22 Feb 'free speech in europe'?

(originally posted 22 Feb. reposted here)

Freedom of speech was in the news again this week, in this instance an example of how it is sometimes restricted in Europe, as David Irving was jailed in Austria charged on Holocaust Denial charges.

http://www.guardian.co.uk/farright/story/0,,1714403,00.html

and of course the other week Abu Hamza was jailed on charges relating to incitement to racial hatred.

http://www.guardian.co.uk/terrorism/story/0,,1704625,00.html

Given the recent protestations about freedom of speech, it might be asked if this is an example of European hypocrisy,since attacks on Muslim tradition are defended, whereas attacks on European/Jewish history are prosecuted?

The answer is no, but some people might at first think otherwise, because 'freedom of expression' is not really as it sounds, at least not at the moment.

Despite being much touted recently, in European countries there is most definately not absolute freedom of speech. Just as we are free in our actions only as long as we don't harm others, similarly we are only free in our words in similar way. So there are actually two questions involved. The first, which is not what I want to address at the moment, is whether any restriction on freedom of expression is ultimately justified. I am inclined to the view that while it is abhorrent to think that preachers of hatred and lies should be allowed spew their vitriol unchecked,there are strong philosophical arguments that any form of censorship is indefensible, even on practical grounds. Having certain things that cannot be said assumes that there is a general agreement about these things - and (more importantly) yields a power of suppression to government which can always be seen as the thin end of the wedge.

However there is also the fact that in a society absolute freedom is actually impossible. To be free to do anything does not broaden our possibilities, but rather limits them, since it exposes the individual to the ambitions and cruelties of others, and makes impossible the interdependent structures which provide more than could ever be achieved by even the strongest on their own.
To be free to attain the things that matter, to make those things possible, requires giving up some freedoms which are less important. To be free to accumulate wealth I must give up the freedom to try and take that wealth from others, since in doing so I am protected from them doing the same to me. Thus there is no such thing as total freedom possible, only a limited freedom, but one that encompasses the things that can be considered important and attainable.

This is why it is not a contradiction to call a 'free' society one where there are indeed limitations and restrictions, defined by law, and imposed by the state. Since violence and crime generally prevent people going about their business, the freedom to do these things is part of the freedom that has to be given up in order that we can be free in other ways. In my view there is no arguing against this, at least as far as actions are concerned.

However, in line with restricting actions, which can be easily seen to affect society directly, there are also restrictions on what we say, which can be viewed as affecting society indirectly. Whether this is ultimately the best course of action is debatable, but I won't get into it here. Perhaps it is not the ideal reaction, but it admittedly might be a necessary one. There is no doubt that one person can through words incite a group to do more harm than he/she could ever do on their own.

So let's grant this for the moment, which leads us to the second question, the one I want to deal with here. That is, are the restrictions or lack of them, as evidenced in the media recently, coherent, or do they reveal bias and hypocrisy?

To answer this we must keep in mind why any restriction is necessary - to allow society to function and to facilitate the freedom we really need. Hence, just as the actions which are prohibited are largely those which cause physical damage to person or property, so could this be logically extended to any comments that result in such damage.

In the case of Abu Hamza this seems to be the case. Examples of the charges on which he was convicted were "soliciting/encouragment to murder" and "using words or behaviour with intent to stir up racial hatred", and this means his comments were seen as potentially causing injury and even death to innocent people.

It might be argued that he did not personally kill or harm anyone and should not be responsible for the actions of others, and in addition that the crimes he is blamed for were 'potential' crimes, and that in our society we do not punish people for crimes that 'might' occur, however likely. However, it needs to be realised that in terms of intent and effect, pulling the trigger of a gun (which fires the bullet, which hits the body, which kills the man) is in the same class of 'action' as convincing someone to go out and get a gun (and pull the trigger, to fire the bullet...) The intent of his actions was that people would be killed. The effect of his actions is that people most probably would be. It is not that he is being punished by crimes that have not yet occurred, but for crimes which have not yet completed. People might not have yet been harmed/killed, but the chain of events which he wilfully initiated, was underway. In this way it is no different to pulling the trigger but being caught before managing to hit the target.

The Irving case is different however. Denying the holocaust, while objectionable for obvious reasons, can not easily be shown to lead to direct physical injury. The fact of the holocaust has to be accepted given the scientific and logical reasoning we accept in society (and need to accept for there to be that society) - but ignoring that reasoning cannot be a crime in itself. To deny what can be shown to be historical fact is stupid, and in cases like this undeniably malicious, but can not be considered to be in principle a cause of harm. Indeed, the world is full of people with their own particular views of history (religious or otherwise) which might validly be considered logically or scientifically mistaken - but we do not (and should not) make this a crime as such.

So I think the general theory that supports some restriction of free speech cannot support jailing Irving.

But not all laws stem from grand philosophical principles, and a lot of them, instead come about to tackle particular problems. The laws under which Irving was prosecuted I think are an example of this - because there was (and perhaps still is) a very real need to stamp out holocaust denial, not because of the act of denial of history itself, but of the specific circumstances.
The holocaust was such a traumatic event in the Europe's history that there are lessons which must not be forgotten, and while in an ideal society lies would be ignored, the unfortunate fact is that in the modern world they can cause real damage. In order for society to progress it might sometimes be necessary to draw a line under some debates so that we can all move on.
I would think that this logic could be applied to Irvings case, and that it could be argued that the issue of the holocaust for Europe (and especially Austria) is just too important to let it continue to be questioned, because there is a very real problem that such questioning inflames and destabilizes society.

The main point however is that Irving's prosecution can not be viewed as part of a general restriction on free speech, but a particular reaction to a particular problem, which happens to limit free speech. This itself is of course something which can (and I think should) be evaluated...but not here.

So finally what about the cartoons of the prophet? There is obviously in Europe no specific law against such caricatures, no specific prohibition as for Holocaust denial, so they are not related to the Irving case.

But should they have been stopped by the more general restrictions on free speech? Restrictions deemed necessary because they prevent injury and destruction? While both have resulted from their publication, I think the cartoons themselves, and the intent to publish them, cannot be shown to be responsible, either directly or indirectly. There was nothing in them that could in principle be seen as a cause of physical attack on person or property.

Of course they did cause a kind of damage, namely a personal one in that they offended and angered some people. And while in a civil society we have a responsibility to not cause this kind of harm, this does not mean that we can legislate against it. The reason we have the other laws is everyone is viewed to have a right to life and property, and this right has to be protected. But to prohibit causing offence would be to assume a right not to be offended, which while perhaps honourable, would never work. Any criticism or comment will always offend some people, but to restrict criticism would be to decide not just what material things should be protected, but which opinions This would indeed be a worrying direction to take, since limiting the freedom to criticize would rob us of the most basic right necessary for any freedom that matters, namely the right to be yourself, and this means holding one's own opinions. Modern society might prevent you acting (or inciting others to act) on those opinions, but the right to hold them must be sacrosanct.

This means Europe is not hypocritical in allowing offensive cartoons be published and also jailing a cleric for encouraging murder, but it is a trickier question how it can justify jailing somone for voicing the opinion that a historical event never happened. Perhaps a better way of looking at it is considering whether Irving really believes the holocaust never happened, or is just using his works to further a project, which in itself might cause harm. Viewed this way, it is his project which is being punished, not his opinion. But this is itself a slippery slope of interpretation, one we should be incredibly careful about stepping on to.