turn the usually placid British into Ku Klux Klan supporters with a few inflammatory words; that we are a bomb just waiting for someone to light the fuse and ignite us.
Their paranoid delusions show that the authorities neither trust nor respect the rest of the population. They do not understand that society has its own sanctions, and does not need detectives and prosecutors to police free speech. As it turned out, Stacey’s followers were more than capable of denouncing him of their own accord. Their condemnations were so robust he tried first to delete his posts, and then deny that he had written them. Far from being latent racists, willing to don the white hood at the first opportunity, his followers proved themselves thoughtful citizens.
The British state has moved far beyond the good, old advice that ‘the best answer to bad arguments is better arguments’. The danger of its power grab is not only that our illiberal ‘liberal establishment’ will use their excessive power to censor speech in the public interest — although it does just that in the libel courts all the time. As worrying a possibility is that its assaults on free speech — even repugnant and boorish speech — will strengthen the monster it wishes to tame.
If you doubt me look at the French elections, where the candidates of the far right and far left enjoy extraordinary levels of support. There are many reasons why extremists prosper in France, but one is that restrictions on freedom of speech encourage conspiracy theory. French law protects the privacy of public figures to an extraordinary degree. There are laws against holocaust denial and the expression of racial and religious prejudice. The French parliament is even proposing to make it an offence to deny the Turkish slaughter of the Armenians in World War I. Far from making France a happy multi-cultural society at ease with itself, the authorities have created a climate of censorship where the official version of events is not credible and every variety of crank flourishes.
It’s better to have arguments out in the open. Not just better in theory but in practice too.
