Silencing the President: the Free Speech implications of censoring hateful political speech online – Paul Wragg

17 03 2018

Something incredible is happening in modern politics.  The shackles of propriety, diplomacy, and discretion have been released.  Politicians are speaking their minds.  This has not resulted, as so many commentators tell us it has, in statesmen ‘telling it like it is’.  Instead, political debate is awash with vacuous, bewildering, abrasive guff.

The new statesman may be emboldened, consequently, but serious, progressive, thoughtful policy-making has given way to a politics of reactionary, populist, ill-conceived rabble-rousing.  The exemplar of this, of course, in the United Kingdom, is the impending car-crash of the government’s confused or else confusing position on Brexit, of which very little is known or knowable apart from the apparently incontrovertible proposition that Brexit means Brexit.

declining standard of statesmanship is a global phenomenon.  Ill-judged and irrational outbursts are increasingly the norm.  For example, recently, three Australian MPs were threatened with contempt of court when they condemned several judges hearing appeals on sentencing for what they perceived to be ‘hard left activist judges’ who were, they said, engaging in an ‘ideological experiment’ by being soft on terror sentences.  In Canada, a political candidate used Twitter to tell a critic to ‘Go blow your brains out you waste of sperm… Your mother should have used that coat hanger’.   In New Zealand, the leader of The Opportunities Party stunned one of the party’s candidates with an abrupt e-mail that read: ‘Hi Jenny, please just resign from the party.  You’re a pain in the arse’.  She tweeted an image of it with the caption ‘So this happened today’.

Meanwhile, in the UK, we are spoilt for choice.  There are many political figures who, like some great contortionist, never miss the chance to put one foot, and sometimes two feet, into their mouths.  This includes Michael ‘people in this country have had enough of experts’ Gove, Amber ‘real people don’t care if the government reads their text messages’ Rudd, Boris ‘Sirte, Libya has a bright future as a luxury resort once their clear the dead bodies away’ Johnson, and failed politician but successful DJ, Nigel ‘we never said the NHS would get £350m a week after Brexit’ Farage.  Sometimes these gaffes are simply careless, like poor Alec Shelbrooke MP, who tweeted his delight about working with the Minister of State for ‘Northern Island’.  Others are more sinister, like when former senior Ulster Unionist Lord Kilclooney described the Irish prime minister Leo Varadkar as ‘the Indian’.

The undisputed global champion of this brave new world is Donald J Trump.  What started out as a joke by the writers of The Twilight Zone and The Outer Limits has taken on terrifying proportions as the dangerous war of words between North Korea’s despot and the President of the United States plays out through, of all things, Trump’s twitter account.  The world finds itself in the utterly bizarre situation where the leader of the free world is an erratic, brazen, barely-cogent bully who speaks first and thinks… when?  Even his most ardent fan could not deny he is no wordsmith or great thinker (despite him saying: ‘I know words, I have all the best words’).  His prolific tweeting has been described charitably as an important means of connecting with everyday folk.  His popularity is undeniable (if not understandable) but he has become a regular figure of controversy, ranging from his abhorrent views on women (he likes to “grab them by the pussy”) to his bewildering denial of climate change (it is a “Chinese conspiracy”).

But it is the Britain First controversy that I wish to focus on.  This involved, it will be recalled, Trump retweeting inflammatory videos posted by far-right hate group, Britain First, in late November 2017.  By doing so, he endorsed what was otherwise Islamophobic disinformation and caused their number of followers to swell 1000%.  It led to a political moment in which all sides of British politics demanded action, to which Trump eventually issued a qualified apology, of sorts.  This leads to an interesting thought experiment: given Twitter’s hard line on hate speech, what are the free speech implications of it removing Trump’s tweets where they breach its policy? (Admittedly, it can only be a thought experiment: regardless of whether it is legally entitled to do so, it is hard to believe Twitter would ever seriously consider doing

Classically, the right to free speech forms part of the suite of rights owed by the state to the individual (recognising individual autonomy).  Here, though, it is a question of horizontal (person to person) rather than vertical rights (state to individual).  Does the corporation (Twitter) owe a duty to the individual (Trump) not to unduly interfere with his (in this case) First Amendment right?  Why should it?  There is no obvious reason why we should think the right to free speech is at stake.  Any private organisation is entitled to maintain ‘house rules’ on how members interact.  Even Alexander Meiklejohn, the champion of free political expression, recognised that the First Amendment ‘is not the guardian of unregulated talkativeness’: ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. 

We should have to come up with something ingenious to show this sort of speech deserves protection from corporate interference under the constitutional guarantee of free speech.  In the US, the usual argument against censoring hate speech is the deep distrust of government to do so without capturing the ‘right sort’ of dissent.  That argument cannot apply here.  There may be some mileage in pursuing John Stuart Mill’s ‘tyranny of the majority’ argument: that unpopular speech ought to be protected to ensure minority voices are heard.  ‘If all mankind minus one, were of one opinion, and only one person was of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.’  Applying this, though, to protect hateful speech strikes me as a misreading of Mill’s claim since it is not the expression of a minority view, but the advocacy of violence or, at the very least, the preparatory foundation of such violence through the steady simmer of resentment and ill-will that is at stake.  Instead, it is a call to action; a clamour for ‘something to be done’.  It seems more in keeping with Mill’s concession that conduct is not equivalent to speech:

‘no one pretends that actions should be as free as opinions.  On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act’.

Even if we are convinced that there is a strong theoretical claim to free speech protection (that it is only the prejudices of the ‘liberal elite’ that excludes hateful speech from the realm of protected speech), how is the banned user to protect his rights in law?  At this point, let’s transfer the problem to the UK.  Let’s take up the case of Britain First, whose Facebook and Twitter accounts have, in fact, been deactivated.  Let us adopt a broadminded interpretation of ‘politicians’ and ‘political parties’ to include Britain First and its leaders.  Section 2 of the Human Rights Act 1998, read through the lens of section 6, obliges public authorities, like the courts, to act compatibly with the European Convention on Human Rights, including the right to freedom of expression under Article 10.  Murray Hunt has argued that this creates a limited scheme of ‘horizontality’ since the courts must ensure existing causes of action protect these rights, but that there is no obligation to create new causes of action to do so.

But what cause of action could Britain First rely upon?  Twitter and Facebook have not acted in breach of contract because, even if we could overcome the serious problem of insufficient consideration, the terms of that contract allow them both to act in the way they did.  There could be no action under the Equalities Act 2010 since, although ‘belief’ is a protected characteristic, discrimination against an objectionable political belief does not count (see Grainger Plc v Nicholson [2010] ICR 360, [28]).  There is no tortious claim that they might bring.

Might, then, Britain First apply to the European Court of Human Rights, alleging a violation of Article 10?  It might claim the UK fails to provide an adequate remedy to protect its political expression from interference by social media providers.  After all, ‘freedom of political debate… form[s] the bedrock of any democratic system’.  Even if we accept, as we must, that the hateful speech of Britain First is properly termed ‘political expression’, it seems unlikely the ECtHR would be sympathetic to their plight:

‘a political party whose leaders incite recourse to violence or propose a policy which does not comply with one or more of the rules of democracy or is aimed at the destruction of democracy and infringement of the rights and freedom afforded under democracy cannot lay claim to the protection of the Convention against penalties imposed for these reasons’ (Refah Partisi v Turkey [2001] ECHR 495, [47]

Is this not proof, though, of the ‘hard’ left suppressing speech it does not like?  It is the paradox of liberalism that the liberal can only seek to persuade, not force, others to share her liberal outlook.  And what of tolerance?  To this, there is no finer response than Karl Popper’s:

‘If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, the tolerant will be destroyed, and tolerance with them… We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant’, Karl Popper, The Open Society and its Enemies, Vol 1: Plato

Is freedom of speech violated by social media providers suppressing hateful political speech? No.  To say otherwise is fake news.

Dr Paul Wragg, Editor-in-Chief, Communications Law; Associate Professor of Law, University of Leeds; Associate Fellow of the Honourable Society of the Inner Temple.

 This piece will be published in the June issue of Communications Law and is reproduced here with kind permission.


Actions

Information

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s




%d bloggers like this: