Free Speech and the CMF

Despite a slight reticence when it comes to quoting Mill approvingly, I do have to admit that sometimes he does articulate a thought clearly and pithily, and sometimes it’s a thought in which all right-thinking people ought to see the merit.  Like, for example, this, from the opening paragraph of chapter III in On Liberty:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.

The general point ought to be clear: whatever your prima facie right to say what you want, it doesn’t mean there’re no limits on the circumstances in which it can be said.  Mill is concerned about excitable mobs, but the basic principle could, I think, be extended without too much difficulty: if your free speech causes severe inconvenience or distress or inconvenience to others, you ought to moderate it or take it elsewhere.  Having the freedom to make a point is, and ought to be, compatible with others’ freedom not to be bothered by your making it.

I think that that’s pretty reasonable: your liberty is one thing, but it’s not the only thing.  There’s the liberty of others to avoid you to consider, for one thing.  Pushing things a bit further, we might be inclined to argue that liberty is a good because of its relationship with, and contribution to securing, the general welfare – but that there’re other things that contribute to that, too, which therefore ought also to be considered good things worth protecting.  Basic civility might be one such good.  Mill doesn’t make much of that, but there’s no reason why we couldn’t say that that’s a good worth preserving – and why we couldn’t fit that into a modified Millianism, should we so desire.  On Liberty isn’t Holy Writ: its good ideas might be extendable.

Keep that in the back of your mind for a moment.

Many readers will have seen the video posted a few weeks ago by Sunny Hundal in which a woman berates a group of pro-life protesters outside an abortion clinic.  The background detail is that there is reportedly an increasing prevalence in the UK of pro-life protesters congregating outside such clinics.  Sometimes those protests take the form of prayer vigils; sometimes – as in the video – they’re more direct, with posters of babies and foetuses, sometimes quite graphic.  Occasionally there’s barracking; I think that this is more common in the US, but I suspect that the trend may appear here soon enough, not least because these things do tend to escalate.  Yvette Cooper has apparently mulled the idea of buffer-zones around abortion clinics, within which pro-life protesters would not be allowed to protest.

Writing on the CMF blog, Cheryl Chin is not happy about Cooper’s idea; she thinks that “It would appear that once again, liberties are under threat of being curtailed by the proponents of the pro-abortion brigade”.*

One doesn’t really have to look all that hard to get a sense of what liberties she has in mind: her grammatically-perplexing title is “Buffer Zones – A Form of Subverting Freedom of Speech and Real Choice”.  And towards the end of the post she makes clear that she

wait[s] in hope – let the real exchange of ideas in the public square begin and long may it continue. After all, our great civilisation was founded in part by high quality public discourse. It would be a shame to reject that well held tradition.

Now, if protests outside clinics were about free public discourse, Chin might have the beginnings of the glimmer of a point here.  But, of course, they aren’t – and they aren’t for a range of reasons.  The first is that there is plenty of free exchange of ideas about abortion already; but it doesn’t have to take place outside a clinic – and it probably shouldn’t.  There is a time and a place for all things – “a time to keep silence, and a time to speak”, as (appropriately enough) Ecclesiastes puts it.

And, of course, it’s disingenuous to present it as a free exchange of ideas in the first place.  These protests are designed to brow-beat, not to engage in nuanced discussion.  If people want nuanced discussion of the rights and wrongs of abortion, they wouldn’t go to an abortion clinic for it.

There is another reason why there’s no marketplace of ideas outside an abortion clinic.  You simply don’t know why people are going in there.  Even if you think that all abortion is bad or wrong all else being equal, you don’t know that all else is equal; and the pavement outside a clinic is not the place to establish that, or assess the odds.  Sometimes, a woman’s life or welfare is directly threatened by pregnancy.  Sometimes it’s indirectly threatened.  Some reasons for wanting an abortion – let’s allow for the sake of the argument – might be better or worse than others.  But protesters outside don’t know that.  And so it seems uncivil at the very best to go galumphing into a stranger’s life to try to persuade her not to do something to which she has every legal right and for which she might have pretty sound reasons.

It’s also noteworthy that Chin admits that

Those who are firmly settled on their decision to abort will most likely walk past the protesters without much thought and they have every right to, without being hindered (as upheld by the public order act 1986). It is those who are undecided or who have reservations who maybe open to suggestion and persuasion. If so, should they not have the right and the opportunity to hear both sides to make an informed decision?

I frequently have to warn my students about rhetorical questions: there’s a danger that someone’ll answer them, and not how they expect.  So here’s my answer: of course they should have that right.  And they do have it.  But that’s beside the point, because in this case it’s not a matter of having the right and opportunity to hear both sides.  Having pro-life protesters outside the clinic isn’t affording or guaranteeing that right: it’s turning a right into an inevitability.  Chin is doing great disservice to the language of rights; you aren’t protecting a person’s rights by yelling at her.

Nor is it a matter of hearing both sides in any case – not at that point.  For one thing, it’s unlikely that the woman would not have considered ways to keep the pregnancy.  I doubt that there’s many decisions to abort that are taken on the basis of a coin-toss, or a sudden desire.  At the very least, there’ll have been a moment of, “I’m pregnant.  Ah.  That’s inconvenient.  What now?”.  And keeping the pregnancy going is the default position, because you don’t have to do anything to do that.

But what’s really striking about this is that she admits that those who’ve made up their minds about an abortion will probably be those best placed to ignore the protests.  This means that they must actually be aimed at those who are more likely to be scared, or ashamed, or upset, or something like that.  In other words, the most vulnerable.


Continuing with the information theme, Chin also plays the “it’s-all-about-informed-consent” card:

If these women consent to having an abortion under these circumstances, is consent truly meaningful even if it is not informed?

Yes.  Yes it is.  If consent is important, it is so presumably because it stops others imposing choices on you that you would not otherwise have made.  It’s about protecting your control over your own body.  A woman who decides to go for an abortion is – with the possible exception of a few cases of coercion – exercising control over her own body.  If she is not – if the procedure is coerced, perhaps by some member of her family, then informed consent isn’t going to solve that problem.  Informed consent is neither here nor there when deciding to abort.  (It might matter when choosing between possible procedures, but that’s a different matter.  I somehow doubt that Chin’s protesters would bring that to their debate.)

She’s not above legal fallacies, either:

the Massachusetts U.S. Supreme Court in a unanimous decision threw out a law that created a 35 foot buffer zone which would prevent pro-life campaigners from approaching and talking to women considering an abortion or offering their counselling services. The US Supreme court wrote that ‘it is no accident that public streets and sidewalks have developed as venues for the exchange of ideas…In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail …,” this aspect of traditional public fora is a virtue, not a vice.

If the U.S. Massachusetts Supreme Court can recognise this, why is the Shadow Home Secretary unable to?

One possibility is that the SC made a mistake – moral or legal – about the “marketplace of ideas”; but whatever one thinks of this, one must – surely? – recognise that the US legal system is not the UK’s legal system, and the American legal culture is not the UK’s legal culture.

But, finally, let’s put all those fallacies to one side, and agree that this is a case of free speech being curtailed.  Well?

It’s a feature of social existence that one cannot do everything one wants whenever and wherever one wants to do it.  To some extent, there is a trade-off to be had between liberty and civil existence.  This is what I was on about with the Mill bit at the beginning of this post.  So even if free speech is limited by a buffer-zone (oh, don’t laugh: we’re being charitable to Chin!), it doesn’t follow that it’s an indefensible limit.

Laws stipulating that I must drive on the left limit my freedom, too.  Sometimes, there are reasons to limit freedom.  If guaranteeing the freedom of women to access a service to which the law gives them a right means that some people can’t shout at them close to the provider of that service… well, is that really the end of the world?



*An obvious point here is that I don’t think the number of people who’re pro-abortion is enough for a platoon, let alone a brigade: I can’t think of anyone who thinks that abortions are a jolly good thing that ought to be encouraged, which is what “pro” would seem to imply.  (Lots of people are pro the right to abort, and see no particular moral problem with the choice per se – but that fits nicely alongside preferring a world in which there’re nonetheless fewer abortions all told, perhaps because there’s better contraception, better sex education, better support for women who do have children in less-than-ideal circumstances, and all the rest of it; and someone who would prefer that there be less of something can hardly be said to be pro it.)