Areopagitica Lost

Areopagitica: lost?

by Pete Yates

The relationship between religion and freedom of expression has been called into question again in recent weeks. UCL’s Atheist, Secularist and Humanist Society advertised its weekly drinks social with a cartoon apparently depicting Jesus and Mohammed drinking together at a bar. Following a number of complaints from students who were offended by the depiction of Mohammed, and perhaps conscious of the tension created by the actions of the UCL-educated “underwear bomber”, the UCL SU demanded that the image be removed from the society’s facebook page. Although the SU has now conceded that it cannot force the society to remove the offending image, there is a continuing threat of disciplinary proceedings against the committee on the grounds that the image constituted “an act of bullying, prejudice, harassment or discrimination”.

This is the latest in a series of modern clashes between religious groups and proponents of freedom of expression, with the Satanic Verses controversy being the most dramatic and far-reaching. The domain of religious outrage does not belong exclusively to Islam, however. A fortnight after the UCL controversy broke, Jay Leno attracted the ire of the Sikh community by suggesting that the Golden Temple of Amritsar was one of Mitt Romney’s holiday homes. An online petition has, bizarrely, described his comments as “racist”, and the Overseas Indian Affairs Minister Vayalar Ravi stated that “freedom does not mean hurting the sentiments of others”.

Of course, that is exactly what freedom of expression means. The free-speaker’s argument – that freedom of speech is meaningless without the freedom to offend – has become almost clichéd through long usage. The liberal tradition in this area, which stretches from Milton, Mill and Paine and which was recently and eloquently expressed by Christopher Hitchens, insists that offensive expression is valuable both for the speaker and for society as a whole. From the speaker’s perspective, it is a vital “constitutive” feature of a just society that a government treats all its citizens as responsible moral agents and allows them to form and express their own convictions. Through censorship, society deprives itself of the opportunity to question established truths.  Milton captured this in Areopagitica:

I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary, but slinks out of the race where that immortal garland is to be run for, not without dust and heat.

So, from the philosophical perspective of a liberal democracy it seems entirely straightforward that offensive speech should be protected. It is therefore all the more astonishing that the European Court of Human Rights appears to have created a “right not to be offended” by criticism or mockery of one’s religious beliefs. In 1985, the Otto-Preminger Institute in Innsbruck announced a series of six showings of Schroeter’s “Das Liebeskonzil”, a satirical film which portrays the God of the Abrahamic faiths as a senile old man who worships and kisses the devil, suggests that the Virgin Mary was a sexual deviant and portrays Jesus as a “low grade mental defective” who molests his own mother. In a masterpiece of non-sequiturs and circular reasoning, the Court held that the seizure of the film by the Austrian authorities had not violated the applicant’s Article 10 right to freedom of expression. This, apparently, was because “the respect for the religious feelings of believers as guaranteed in Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration”.  A series of later cases have followed the lead set in Otto Preminger v Austria.

The court’s entirely unsubstantiated assertion that the film breached the Article 9 rights of believers is clearly wrong. The mere knowledge that it was being shown (behind closed doors) cannot possibly be said to inhibit believers’ abilities to hold or manifest their beliefs. The Court’s perceived “clash of rights”, which pitted the freedom of expression against the freedom of religion, is therefore illusory. The Court attempted to substantiate its empty rhetoric with the equally vacuous assertion that speech which is “gratuitously offensive” cannot contribute to any public debate capable of furthering human affairs. Leaving aside the obvious point that the publication of the Satanic Verses created a huge amount of public debate, neither the speech nor the offence it causes is “gratuitous” from the speaker’s point of view.

That the student union of a university which was apparently built on the principles of freedom and secularism should feel the need to self-censor in order to protect the religious from offence is deplorable. It is not, however, unexpected. Claims of religious offence are widespread, though secularists can be glad that religious institutions can no longer simply torture and burn those who trouble them (at least, not in the UK). What is unexpected, and much more worrying, is the apparent complicity of the European Court of Human Rights in this censorship – defenders of free speech should not have to fight on both these fronts. They have, however, won a minor victory recently. “Visions of Ecstasy” – the subject of a case very similar to Otto-Preminger v Austria and the only film ever to be banned in the UK on the grounds that it was “blasphemous” – was passed for release last week. This is a meagre step, but a step nonetheless, towards “the liberty to know, to utter, and to argue freely according to conscience” which Milton valued above all others.

  1. Sam T said:

    Thanks for this article. As a Christian, I certainly support freedom of speech as long as it is not inciting hatred (I love Life of Brian!). In fact I believe that the church is at its best when it is marginalized and at its worst when it is connected to power.

    On a more general note – I would comment that we do censor some things with broad public approval. We don’t allow cigarettes to advertise, we ensure pornographic magazines are on the top shelf, we have the TV watershed. To an extent, then, is it society’s (government’s?) role to decide what is good for us to hear and see?

    • Sam, a very quick point in reference to your very complex question: I think the strongest justification for the regulations that you refer to relates to the protection of children. Under the age of 18, liberty is restricted in many ways (no drinking, gambling, watching 18-rated films etc) and even the strongest advocates of individual liberty believe this is correct. JS Mill argued that for “minors”, or those under 18, society should focus on offering levels of education that would allow young people to grow into autonomous adults who make good, but also free, decisions. The regulations that you allude to do seem to be an integral part of this education, but despite some forms of censorship (if this is the accurate word) these regulated products are still available to an adult in society, even if access is limited somewhat.

      • Sam T said:

        I certainly accept around argument re children. But it’s the access ‘limited somewhat’ point that interests me. With cigarettes I think it’s more than just not allowing children not to see them, it’s adults too. You’re also not allowed to advertise for sex is another example.

        Would JS Mill agree with this?

  2. I don’t think there was much advertising in Mill’s day!

    Seriously though, Mill’s idea of liberty derives from his ‘harm principle’ which, broadly speaking, says that no-one can rightfully be coerced into doing/not doing something except in instances of harm to others, and its prevention. Although he qualifies this somewhat, and says that taxes are justified to pay for public goods in society (in one of his essays, he even rails against inequality), this is the general ‘rule of thumb’ deriving from his liberty principle that it would increase a society’s overall welfare, or happiness.

    I suppose the question of advertising in general delves into the realm of social science. One would have to somehow establish the quantifiable effects of tobacco advertising, and measure the harm caused. However, I think a strict adherent to the harm principle – a libertarian – would say that advertising restrictions when they are not aimed at protecting children are unwarranted as it should be left to the individual to make decisions about his own welfare. The state has no business interfering in the decisions of individuals, where harm is not present. The ‘social good’, beyond the protection of property rights, is not even a factor, according to that thinking. (Of course, the role of money – and corporate power, particularly in the case of Big Tobacco – in influencing human decisions is also not a factor according to the rather radical libertarian…)

    Advertising is a tricky one though. It’s difficult to see how you can protect children without restricting adult consumption of it too – the overlap seems impossible to split apart. In that instance, I think the sorts of regulations that you mentioned earlier, when the content is something we generally agree children should be protected from, is justified. Beyond that, I don’t think censorship is acceptable, and if people really really really want to harm themselves – through tobacco or alcohol etc – despite a good education that ought to have been invested in them (though in the UK, it is still an ideal that we strive for), and despite a hopeful deployment of good ‘nudges’ in society that improve the choice architecture and allow more rational decision-making (this is also me dreaming), then they should be allowed to do so.

    Perhaps Mr Yates would like to respond to the initial question anyway?

  3. Sam T said:

    I’ve never studied Mill, so interested to find out more. In a pure libertarian be able to give ANY feedback to a friend say, who wants to do something that they think is not good for them? If you go out wearing a plastic bag, would I be able to say to you: you’re being an idiot, wear something else; or (maybe more realistic) you’re getting married to someone who I don’t think is good for you – do I just stay silent because it’s your right to choose what’s good for you, or should I speak out?

    It seems libertarianism is based on the idea that there is no objective truth. But I think I’d have a bit of an issue with that if that is the case.

    • Mill is a hero. Read his book On Liberty – it is just over 100 pages, so you’d get through it very quickly.

      Libertarians don’t say you can’t give feedback or anything like that. In fact, they say you are totally within your right, and perhaps even encouraged, to voice your opinion and muster up all your persuasive powers to prevent your friend from crossing a broken bridge or taking drugs etc. But the point is you cannot use coercion. If they have made their decision to do something and it does not harm you, or anyone else (except themselves), stopping them is not justified.

      They don’t say anything about there being no objective truth. In fact, Robert Nozick, the capo dei capi of Libertarianism, also wrote a lot on epistemology and about how knowledge is “truth-tracking” (don’t ask, because I can’t tell you). It may seem amoral, but they just rank property rights (and self-ownership, which derives from it) above everything.

      If you want to know more, I recommend this excellent review of Nozick’s book by the philosopher Peter Singer. It was written in 1975:

  4. PeteYates said:

    Hi all. Thanks for your comments and apologies for my late reply – I’ve only just seen them.

    The issues you raise aren’t things I’ve considered in a huge amount of detail, but they are very interesting. I think there are two separate (but interrelated) points – the question of advertising and the protection of children. I think Mill’s harm principle is a good starting point for both questions, though it seems to me to suffer from one crucial weakness – the fact that different people will define “harm” differently.

    My instinctive starting point is simply that individuals have a right to receive, as well as to impart, all the information they want, unless there is a clear and compelling argument for restricting the expression or information (the immediate incitement to violence being the most obvious example). As a result, the restrictions on advertising are wrong unless there is some countervailing consideration. Leaving children aside for the moment, it doesn’t seem to me that there is any such argument. Individuals have the right to make bad decisions as well as good, and if we are going to allow them to smoke/drink/watch porn/whatever then it seems nonsensical to argue that we can’t advertise those same things. To argue otherwise would put us in a situation where we were saying that individuals are free to do these things, but not to know about them.

    As for children, Babak, you said that “It’s difficult to see how you can protect children without restricting adult consumption of it too – the overlap seems impossible to split apart”. I think this is a really interesting point, and one on which I can’t really make up my mind. We do seem to take it for granted that children and adults should be treated differently and that one aspect of this differentiated treatment should be restrictions on advertising, television viewing and so on. However, I probably would go much further than most people (and I suspect further than you guys) in arguing that children have the right to be decision-makers in the same way as adults can be decision makers. Certainly it seems bizarre to me to make an arbitrary distinction between 17- and 18-year olds and to say that the latter are mature and capable of making informed decisions about (say) whether to smoke or not, and that the former aren’t. Of course, the 18-year old age limit is a rule of thumb born out of practical necessity rather than any hard and fast rule about the capabilities of 17- and 18-year olds, but it does demonstrate the futility of attempting to prescribe general rules for specific people. People generally respond by arguing that children are incapable of making good decisions and that they are easily swayed, but of course that is true of a vast number of adults. In fact, a huge amount of research has shown that children have much better decision-making skills, at much younger ages, than we give them credit for. Once I’ve decided that advertising restrictions for adults are unjustified, I have to look for some objective reason why they should be justified in the case of children. I’m finding it quite difficult!

    We have, perhaps inevitably, gone wildly off-topic!

    Just to pick up on one minor point in your first comment, Sam, you mentioned that we do censor things “with broad public approval”. Although you are of course right that advertising restrictions do seem to have broad public approval, it’s worth noting that any argument relating to freedom of expression and information (and indeed any human right) must succeed or fail on its own merits, and not because of the presence or absence of majority approval. No doubt you would agree with me on this anyway, but I think it bears pointing out. This is especially so because (to go back to my original post), the Court in Otto-Preminger used the fact that the majority of Tyroleans are Christians as an argument in favour of the censorship in that case. This is perhaps one of the most shocking aspects of the case – the whole point of human rights is that they are not dependent on the good will of the majority, and yet here we have the European Court of Human Rights allowing the sentiments of the majority to trump the rights of the minority!

    Anyway, these are just a few (probably completely misconceived!) thoughts. Let me know if you have any comments.

    • Hi Pete,

      Thanks for sharing your thoughts. They make an article by themselves!

      Briefly though, you say Mill’s HP suffers from the “crucial weakness” that people will define harm differently. I disagree that this is as much of a problem as you suggest. It may be true that people will differ in their exact definition of harm, but it does not mean people will deviate too far from a common mean (measured along the ‘normal curve’ as it were). People’s different conceptions of harm will not be so qualitatively different that establishing a common ground is impossible. Physical injury, for example, could (presumably) be accepted by even a minimalist in this instance. Similarly, psychological scarring might fall under the notion of harm.

      To establish what society could define as harm, therefore, extensive polling could be done to find a commonly agreeable threshold, beyond which harm occurs (this presumably would consider both psychological and physiological aspects of the notion). Or, perhaps if you didn’t want to go with public opinion, you could solicit expert opinion from psychologists, doctors, neuroscientists and the like. Both seem to me to be ways we could establish a commonly-agreeable definition of harm. It is not that harm is difficult to define per se, but rather that people have different ideas of where its threshold lies.

      As for the idea that children should be treated as mature decision-makers, just like adults (above an arbitrary and internationally varying age), could you please write a full article on that? It would be a good, radical read – just what we like.

      For now, I can’t say I’m convinced – a young brain is still developing and likely to be to much more affected by ‘inputs’, so it seems best to shield ‘harmful’ (there we go again) influences. I remember reading a study about two groups of young children, one which was shown scary images and the other which was a control (and therefore not), and the affects on later life on their emotional intelligence. Apparently, there was a statistically significant, negative impact on those who had seen the images. I have no idea what the paper was… but you get my point. You say children have better decision-making abilities than we give them credit for, but – with apologies to people who believe they are ‘homo economici’ – adults make crap decisions too. As Herbert Simon says, we possess ‘bounded rationality’, not the full kind. The purpose of shielding images of alcohol/drugs/pornography from children is not (just) to help them make better decisions as children, but to help them to develop to their full potential when they reach adulthood.

      I think I’ll stop there before writing another essay. Thanks for your thoughts in any case, and please do continue writing articles – they provoke healthy debate, which I think is one of the justifications for free speech, is it not…?

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