Challenging Speech

This piece is something of a sequel to what was a preceding post – “Dangerous Speech” – and which is now a subsequent one, and addresses some of the issues surrounding freedom of expression including the importance of recognising that the value of freedom of expression lies in its ability to challenge.

Freedom of speech involves the physical act of communicating thoughts and ideas to others.

International instruments, written constitutions and Bills of Rights protect free speech as one of the fundamental rights against State oppression. Freedom of expression is guaranteed by Article 19 of the Universal Declaration of Human Rights. Everyone has the right to freedom of opinion and expression, including the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers. There is a similar right in the International Covenant on Civil and Political Rights and in the European Convention on Human Rights. These articulations of the right are wider than mere speech and recognize the importance of an individual’s thoughts and opinions that underlie expression.

Section 14 of the New Zealand Bill of Rights Act 1990 protects freedom of expression. It guarantees the freedom of expression. It recognizes that there are two aspects to the freedom of expression. One is what could be called the outward flow – the expression of the idea or opinion. The other is the inward flow – the reception of what is expressed. The freedom is not limited to the imparting information. As important is the freedom to seek and receive it.

This is not a comfortable right. It is not meant to be. It is a challenging freedom. It is a freedom that allows challenge.

Free speech does not only allow for the expression of inoffensive, comfortable, uncontentious or unchallenging opinions. Its strength and importance lies in the diversity and contentiousness that it allows.

 One’s commitment to freedom of expression lies in the willingness to allow or tolerate information which is contentious, challenging, radical or even revolutionary. It must be recognized as freedom for the thought we hate – an expression used by Justice Oliver Wendell Holmes in the case of US v Schwimmer. Indeed the whole history of the development of freedom of expression lies in the struggle for the free expression of political or religious ideas which challenged the establishment and suggested a different and sometimes bloody alternative.

Freedom of expression has been justified with three main arguments that have developed over time.

One theory is its role in the discovery of truth – a justification advanced by Milton in Areopagitica and summarised by John Stuart Mill in his essay On Liberty.

“But 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.”

There are shortcomings with this justification. The first is the implicit assumption that freedom of expression necessarily leads to the discovery of truth. The second lies in our current understanding of truth and reality in a post truth world.

The second justification lies in the recognition of freedom of expression as an integral part of our right to self determination and self-fulfilment as an individual. Restrictions on what we say, write or express ourselves inhibits our personality, hence our growth and self-knowledge.

Current attitudes to freedom of expression and especially to ideas and opinions that challenge those of the listener or recipient lies within the collectivization of thought and expression usually exemplified through what is referred to as identity politics. This collectivization of thought – the automatic subsuming of individuals into a group based on similar characteristics – has as its most extreme example statements like “we are them”, “I speak for all (insert group or identity” and “they are us” – a form of mass identity and collectivisation of opinion that does not allow for nor may it tolerate dissent. On the other hand, of course, freedom of expression is as much for the benefit of the collective as it is for the individual.

The other side of collectivization of thought and expression is the individualization of opinion – ideas and the expression thereof are an aspect of individual identity – a recognition of the uniqueness of every person as distinct from some collectivist groupthink or mindless uncritical acceptance of an asserted truth. Indeed collectivization of thought and expression – the whole nature of identity politics where individuals are subsumed into some amorphous mass – is contrary to the much vaunted value of diversity in society.

These days, diversity seems to be focused mainly upon the importance of cultural or racial groups within society – a challenge to the groupthink that underlies the homogenous group formed by assimilation. Yet in its most atomized and microcosmic sense diversity lies in the form of the individual possessed of individual values, thoughts and a right to express them, no matter how challenging to the groupthink they might be.

Challenging speech should be embraced as a fundamental aspect of individual – not group – identity. To interfere with the freedom of expression dooms us to the collectivist mindset which is intolerable in a free and open society. It may be that the ideas and their expression range from the banal to the radical and revolutionary. What is in fact more important than the ideas expressed is the fact that they are expressed and that individuals have a right to express them.

The third justification lies within Western concepts of democracy and self-government. Political speech is accorded a high value. The free flow of information and ideas informs political debate. Freedom of expression protects the rights of all citizens to participate in a democracy and the Internet has enhanced that participatory ability allowing everyone to have a say despite modern tendencies to argue “alternative facts” and “fake news”. Freedom of expression can act as a brake on the abuse of power by public officials. It can expose errors made by government and shortcomings in the administration of justice.

Challenging speech may be contentious. It may be argumentative. It may be, at the same time, banal. It may even be insulting or grossly offensive. But if freedom of expression is to have any value it must ensure that the right to express insulting or grossly offensive views is protected. As long as those expressions do not incite hostility or physical violence, such forms of challenging speech must be protected.

Within the context of the cotton wool society within which we live this form of challenging or uncomfortable expression may be described in a number of ways depending upon the perspective of the listener. One such classification may be that of “hate speech” – a difficult term and one which I have rejected in an earlier piece, and one which tells us more about what the listener hates than the reality that the speech may engender hatred, ill will or ill feeling against a particular person or group. True “hate” speech or dangerous speech as I have described it elsewhere advocates physical harm against an individual or group.

Alternatively, instead of taking up the challenge of uncomfortable or challenging speech, and engaging in a debate, the listener refuses to tolerate what has been said and attempts to shut it down by dismissing or describing the idea as racist, offensive or inappropriate – terms that I consider to be veto statements, especially the third which suggests a value judgement but fails to identify what particular value is in issue. Although the use of a veto statement is in itself an aspect of free speech, rather I am of the view that challenging speech should be met with opposing, rational argument. The use of veto statements seems to demonstrate either an unwillingness to attempt such level of engagement or a lack of intellectual capacity to do so. Nevertheless, freedom of expression must allow for this clog on discourse.

One of the joys of living in a liberal democracy is to be able to hear, read and consider different stripes of opinion – and the Internet enhances those opportunities. Why should one do this? Because the only way that one can form ones own opinions, values or beliefs is to consider the views of others – assess them, test them, consider them and from time to time challenge them. Indeed, the ability to engage in a challenging discourse is a time honoured way in which to test ideas. It goes back to the days of Socrates and beyond.

Those with whom I deal, and who wish to advance a particular position, find themselves engaged in a Socratic dialogue. This causes them to consider their position and allows me to test my own first impressions of their arguments. I have often shifted my position 180 degrees after a proposition has been tested in the furnace of vigorous discussion. I also like to challenge my own thinking on certain issues. In this regard I find the views expressed by opinion writers to be most helpful – even those with whom I usually disagree like opinion writers Mike Hosking, Leighton Smith Simon Wilson and Lizzie Marvelly and opinion blogs such as The Standard. But it would be a disservice to them and to myself to refuse to read their columns simply because they wrote them. More important than the person expressing the idea or opinion is the idea or opinion itself. There have been occasions, not often admittedly, when I have changed my position on an issue as a result of what I have read. Had I not allowed myself to be challenged, I would not have had this important opportunity. Freedom of expression enables our ideas, beliefs, prejudices and indeed values to be challenged. There is nothing comfortable about this. But it is certainly healthier than occupying a bubble of received and agreeable wisdom. In such an environment freedom of expression means nothing.