Adding laws to protect free speech is more likely to damage it

I was reading this article in The Times (paywall) by Danny Finkelstein. In it, he addresses the government’s plans to introduce a law to protect free speech on university campuses. After raising some absurd questions he know the real answer to, he notes this:

One of the biggest threats to free speech, one of the most common reasons for people to watch what they say and keep their views to themselves, is the rise in the ability to complain about each other to the authorities. The more authorities, the more complaints, the less free speech.

Reporting each other to the police, professional bodies or standards commissioners has become something of a national pastime, with a record being kept of even the most unjustified accusations.

With the government’s new law will come more authorities to report to and more things that can be reported to the authorities. Within five years what started as a way of reducing the chilling effect of conformity on academic discourse will become itself chilling. Student groups and rival academics will start accusing each other of infringing their free speech. And they will gather petitions seeking fines or disciplinary action against their adversaries.

I think the point he makes is a good one. The most deleterious effects on free speech in recent years have all come through over use of legislation. As we have added more and more legislation governing what can be said, so cases of reporting have increased along with them.

As I argued here 8 long years ago (apparently), when press regulation was up for discussion, I was not convinced that we tackle the problems that many perceive with the press through further legislation. I said then:

We already have laws against phone-hacking, libel, harassment, contempt of court and a plethora of other crimes in which significant parts of the press have been indulging. More to the point, we already have an “independent regulator” in the form of the judiciary. This newly proposed press regulation will add nothing to the laws we already have and would do nothing to stop the illegal acts that were carried out and led to this whole debacle coming to the fore. What is needed is for our existing laws to be applied properly and miscreants brought before the courts (as has been happening in the wake of the phone hacking scandal).

As Finkelstein noted in his Times article, ‘Just because there is a problem doesn’t mean you need to legislate.’

These sorts of pieces of legislation tend to follow the old politicians syllogism that was outlined in Yes Minister:

  1. We must do something
  2. This is something
  3. Therefore, we must do this.

We frequently identify problems, decide ‘something must be done’ and then do something just because it is something to do. It might well address the very specific problem at hand (though we frequently manage to miss that particular target too) but the unintended consequences are usually far more wide reaching than were envisaged and cause more problems in the long run.

The various ‘hate speech’ laws that have been introduced over the last 20 years or so are a good case in point. The problem identified was that some people were saying some pretty unpleasant things about other groups of people. The political solution to this – as seems to be a knee-jerk response of many on the left – was to legislate to ban those words from being said. Of course, it did absolutely nothing to stop people continuing to think those things and led to those views being expressed more cautiously and quietly in places where they were considerably less likely to be challenged.

But worse, it opened up the national pastime of reporting unjustified accusations that Danny Finkelstein highlighted in his article. We began to see street preachers – who were not having a go at anybody – being arrested for saying thing to which someone took offence. In fact, we began to see activists asking pointed questions, already knowing the answer, just so they could take offence and indulge their desire to involve the police in matters that should have nothing to do with them. There were people removed from their posts for saying something that didn’t actually offend anybody, but had the potential (as deemed by someone who wasn’t offended themselves) to offend somebody else. As more legislation was introduced, more reports were made, the police became more interested in investigating people making comments on twitter that might be deemed offensive whilst infuriating many people in their general refusal, thanks to a supposed lack of resources, to investigate crimes such as burglary and anti-social behaviour.

It seems difficult to see how adding yet another piece of legislation, no matter how well intentioned, will help matters. What we need is less legislation, not more. We would better protect free speech by freeing ourselves from the restrictive laws more recently brought in and by giving access to existing laws for ordinary people. Rather than investigating people because of offence or so-called ‘hate speech’, we would do better to give more people – especially those without the mountain of money currently required for it – access to libel laws. Most people agree that lies and an active desire to incite violence are the limits to free speech. Removing the legislation that goes well beyond these things, and giving ordinary people access to the former, would be a far better way to protect free speech than add yet further legislation that, as Danny Finkelstein points out, doesn’t actually achieve anything beyond what already exists anyway.

In the end, stupid ideas and comments are with us to stay. Nobody would be out of prison if such were illegal. Offensive and insulting words and comments should also not be a grounds for arrest because, in the end, such things are in the eye of the beholder. Far better to really free up speech by freeing us from the restrictive (and largely unnecessary) legislation that has long built up around it.

I also happened to see in today’s Times that Prince Harry got in hot water for daring to take a pot shot at the American First Amendment. It was in the context of his larger war on the press that he has recently been fighting and that many celebs were all over just a few years ago when Lord Leveson was doing his thing. But it strikes me, if we might learn some lessons from our American cousins, it is that their First Amendment has remained untouched and unchanged for a reason. It is why they dare to call themselves the land of the free. We may have an uncodified constitution, but it is hard to compare the rash of restrictive legislations we have amassed regarding what we might say to the First Amendment of the USA and legitimately claim we are the better off for it. As a Particular Baptist who knows something of the history of my kin in this country – and recognises that some of them were the ones who left for America as a direct result of such legislation – we are only too aware of the damage of restrictive legislation on people’s consciences and beliefs. Just as was the solution to the Test Acts and laws against preaching without a Church of England issued license was not extra laws but removal of deleterious ones, so to protect free speech today we don’t need more regulation but something of a clear out of some existing ones.