Tag Archives: free speech

What’s so wrong with words?


Thane Rosenbaum’s book is part of a growing literature in the US, expressing doubts about that country’s free speech (“First Amendment”) tradition. Most of my readers come from the UK so it’s worth explaining what he’s against.

In as short as I can make this for Brits: the US Constitution was ratified in 1790. Eighteen month later, the First Amendment was added, as part of a group of amendments all protecting the individual from arbitrary government by protecting rights to jury trial, the right to silence, etc. The first amendment limits the legislature from curbing free expression, “Congress shall make no law … abridging the freedom of speech”. For more than a century after the amendment was ratified, judges ignored it. In the 1920s, judges invoked the first amendment, but in a canting, hypocritical way, eulogising its importance while criminalising all speech Socialists, Communists and radical trade unionists.

Since 1945, the First Amendment was extended beyond its original remit (“Congress shall…”) to include all parts of the government, and all private citizens in the US. All speech has required to be tolerated, even pornographers, fascists… Since about 1990, free speech has become a totem for the US right, a shield to protect everything they say, and a sword against their enemies. So, after the Trump coup of 6 January, the President defended himself from impeachment was by saying that it didn’t matter that he had incited his supporters to kill, to destroy property, or to sack Capitol Hill, the First Amendment makes all speech legal, irrespective of what comes from it.

Through the 39 chapters of his book, Rosenbaum gives his readers a series of reasons to doubt whether the First Amendment still does any good in protecting what most people would consider free speech.

His book begins in 2017 with Charlottesville, and the various neo-Nazis gathered there to chant “Jews will not replace us”. The idea behind that chant is the belief that every black person present in the US is merely by being alive, carrying out an act of violence against whites. And that Jews are the secret organisers behind the imagined mass murder of white people. These fantasies of anti-white violence are invoked, pretty obviously, to legitimise what fascists can tell themselves is pre-emptive and defensive violence on their party, murders such as the 2018 attack on the Tree of Life Synagogue in which 11 Jewish worshipers were killed.

Why, Rosenbaum asks, would anyone want to allow speech which is an incitement to murder? In reality, the First Amendment, is just one of several ways in which US law struggles to keep up with what every other affluent society has been doing for decades. No other country in the developed world permits this, any more than they tolerate the death penalty, or allow employers to go without paying maternity pay.

From there, Rosenbaum goes to other kinds of speech tolerated under the First Amendment, social media trolling, cyberbullying. Again, outside the US these are dealt with in the civil or criminal law as acts of “hate speech” (the US term) or “harassment” (as in the UK and Europe). Why does the US make itself the exception? “Other nations,” he writes, “managed to avoid the free speech madness”.

Rosenbaum responds to the argument that bad ideas die out when they are subjected to public discussion. To which, he asks, what happens if you are the individual who has to hear them, and you are in the middle of a riot?

From there, Rosenbaum pivots. He wants to be seen as a careful, balanced, person. Not an extremist, just someone worried about the excess of free speech. Therefore, there is a mandatory chapter insisting that as much as the right is a problem, there is also an issue of intolerant students. (He also has some pretty stomach-turning things to say about the rights of Palestinian to speak – or as Rosenbaum sees it, their obligation to be silent).

There is a lot wrong with this book. But it has its moments, too. Rosenbaum makes points which 90% of Americans don’t get to hear. That the First Amendment was only ever supposed to be a rule that bound governments, not individuals. That it is a right to speak, not an obligation to listen. That it does nothing to protect right-wing or far-right speakers, from the acts of people who will permit them to have a platform but are also intending to debate, to heckle, to subject them to slow handclapping.

That not every kind of spoken word is an idea.

That the much spoken-about free marketplace of ideas does not exist and could not meaningfully exist in a world dominated by the tech giants.

That the hearing of unpleasant words can cause physical harm, that stays in people’s bodies, that ruins their lives.

That the people who are on the receiving end of hate speech have a right to dignity and, at the very least, these two things need to be balanced.

Reading a book like this, as a socialist, or a European, or a practising lawyer, or someone who reads more than, I don’t know, one book every decade, you have to pinch yourself every two seconds and tell yourself: Let it go. You are not the audience for this book. It is not aimed at you. It is addressed at an imagined Middle American audience saturated with the assumptions of that media culture.

From that perspective this book is … ok. Ish. Kind of.

It doesn’t have the wide reading of a Jeremy Waldron, or the fizz of a P. E. Moskowitz, or the commitment of a Natasha Lennard or a Shane Burley or a Talia Lavin. But it’s a start.

More speech; less racism


Writing about the politics of the present is tricky. The minimum time it takes between having an idea for a book and seeing it in print is 18 months (usually it’s longer). Any writer asks themselves: if I write about X now (whatever X is), will people still be thinking about it in a year’s time? It must be strange for Gavan Titley; because since he wrote his book free speech has only grown in importance. No platform, cancel culture: its jargon has escaped the milieu of a few impassioned people arguing with one another on social media, and all over the mainstream press the same story repeats itself again and again: the left is closing down people’s opinions, the left is made up of bullies and petty despots…

Most of the leftists I know are doing their hardest to balance between two competing imperatives: 1. We want to see more speech, not less. We know that the banning instincts of the state and the political right have hardly gone away (think the blacklisting of trade unionists, or the way claims of anti-semitism have been used to cancel any discussion of Palestine). We also know that neo-liberalism constantly recreates itself from below, inviting public denunciations of people who breach this week’s social taboo (e.g. think of the way the police dished out fines to those accused of petty breaches of the Coronavirus regulations). On both those scores, any principled leftist is surely against the state, and against the cop that sits in all of our heads – communists and conservatives alike.

On the other hand, 2. We distrust intensely the way in which free speech has become an ideological weapon of the right. Think of the “trans wars”. A group of people want to exclude trans people from women’s toilets, domestic violence refuges, and feminist events. This notion of exclusion is overtly a means towards keeping trans women out of spaces they might otherwise go in. And yet, any time trans people respond (which they do sometimes with the utmost wit, and sometimes with grotesque fury) the answer comes back: “look how trans politics silences women”. In that way, a project of exclusion and insubordination repackages itself as the instrument of the weak protecting themselves against those who would silence them. And this is hardly an isolated example. Today’s ideological version of “Free speech” is to politics what Persil is to clothes: it repeatedly cleans the powerful, making them into the new oppressed and turning the vulnerable into their oppressors.

Now, as you balance these two imperatives (the need to support free speech while opposing its politicisation), it’s easy to lose your compass. If you only talk about the ideology, you can end up sounding as if you support censorship. If you’re not careful, you can become a censor.

But if you don’t talk about the ideological treatment of free speech then your view of politics will cause you to side with the people complaining loudest about being silenced, who today are the people in the United States (and in the UK) who want to see the statues of slave owners to stay up and not the ones calling for them to come down.

I am saying all of this to locate Gavan Titley’s book, which is one of the clearest accounts that has yet been published of the second of these dynamics – i.e. how free speech is being misused by those who have turned it into an ideology.

What Titley’s interested in rather is how racist speech, and in particular the racist speech that was used being between against Muslims during the height of the War on Terror shields itself from criticism then counter-attacks, through using the gambit that its opponents (the left and racial outsiders) are in favour of silencing others.

Just to take a single example, about 2/3 of the way through his book, Titley tells the story of how following the terrorist attacks in November 2015, the French state carried out more than three thousand raids on Muslims (six of whom were later investigated for possible terrorism offences). French politicians insisted that in carrying out these violent and punitive measures they were protecting the nation from Islam, which was incompatible with free speech. French President Hollande boated that “The Republic equals freedom of expression.” The French Prime Minister hinted at a return to France’s colonial mission: “France carries freedom of speech everywhere”.

Titley uses a single example to break through this miasma of ideological posturing. He recounts a raid which was described by one lawyer Ramzi Kassem, in which a Muslim man endured armed police busting unwarned into his home, and pointing automatic rifles at the faces of children. Finally, they found an image of a figure that would justify the raid: a picture on one wall of a man with a fist-length beard. Who was this Muslim, this terrorist? Was it Bin Laden? Tell us, the cops demanded. With as much dignity as he could summon, the man answered, “It’s Victor Hugo.”

I’m not going to summarise the whole of Titley’s book – it’s lively, compelling and principled, and anyone who cares about the topic should buy a copy – but only provide an outline.

In speaking about racism, Titley has in mind a kind of supposedly universal liberal politics which is about as radical as most employers’ HR departments. From the perspective of those who champion it, this liberalism insists that racism is a universal evil which can never be tolerated. But spinning against this idea is another idea which at times complement and at times contradicts it, that free speech is a universal good.

Titley writes about “Closure,” i.e. what happens when the forms of racism which we associate with the far right (i.e. the supposedly hipster racism of a Richard Spencer or a Milo Yiannopolous) clashes with the competing desire of liberals to prohibit such speech as racism or to allow it on free speech terms? His answer is that there is a recurring and shallow debate in which the latter priority repeatedly wins out over the former. Racism is a universal evil, a something to which no right-minded person can agree, until it becomes “opinion” at which point it is sanctified.

“Liberal free speech theory,” Titley writes, “assimilates speech to thought, a move which configures speech as ‘costless and priceless’, that is, as of intrinsic value as an expression of conscience, but of no causal impact as an action in the world.”

Titley is also interested in “Culture”, meaning the idea that it is possible to write off an entire category of people on the grounds that they are primitives who do not accept the superior moral virtue of “our” commitment to free speech.

Finally, he writes about “Capture”, in other words the way in which the far right has captured free speech discourse and uses it in a narrow but effective way (think of the attacks on British and US universities where students have closed down talks by far right speakers and have been threatened in response – with Trump even proposing to cut off federal funding to Berkeley if it wouldn’t platform his favourite speakers).

This summary doesn’t do justice to the nuance of Titley’s argument or the way on which, again and again, he comes up with a novel and memorable way of describing processes which are likely to be familiar to any reader: in speaking of the claimed “virtuous marginality” of the people who lead online debates, or the way that claims of being silenced are plainly about “generating publicity within the accelerated dynamics of the attention economy.”

Titley is also wise about No Platform, insisting that it is “a strategy, not a position. It recognises that protest cannot fully unsettle the generative dynamics of a free speech event, and can rarely puncture the claim of victimhood that de-platformed speakers are usually only too happy to parlay into political and media currency.” If I read this right, then what he’s saying is that students are wise to be open to the possibility of closing down speaking events when the speaker is actually a fascist, or close enough so that their proximity is widely accepted. But, that this move carries a tactical risk: that by over-extending No Platform, the student left can gift the right a moral victory. Being principled isn’t easy. It requires a moral intelligence and a willing to consider the possibility that you’re wrong.

“Free speech”, Titley concludes, has become a way of silencing disagreement. What then is the answer? Pretty clearly to me, it can only be a liberated ideal on the universal right of expression – even for those who aren’t racists – even for those who don’t have the backing of millionaire book publishers.

Titley isn’t really arguing that Free speech is racist – if he or anyone else really thought that, then the poet William Morris would have to be a racist for leading the campaign that established Trafalgar Square as London’s free speech zone, Rosa Luxemburg would have to be a racist when she spoke out against wartime censorship, and even James Baldwin – didn’t he debate William Buckley Jr, when he could have no-platformed him? There’s an awful lot of good politics you’d have to junk if you really thought the left was about closing down speech, rather than opening and democratising it.

The logic to which the book is pointing is rather our shared need to take over the printing presses and the internet, and to build models of direct conversation without the wretched media platforms through which we try our hardest to communicate.