Adam Tomkins: Free speech matters — even when it’s offensive

Most current controversies about free speech would not be controversies at all if we remembered one of the basic truths about free speech. None of us has the right not to be offended by what each other says. Just because someone else’s speech upsets you – just because you find it offensive – does not mean they have no right to say it.

The answer to speech you find offensive is not to silence it, to regulate or criminalise it. The answer to offensive speech is for you to speak out, to respond, to answer back. What is needed, in other words, is more speech, not less.

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This is not a militant approach to free speech – I am not a free speech absolutist, not by any means. Enjoying the right the freedom of expression carries risks as well as responsibilities.

None of us has the right to say anything we like with impunity. If we use our speech to threaten or to abuse, we cause harms that the law will not and should not tolerate. But there is the world of difference between threatening someone and making them feel uncomfortable, upset or offended.

It is this difference we are in danger of losing sight of. Feminists defending women’s rights may well upset trans-activists who are seeking to extend the benefit of those rights to others. But such self-styled “radical feminists” are not acting in a threatening way and, until and unless they do, the criminal law should leave them well alone. Likewise the academic who queries the University of Edinburgh’s decision to remove David Hume’s name from one of its buildings. His comments pose no threat to anyone, no matter how offended you may be by Hume’s 18th-century views.

It is the same again with the SNP councillor in Glasgow who sent an ill-judged tweet about hating the UK. Politicians who stir up hatred deserve to be condemned in the court of public opinion, but if it is true (as has been reported) that Police Scotland are investigating this tweet with a view to bringing the matter to a court of law, this is preposterous.

Rhiannon Spear

I myself was scornful on Twitter about Rhiannon Spear’s tweet, but as a lawyer I would defend her right to express herself in that way, if that’s what she really wants to do. All of us, even law professors, have the right to make fools of ourselves on social media platforms, without the police getting involved.

Free speech can make us uncomfortable, irritated, even outraged. But that is its very point. The hallmark of a free society is where, instead of trying to silence our opponents, we engage with them. This is in our interests as individuals just as much as it is in society’s interests as a whole. Our own arguments will sharpen and improve if we have to defend them against critics who disagree. Always, we will learn more from folk whose views we do not share than from fellow-travellers who only echo what we already think. And society will benefit – and grow – as a result. Progress would be impossible if we could not argue for it.

Speech should fall foul of the law only when it does not recognise that others have the right to disagree – and to say that they disagree. Speech that seeks to cut people out of the conversation altogether. Such speech is intolerable. But that is setting the bar very high.

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Let’s not lower it. Let’s not move to a society where we run to the police every time we read something we find offensive. Let’s not become a country so censorious that we tolerate only received opinions, majority views, or points of view that everyone finds unchallenging.

It was an English judge who said in a case 20 years ago that the freedom to speak only inoffensively is not worth having. He was right. Opinions can unsettle. They can shock. They can challenge. And they are all the more worth hearing for that.

At the end of the last session of the Scottish Parliament, what is now the Hate Crime and Public Order (Scotland) Act was passed. Much amended during its passage through Holyrood, as enacted that legislation got the law of free speech right. It does not criminalise offensive speech, but it does make it an offence to use threatening or abusive words or behaviour with the intention of stirring up hatred.

In passing the Hate Crime Act, MSPs of all parties were mindful that the police would need careful and skilled training to ensure that they could distinguish easily the very small number of offences that may be committed under the Act from the no doubt much larger number of bogus complaints made under it.

The Hate Crime Act is not designed to be censorious. Indeed, the very opposite is true: it is designed to protect speech that you may find offensive and to criminalise speech only where it is threatening or abusive. This does not need to be complex. And, if we hold dear to the values on which free speech is based, it will not be.

Next time you read something you are offended by, don’t call the police or complain to the authorities that you feel unsafe. Argue back, as robustly as you can. That’s how free speech works and, without it, we would be lost.

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