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Tuesday, 21 August 2012

Freedom of speech: 'freedom from', 'freedom to' and protection of the individual

A couple of high profile incidences of Twitter and Facebook nastiness and it certainly feels like there's a diverse chorus questioning whether we shouldn't turn our backs on the principle of free speech and have the state regulate what we can and can't say.

If you've had your commitment to free speech challenged after seeing how low some can go when abusing the power of online communication then you're not the only one.

Myself an avid user of forums and chat rooms in my childhood (pre-dating the WWW) all the way through to the mass market tools we have now I've seen my fair share of (and perhaps caused the odd) bitter online feud.

People say some pretty foolish shit when they [think they] are anonymous.  If you ever tried CB radio in the 80's you'll know where I'm coming from... (Has the situation on the airwaves improved in the last twenty years?)

Most right-minded folk don't mean; well not literally, at least; what they say or type in anger.  They mean to hurt (psychologically), but they don't mean to enact the physical threat.

Someone once told me they would come to my house and kill me in my sleep because they disagreed with something I'd posted on a forum.

I don't remember the details but I remember I slept soundly that night because I knew deep down even if this fool did know where I lived, he (or she) was unlikely to resort to murder to settle a tech feud.

Besides, I'd just moved from the Radford area of Nottingham, one of the roughest inner-city areas I've ever encountered.  Two murders in two years within half a mile of my house, three of my four house mates beaten and a car shot up right outside my front door.

I managed to keep the risk of a few threatening posts in perspective.

The words of Anthony Mayfield, author of Me and My Web Shadow, when he talked at Digital Surrey two years ago are still fresh in my mind: we all need to grow a thicker skin.

But a tiny minority do carry out their threats, and this is where society ties itself in knots trying to distinguish the warning signs of a disturbed personality from the rantings of the angry, drunk, tired, bored, or deliberately provocative.

But that's not to condone or justify what the fools and bullies say or do with Twitter and Facebook and an army of followers amplified by the amalgamated hysteria from both the Twitterati and Old Media .

There is real harm and there is a compelling social argument for regulation of online content.

It stems (part-educated philosopher alert) I believe from Immanuel Kant, who attempted to define freedom in a political sense as distinct from concepts of free will and impulse.

Isaiah Berlin takes Kant's preliminary work and introduces two concepts: freedom from and freedom to.

Importantly, Berlin suggests that the two concepts can in some situations be mutually incompatible. A freedom to can impinge on others' rights to a freedom from, which is precisely what we have here; one person's freedom of speech can affect another's ability to enjoy social media free from undue harassment.

A contributor to the Pod Delusion (apologies, I forget who) put it more succinctly: your freedom to piss in my stairwell affects my freedom to egress my property (without holding my nose).

But freedom to speak is a distinct and separate concept to freedom to act; although, and much to my exasperation, European law embodies free speech as freedom of expression, which very much opens itself to challenge centred around being free to piss in my stairwell.


I believe in free speech more than I believe in free expression.

The reason free speech is more important than freedom of expression is because speech (precisely: spoken, written, signing and any other means of communication) is fundamental to achieving consensus, and consensus is fundamental to democracy.

If we can't talk openly about a subject we can't reach a reflective consensus on that subject.

And, crucially, there are no clear boundaries to separate "good" free speech from "bad" free speech, e.g. how do we go about preventing personal abuse when, in a representative democracy, we elect individuals to represent our views?

Elected representatives are, legitimately, subject to debate.  We need to be free to talk about our views of these representatives, however hurtful it may be to the individuals involved, to achieve consensus on who best deserves to be elected.

On one hand, by allowing personal and hurtful public comments about our politicians, we deny our politicians a freedom from personal attack which can at times border on harassment.  Many will be put-off politics because of this failure to protect our politicians from... and this may itself be damaging to democracy.

But on the other we see bad but determined governors prevented from taking office solely because open debate allows legitimate concerns to be raised with the electorate.

But what though of personal attacks on celebrities?  Surely they don't deserve a barrage of abuse just because they happen to be good at acting, singing or football?

I have fairly uncompromising views in this area.  I believe celebrities should be treated like politicians; fame is merely an informal extension of power in a democracy.

Society gives celebrities a platform of influence which is, in many cases, at least equal to the influence of politicians.  Politicians exert influence through law; celebrities through brand promotion, advertising, publicity stunts - and, in many cases, political speech.

Celebrities occupy a position of trust that can be exploited to influence what we eat, drink, wear; what we think about contemporary events and even who we vote for; in exchange for this trust their position should rightly be open to debate as a safeguard to prevent abuse of this trust.

And now we have a compelling social argument against regulation of speech.  If we regulate what people say and do online there's a strong chance we might - accidentally or by design - protect those in a position of trust such that they can abuse their position of trust unchallenged.


At least without developing a highly nuanced definition of what is and what is not acceptable to say, and this in itself introduces massive challenges.

Who would enforce these highly nuanced rules, what resources would be needed to police online content - in a way that doesn't affect democracy - and what safeguards would be necessary to prevent the arbiters of what we can and cannot say abusing their position to their own ends?

Our criminal justice system could easily be overwhelmed if every social media user with a gripe was encouraged to report it to police.

Plus, I don't for a minute believe any system exists that is capable of preventing all personal abuse without skewing unduly the wider democratic process.  Was the MP subject to unacceptable personal abuse or was a citizen merely, albeit rather cack-handedly, pointing out a legitimate worry about the MP's fitness to occupy his or her position?

We must look not to the state but to society to drive good behaviour and regulate social norms in how we behave (online and offline), just as we have for millennia.  We learn what is and what is not socially acceptable from those we interact with.

We are social animals and we long to belong; we already have it in our power to punish bullies and trolls through rebuke, rejection and disdain, but instead in the current hysteria we give them a platform, amplifying their message and their audience.  Look what X said! Outrageous!! Call the police!!!

Also, although fierce subject of debate, I would actively encourage any platform, including Facebook, Twitter or any other tool, to decide themselves whether and how to police what their users say and do online.

So long as other platforms exist, this in my view is entirely democratic.  People who wish to engage in online discourse free from harassment will choose to use certain well-policed platforms over others.  People who wish to engage in raw behaviour will be more limited in their choice but nevertheless have a voice.

I would hope some platforms remain almost completely open and a majority to censor only the worst offences, but ultimately platforms are driven by a desire to increase their audience share - the audience will decide which platforms they wish to inhabit and this is inherently democratic.

If platforms - not states - decide what is and is not acceptable there is less scope for those in power to warp the rules to suit their own agenda.  Whilst the board of Facebook or Twitter may themselves abuse their power, users are ultimately free to migrate to other platforms in a way they are not always free to emigrate to avoid the influence of the state.

The audience is the ultimate judge of conduct in other ways too.  As well as audience share influencing the editorial policies of certain tools, uniquely in the last six hundred years we once again use a two-way communication tool (the internet) as a predominant method of information exchange.

Before the advent of the Gutenberg press and mass publication we relied on public address and word-of-mouth to convey instructions and moral codes.  The person delivering the address or passing-on a message was far more exposed to the mood of the recipient than any author of printed material.

The printing press isolated the author from his or her audience, the internet has reunified them.

I'm not oblivious to serious cases of online bullying and harassment, but the the law must be reserved to tackle the most serious infringements; cases where there is clear abusive behaviour that impinges deeply into an individual's rights to enjoy life with a freedom from.. Cases where clear laws are possible which do not unduly impact on democratic discourse or afford undue protection to those occupying a position of trust.

The law is there to guard against extremes of behaviour - for everything else we look to society to drive good behaviour.


1 comment:

  1. IMHO this is your best SROC post yet James.

    Two sentences really stand out:

    "The printing press isolated the author from his or her audience, the internet has reunified them."

    " I believe celebrities should be treated like politicians; fame is merely an informal extension of power in a democracy."

    Juvenal http://en.wikipedia.org/wiki/Bread_and_circuses would be proud of you for remembering the enduring power of the celebrity Circus!



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