Freedom of Expression: Counting the Costs PDF
Preview Freedom of Expression: Counting the Costs
Freedom of Expression Freedom of Expression: Counting the Costs Edited by Glen Newey CAMBRIDGE SCHOLARS PUBLISHING Freedom of Expression: Counting the Costs, edited by Glen Newey This book first published 2007 by Cambridge Scholars Publishing 15 Angerton Gardens, Newcastle, NE5 2JA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2007 by Glen Newey and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN 1-84718-360-3; ISBN 13: 9781847183606 TABLE OF CONTENTS Editors Introduction.....................................................................................1 Can Speech Be Intolerant............................................................................9 Peter Jones Sex, Speech, and Status: New Developments in the Pornography Debate........................................30 Catriona McKinnon Aristotelian Privacy: Perfectionism, Pornography, and the Virtues of the Polis.........................54 Scott Davis Equality, Marginalisation and Freedom of Expression..............................74 Paul Kelly Permitting Dishonour: Culture, Gender and Freedom of Expression............................................97 Monica Mookherjee Mill’s Liberalism, Security, and Group Defamation...............................121 Glyn Morgan Political Liberalism and Reasonable Free Expression.............................144 Graham Long On Mill, Infallibility, and Freedom of Expression..................................169 Alan Haworth Mill, Liberalism, and Exceptions to Free Speech....................................191 Jonathan Riley Notes on Contributors..............................................................................211 EDITOR’S INTRODUCTION During the early years of the twenty-first century, freedom of expression has again become politically contentious in the UK and beyond. The UK Labour Government, whose attempt to enact legislation banning incitement to religious hatred was lost before the 2005 election for lack of Parliamentary time, reintroduced the measure soon after its victory in that election. The Bill finally received royal assent, despite fierce opposition in the House of Lords and beyond, as the Racial and Religious Hatred Act 2006.1 Whereas the Government had intended to outlaw the use of “threatening and abusive” language about a religion irrespective of intent, the Lords amended the Bill to provide that “[a] person who uses threatening words or behaviour, or displays any written material which is threatening ... if he intends thereby to stir up religious hatred” (emphasis added).2 During the Bill’s passage through Parliament its critics charged that the new law would deter artists, comedians and others from satirising or ridiculing religion, since such activities could be construed as stirring up religious hatred. Others voiced the worry that it would be impossible to identify religious groups with sufficient clarity: would pagans, for instance, receive protection under the legislation, or some 400,0003 self- professed UK adherents of the fictional “Jedi” religion? Since it was unclear how far the act of defaming, say, Islam as a religion would ipso facto count as defaming its supporters, it also lay open to doubt whether criticising religious doctrines as such would be outlawed under the measure.4 The ferment over the religious hatred bill reflected wider tensions in the UK and elsewhere over religion and cultural identity. Recently dispute has raged, for instance, over religious dress and how far its demands may justifiably be overridden by those of public and professional life. A 1 Online at http://www.opsi.gov.uk/acts/acts2006/20060001.htm. 2 On hate speech, see the papers by Peter Jones, Graham Long and Jonathan Riley in the present volume. 3 UK Census 2001. See http://www.statistics.gov.uk/census2001/profiles/rank/jedi.asp. 4 See Glyn Morgan’s paper. 2 Editor’s Introduction Muslim woman, Aishah Azmi, brought a claim for unfair dismissal and religious harassment after a Church of England school where she worked in Dewsbury, West Yorkshire, suspended her for failing to comply with its request that she remove her veil. The school said pupils found it hard to understand her. When she refused, Azmi was suspended from her job as ethnic minority achievement curriculum support assistant.5 Controversy also greeted the announcement by the Leader of the House of Commons and MP for Blackburn that he would henceforth request that Muslim women remove their veils when visiting him at his constituency surgeries. Meanwhile announcements by prominent employers such as British Airways and the BBC that they would limits their employees’ ability to wear Christian symbols such as the crucifix were denounced in some quarters. In November 2006, two British National Party officials were acquitted on incitement charges after one of them, the party’s leader Nick Griffin, was recorded describing Islam as a “vicious, wicked faith”. Some senior politicians called for a further tightening of the law following the acquittals. Tensions were not confined to inter-group disputes between Muslims, Christians and secularists. The play Behzti by the Bangladeshi writer Gurpreet Bhatti was cancelled by Birmingham Repertory Theatre on safety grounds following vigorous protests by Nasreen’s fellow-Sikhs. They objected because the play, set in a gurdwara, included a rape scene which they construed as sacrilegious.6 Defenders of the play accepted that Sikhs were sincerely offended but argued that they, like everyone else, had no right not to be offended.7 In the Netherlands, the film-maker Theo van Gogh was murdered in October 2004 after depicting violence against Muslim women in one of his films. In September 2006 Pope Benedict XVI was forced into the unprecedented act of issuing a pontifical apology for making remarks about a medieval Byzantine emperor, during an academic lecture in Germany, which were interpreted as anti-Islamic. In February 2006 the freelance historian David Irving was sentenced to three years’ imprisonment by an Austrian court under its laws against Holocaust denial. The most widespread controversy, however, was the uproar among Muslims which greeted the publication in the Danish newspaper Jyllands- Posten of cartoons depicting the prophet Mohammed in September 2005.8 5 The claim was dismissed but the court awarded Azmi damages of £1,100 for personal trauma. 6 See Monica Mookherjee’s paper. 7 See Alan Haworth’s paper. 8 See Paul Kelly’s paper. Freedom of Expression: Counting the Costs 3 The newspaper’s editor had decided to publish the cartoons when he learned that a Danish author had found it impossible to find an illustrator for a children’s book on Islam. Part of the background to the heightened sensitivity over religion lay in worries about terrorism after the September 11 attacks in the United States. Even before the attacks the UK Terrorism Act 2000 established a new offence of “incitement” to commit acts of terrorism. Latterly, a clause originally in the Racial and Religious Hatred Bill 2005 but dropped prior to enactment, outlawing acts “glorifying” terrorism, has been reintroduced in the 2006 Terrorism Act. Once again debate has focused on the difficulty of achieving legal certainty in respect of the proposed legislation, particularly in attempting to define “terrorism” adequately for statutory purposes.9 Several of the contributors to the present volume mount an immanent critique of liberalism, their aim being to show that the foundations of liberalism justify or even require exceptions to free speech. Some doubt whether the state can retain its professed neutrality – as, for instance, the Danish state did in relation to the Jyllands-Posten cartoons – when not only the effects of neutrality, but their very justification, seem to favour one side in the dispute. Others express concerns that free speech may violate or damage the civic equality to which liberals are committed. The questions begin, indeed, with the justification of free speech itself. It is not merely that some justifications for free speech, such as pragmatic ones, cut both ways. Unless blank use is made of the idea that free speech is an intrinsic good, censorship may be justified on the grounds that it is needed in order to promote the extrinsic goods or requirements which are held to justify free speech, such as getting at the truth. It may be needed to screen out interventions which may impede the production of messages or – until recently, a relatively neglected area of discussion – their reception. Even where free speech is held to be justified by some overriding moral commitment, such as equal respect for persons, restricting the opportunities and occasions of speech may be needed to underwrite substantive equality. * In contrast with the conventional approach which defends free speech on grounds of toleration, Peter Jones’ carefully argued paper asks whether 9 See e.g. British Irish Rights Watch, “The Terrorism Bill”, accessible online at http://www.birw.org/Terrorism.html.
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