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.

Classy.

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.)

  • Anonymous

    Thanks for this post Iain. I think it introduces very clearly an important case study. One that should bother anyone trying to maintain or formulate clear principles on the nature and limits of freedom of speech.

    I am inclined to bite the bullet in cases such as this, and admit that whilst instances like this are regrettable, they are only so in the way that they remind us that there are those that can’t exercise their rights responsibly and with compassion and humanity. Who not only want to exercise their right to freedom of speech, but test it to the very limits of what it can tolerate. Nevertheless I think toleration is the appropriate action. I can’t provide a compelling thesis, but I can give some rudimentary thoughts.

    I think the best way of introducing my concerns and immediate thoughts on your blog is through this particular paragraph, which I think was a little unfair.

    “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.”

    I’m not sure why you place so much importance on either the amount of speech being had elsewhere on a topic, or on the quality and the degree of nuance to a speech, when you decide to include or exclude it from the category of “free public discourse”. To me these don’t seem particularly relevant. You then suggest a free exchange of ideas necessarily precludes brow-beating. I don’t think it does, and will explain below. But I think it is worse mentioning in passing that I think your analysis of this case is in some ways indicative of where free speech debates are going – ever more myopic and fixated on managing the particularities of an incident, rather than assessing the broader sweeping consequences of the principles we enact when we try to resolve them.

    Whilst analysing the protest as a stand alone event may lead to the conclusion that brow beating doesn’t involve any kind of free exchange, this isn’t the case. The exchange can be much more indirect and go beyond the particular example at hand. Simply by sharing the video of the protests, writing a blog about, and by my responding to it, both you and I have been complicit in that marketplace. I think Mill was quite perceptive of the more subtle ways in which freedom of speech can be valuable and improve the lot of mankind, and I think this may be one such instance.

    So I disagree there is a lack of exchange. But more importantly, whilst at a more global level there has to be an exchange of ideas to generate the value that Mill and others find in free speech, it does not mean there must be a direct exchange, in the form of debate, at every conflict. Merely conveying an idea or conviction – even in the form of brow-beating – can work towards the same ends as a debate or nuanced discussion. By way of an example, and to raise another of my concerns, it is probably worth asking whether you would be more tolerant of brow-beating examples if it was exercised for a moral position you considered more noble: protests against austerity cuts on the roads MPs walk down to Westminster, or similarly for those CEOs and employees working for industries producing weapons instrumental to committing genocide. Brow beating’s value seems more obvious here than with a pro-life protest because we are more immediately receptive to the important way in which it conveys to the perceived wrong doer our conviction in the severity of the wrong doing. In such instances nuance or debate isn’t what we are concerned about. Rather, we wish to make clear to those we believe are committing awful acts that they are indeed as awful as we take them to be, and that they should recognise this. I am intuitively more comfortable about strong displays of expression in these kinds of examples than I am of the example of the abortion clinic. If I am willing to accede to this act of brow-beating, can I be sure that my intolerance to pro-life protests isn’t just one that stems from a disagreement with their convictions, rather than how they put them across? This is a concern of mine. I anticipate your response to be that it is in fact the enormity of the act of abortion and the psychological trauma the mother suffers that I am recognising in my intuitive impulse to try and protect her from brow-beating, not a distinction in my view on what is being protested.

    It then seems to me then that the focal question becomes: should we limit the manner and/or place and/or time of an expression because it cause inescapable and deep upset to those who receive it? I believe you phrase it:

    “if your free speech causes severe inconvenience or distress or inconvenience[sic] 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.”

    Though this makes for a very sound ethical principle, I would be concerned about enacting a principle of this kind as a policy. Terms like distress (similarly upset and perhaps inconvenience)** are often gratuitously exploited by those who wish more to be upset enough than not upset at all. I can only imagine that the problems that groups such as FIRE face (http://www.thefire.org/category/cases/free-speech/) – where campuses in the U.S. set up ‘free speech zones’ (the inverse of the buffer zone); or campaigns like No More Page 3 – which claim that children are dealt unavoidable distress by the careless placement of a littered newspaper; or the policies of New Labour towards the kinds of protesting I referenced above (http://en.wikipedia.org/wiki/Taking_Liberties_%28film%29#Right_to_Protest); would all find far more traction if a modification to our understanding of freedom of speech is made in the way you suggest. Perhaps an example of this concern enacted would be France’s recent success in upholding the banning of the Burka in the European Courts.

    I suppose I am making the somewhat empirical plea that the claim you make to begin with – that this principle could bring together in an act of addition what are sometimes conflicting goods (those produced by FoS as we understand it, and basic civility) – would in fact only undermine freedom of speech to such a degree as to make the sum altogether far worse off than it would be otherwise. It is to this broader perspective that I think we should look – if indeed we take solely a consequentialist position – than to ask whether we can nip and tuck free speech in response to particular difficult cases.

    These are just my initial and rather careless thoughts on some of it. I hope I haven’t used up too much of your time already, and I understand if you don’t wish to reply for that reason.

    (**I think there is probably a discussion and distinction to be made between harassment laws and this new proposal to curtail FoS)

    • There’s a lot here, so I’ll concentrate on the browbeating aspect. You impute a number of claims to me; but I don’t think I’d actually make them.

      There probably are some parallels between anti-abortion protests and protests against austerity or weapons sales; but there’s likely to be a number of differences, too. For example, an MP’s job involves public engagement, and – to an extent – this means that it’s part of the gig to have members of the public shouting the odds at them. On the other hand, I think that there are probably limits to this: there’s quite possibly a difference between approaching an MP during “office hours” on College Green, and at other times when he isn’t wearing his professional hat. If I see my MP in Tesco with his family on a Saturday, for example, I have the same entitlement to talk to him, civilly, as to anyone else. But he also has the right to tell me that he’s got other things on his plate, and now is not the time. In the same sort of way, a student who approaches me in Tesco to complain about the way I teach doesn’t have a right to an answer there and then. By contrast, there are no times at all when either women seeking abortions, or the medics who provide them, are obliged to be publicly accountable as part of the job.

      Things are perhaps a little more complicated when it comes to the arms dealer – but here, his role is much more like the abortion provider than the woman seeking one. One obvious difference is that he’s part of a commercial organisation, rather than a healthcare provider; but let’s put that to one side just for the sake of the argument. So it might be that, after all, it’s permissible to protest in this case. And it might be that – notwithstanding the argument above – directing protests at medics is vaguely similar. But there’s still a big difference, which has to do with the people nearby. That is: it’s hard to see how protests outside abortion clinics can fail to impact on the women using them as “collateral”; and that must, I’d’ve thought, make a difference.

      Which brings us to the big difference between the MP, the arms-dealer, and the people at a clinic: it’s one of vulnerability. People accessing abortion services aren’t all vulnerable, but some are; and there is likely to be a big disparity between people accessing and providing such services and MPs and arms traders in terms of vulnerability – even if it’s only on that particular morning. That seems to make a moral difference.

      And it might just be that, when it comes to the crunch, there’s enough of a parallel to mean not that it’s OK to harangue people on their way to the abortion clinic, but that it’s not OK to harangue people on the street on their way to work either. The permissibility of protest doesn’t mean that it’s permissible all the time in all places.

      As for the exchange of ideas point: you’re right that you and I are both contributing to that right now… and that’s the whole point. Telling someone that they can’t say something in a particular place because of clearly articulable and – presumably – defensible (or at least comprehensible) moral concerns is light-years away from saying that they can’t say it at all for obscure or no moral reason at all.

      That’s a long way from what goes on at these protests. It’s genuinely hard to see how anyone opposed to abortion would have difficulty articulating their claims, be it through academic journals, newspaper columns, street protests in other places, and goodness knows what else.

      Does a free exchange of ideas really not preclude brow-beating? That seems to take a very narrow view of liberty – one that sacrifices the freedom of people not to be pestered on the altar of those who would pester. Sometimes that might be a sacrifice worth making – but not always, and not worth making in every conceivable way; and a lot does seem to me to depend on the number, identity, and position of those being harangued, and the number, identity, and position of those doing the haranguing. Protests like the ones Chin has in mind really aren’t about the free exchange of ideas at all.

  • 572ec13f

    As a thought-experiment to test the actual support of a universalised version of Chin’s proposed principle, any pro-life advocate may ponder the example of large, openly hostile satanistic mobs assembling outside churches around mass times every sunday, heckling churchgoers in that charming foaming-around-the mouth kind of way we know so well from the abortion clinic protests. Alternatively, have them display the oily charm and words of dripping (false) honey, doing their best to seduce (intending) mass goers into all kinds of earthly pleasures, waving plackards about the ridiculousness of any idea of an “afterlife” or “salvation” and promoting the alternative of a life of porn, drinks, sloth and what have you with graphic illustrative displays. “C’mon and have a ball while you can!” – that kind of thing. Alternative version: pro-life counseling centres for young women being hoarded by pro-choice activists, doing their best to lure the poor innocent one’s off to nasty contraception counselling, giving out free condoms, or abortion clinic flyers. Scenarios of this type, I think most people get the picture. So, if you’re of pro life ethical opinions on contraception, abortion and so on, and agree that, indeed, such gatherings are mere expressions of free speech and no action to restrict them should be allowed, then they subscribe to Chin’s moral or political philosophical premise. If they don’t agree, they have to confess that there are valid pragmatic limits to our right to free speech, and the discussion may proceed from there. As this is about politics pertaining to abortion and not an issue of the morality of abortion, whatever view one holds on that subject is, of course, irrelevant – not least as all sides hold as strongly entertained positions in that area.

    Christian Munthe (signed in with Twitter and became anonymous for some reason)

    • People seem to be getting made anonymous. No idea why. Ho hum.