Special to L. Neil Smith’s The Libertarian Enterprise

It is now an official fact that England is a country where freedom of speech is in danger. According to the Secretary of State for Education,

Despite the development and publication of [non-binding guidance in 2019], incidents of concern are still reported, including open attempts to suppress speech which too often go unchallenged by those in leadership positions. There are still too many reported instances of freedom of speech and academic freedom not being adequately protected within higher education, and of students and staff being intimidated or harassed as a result of their views. There is also evidence of an emerging culture of intolerance of freedom of expression amongst a significant and vocal minority on university campuses

 

There is much to welcome in this Report. But the problem it describes is not only in higher education. Undoubtedly, there is in the universities a militant and growing intolerance of diversity. So far as these are creatures of the taxpaying public, this intolerance should be uncovered and ended. Intolerance, however, has become an omnipresent fact in the country as a whole. I have never seen discussion in England, political or otherwise, so constrained as it has become in the past twenty years – or perhaps in just the past five years. Defending freedom of speech means looking beyond the universities. It also means looking beyond the State and its various satellites. That a sovereign government should issue a formal report, lamenting how freedom of speech has decayed, is proof in itself that this is not a problem of censorship by the executive body of a centralised state. If we need Acts of Parliament to set us free again, we need more extensive Acts of Parliament than those here proposed.

For this reason, I will not begin with complaints about the treatment of Alison Chabloz, who was sent briefly to prison this year for making fun of the holocaust. For the record, I disapprove of her punishment. People should be free to say whatever they please about matters in the public domain. But the legal persecution of dissent is a rarity in England. Though she should have been ignored, Miss Chabloz seems to have done everything short of turning up outside a prison with a formal request of admission. I have mentioned her for the record, but I have nothing more to say about her. I have nothing more to say because the militant and growing intolerance of our age is formally different from the censorships of the twentieth century despotisms. Her imprisonment is not an example of the intolerance I presently have in mind.

What I do have in mind—and this is an example of the real chilling of debate in this country—begins with a news release that I was sent about six weeks ago by the Peter Tatchell Foundation. This is an organisation committed—or so its website assures me—to “speaking out for human rights.” For the nature of its commitment, here is part of the news release I was sent:

Tomorrow, Tuesday 30 March 2021, marks one thousand days since the UK government first promised to ban LGBT+ conversion therapy. This has still not happened….

Peter Tatchell, LGBT+ human rights campaigner and founder of the StopDithering.com campaign against conversion therapy, said:

“While the government continues to dither, countless LGBTs continue to be harmed by this unethical and ineffective practice….

“The ban must protect trans people, children and adults, and apply to religious practices. It is time to stop dithering and get this done.”

Is it safe to oppose this? No doubt, it is legal to oppose it. But is it safe to oppose it? For me, as a libertarian of a half century’s standing, I think the answer is yes. I have no need to discuss what “conversion therapy” might be, or whether it works, or is worth the effort of trying. All I need do is say that, unless there is fraud or force as traditionally defined, what consenting adults do or have done to themselves is their business alone. Anyone who chooses conversion therapy may or may not get what he wants from it. But I doubt if anyone is forced to choose it. I doubt if there is any shortage of information about its nature or likely effects. Where is the human right in making laws against it?

The answer is that, when I was young, the moral authoritarians were usually honest. They argued that individual freedom had, or should have, its boundaries. Peter Tatchell and his friends take the more scandalous approach of defining human rights as the obligation to dance as they desire.

I think it is safe for me to say this, and to include a mild rebuke. I am, I repeat, a libertarian of long standing. I have, since the 1970s, been using exactly the same argument for the right of men to have sex with other men. Using it to defend the right of men not to want to have sex with other men is surely a permissible extension. It probably is. Suppose, however, I agreed with the objects of conversion therapy. Suppose I thought all-male sex an unnatural or sinful act, and suppose I thought conversion therapy the moral equivalent of Weight Watchers—would I then be in danger?

The answer is that I might be in danger. There is no danger that I shall be arrested and put in prison. As said, the Alison Chabloz case is exceptional. More likely, if I make my belief in conversion therapy public, someone will complain to the police that he has been offended. The police may then record a “non-crime hate incident.” This will go on my record with the police, and may be used in future to my detriment. The police may also visit me at my place of work, and warn me not to step over the line into actual illegality. They used to do this to men accused of cottaging. The purpose was—and is—to tell an employer: “This man is evil. Though we cannot be bothered to prosecute on this occasion, please give him the sack.”

Or my employer may sack me without needing advice from the police. In March 2019, Maya Forstater lost her job with the Centre for Global Development for having said that men who change sex do not become real women. Also in March 2019 Seyi Omooba lost her part in a West End play for having said that homosexuality was “not right.” She was dropped at the same time by her theatrical agency. If I am a self-employed plumber or electrician, I can speak my mind and laugh at the complaints. If, like the great majority in this country, I am a salaried employee—whether in the state or private sectors is unimportant: the pressures to conformity are the same in both sectors—I must be careful what I say. I am scared of the sack. I am scared of sudden redundancy. I am scared of missing out on promotions. I am scared of generally unfair treatment because of my opinions. I therefore hide my opinions. The Peter Tatchells among us then look round complacently, telling themselves and each other that silence equals agreement, and that the few squeaks of opposition are from “disreputable extremists.”

This explains the present unbalanced debates over slavery and colonialism. Take these examples:

First, in September 2020, the David Hume Tower at Edinburgh University was “denamed.” Someone had bothered to read the 1748 essay Of National Characters, and found in one of its footnotes an unfashionable statement about race. It was at once set aside that Hume was a philosopher of at least considerable note. More important was the “non-overt disrespect, offence, and racism that Black students have to go through at the University of Edinburgh.”

Second, the Music Department at Oxford is presently worried that its curriculum “structurally centres white European music,” and that this causes “students of colour great distress.” It therefore wants to change its focus from the European classical tradition to things like “Artists Demanding Trump Stop Using Their Songs.” It also wants to discourage students from studying musical notation, as this is a “colonialist representational system.”

 

I could give a third illustration, and a fourth. I could fill a pamphlet with more. Some would be more alarming, though few less absurd. But these two can stand well enough for all the others. What makes these debates so irritating is that they are not debates. One side can put its case just as it pleases. The other is reduced to accepting all the main charges and begging for mitigation: “What Hume said was evil and unpardonable—but he was important for other things.” Or: “I feel your pain, but Mozart owned no slaves, and everyone knows that Beethoven was really black.” Because it has been so humbly begged, full mitigation will, in both cases, be granted. Hume will continue to be studied in the universities. Music students at Oxford will continue to use the standard notation and to analyse the usual classics. But preventing these things was never part of the agenda. The agenda was and is to transform what were honoured or unquestioned parts of our civilisation into things useful but more or less suspect, things subject to a toleration that may be varied or withdrawn at any time without notice.

It should be plain that we are, in both England and America, living through a revolution. This is not a normal revolution as these things are considered. Unlike in France or Russia, there has been no overthrow of an established order, no burst of state violence, no establishment after that of an overtly new order. There are no secret police. There are no labour camps. No one is beaten to death in a police cell. All the same, we are living through a revolution. It is a revolution that has involved the gradual capture of education, the media, the administration, the charities and the more permeable religious institutions, and the recent aligning of the larger or more glamorous business concerns. I see no point in discussing its ultimate objects. I am not sure if these are wholly agreed. But its provisional object is the destruction of our traditional identity, and of our liberty so far as this stands in the way of that provisional object.

These two elements of the provisional object are equally important. Our civilisation is being pulled apart because doing so strips away the mass of associations that, left in place, might hold up the more alarming parts of the transformation. Opposition is so feeble not only because that is all that will be tolerated: feeble opposition is all that can be tolerated. This is a revolution in which opponents are not murdered, but only scared into silence. They are scared into silence chiefly by fear of destroyed or blighted careers. The revolution will be defeated when people stop being scared. Then, there will be vicious and unrelenting public mockery, and commercial boycotts, and shareholder rebellions, and lost elections, and the general feeling of solidarity and impunity still sometimes found in a football stadium.

The collapse might be faster and more complete than may at the moment seem possible. I doubt if the number of true believers is that great. Much has been made of a long march through the institutions. But the ideologies are so clearly false and absurd, and they are so clearly opposed to the interests of ordinary people, as reasonably seen, that I doubt if the belief we see echoed in the media is that deep. A small minority of the committed have spent two or so generations working their way into positions of middling importance, and then promoting each other upwards. They rule by a kind of intellectual leverage that would be admirable if it were less malign. Take Sevi Omooba again—the anti-homosexual actress. She sued the theatre that had employed her for breach of contract, and the agency that had represented her for religious discrimination. Part of the defence both made for having dropped her was fear that they would in turn be dropped if they kept her. The theatre said it feared being left without leading players “as opening night approached.” The agency said it might have faced “’catastrophic’ consequences if it didn’t part ways with Omooba.” It is conceivable that the defendants would have taken a softer line but for fears that they would suffer a boycott. It is conceivable that those who might have boycotted them were not themselves that concerned, but in turn feared adverse consequences. In the same way, the frantic virtue signalling we see in almost every public or private institution—the Oxford Music Department, for example—might be less a result of conviction as of attempts to curry favour with those who are themselves trying to curry favour. When you find a clamour this loud, it is easy to ignore the silence of nearly everyone else and to join in the shouts. But the danger of leverage in financial deals is that small untoward movements can bring disastrous losses. It is the same with intellectual leverage. It needs just one small boy to whisper “The King has no clothes on.”

Therefore, we have the militant intolerance of diversity that I mention in my first paragraph. That one small boy must be scared into silence. Better, he must be hunted out in advance and demonised. There must certainly be no safe place where he can open his mouth. We see this obviously with the big Internet companies in America. Facebook and Twitter are headed for East German levels of monitoring and control of speech. Google has filters to lower the prominence of dissenting websites. Amazon pulls dissenting books from sale. Paypal and Patreon will not handle payments for known dissidents. Google and Amazon collaborate to ensure that less repressive competitors like Parler and Gab are kept at the fringes of their market.

But it is not just information technology. Every large company runs as part of some distributed Ministry of Propaganda. Just look at their advertising and the nature of what they sponsor. Sainsbury has announced that it does not welcome business from racists. At the moment this can only be commercial virtue-signalling. Is the company really threatening to refuse entry to the usual suspects the next time they go shopping? There is none of the infrastructure needed for matching the faces of shoppers to photographs, and none for asking identified people to leave. It would not be hard, though, to develop this infrastructure. Things may never go quite that far. But I can think of several “human rights activists” who would rejoice if it did. They would adore a world of privatised social credit, where known dissidents were unable to find work, unable to rent commercial or residential property, unable to advertise their services, unable to find suppliers, and unable to buy food. As ever, the first victims would be the racists. But what was done to them would soon be done also to every other kind of dissident, including people like me.

The question is how to end the mixture of self-righteous and often insane babbling and of scared silence. End that and the revolution collapses. Everything else then becomes possible. Looking just at higher education, the Government proposes:

[To] legislate for a Free Speech and Academic Freedom Champion with a remit to champion free speech, investigate infringements of free speech in higher education and recommend redress…

[To] widen and enhance academic freedom protections, including extending protections so that recruitment and promotion are also covered.

I see no objection in itself to these proposals. As said, universities are creatures of the taxpaying public. We have a right to see that they conduct themselves in a seemly manner. If it were to do nothing else but enact these proposals, the Government would have made an unexpected and possibly useful stand for freedom of speech. The difficulty is that the proposals apply only to higher education. There is nothing here for the rest of the country. The rain of malicious twaddle falls everywhere. Only the universities are to be given a legal umbrella. And, looking only at the universities, the lack of protection elsewhere makes protection less effective here.

First, students are to have the freedom of speech I took for granted as an undergraduate—while they are at university, and no longer than that. They will be free, as the Government hopes, to “feel safe to challenge conventional wisdom by putting forward and discussing ideas that may be controversial, unpalatable, or even deeply offensive.” And while they are doing this, someone will be taking a note of every word said and making sure that those uttering them are punished in the usual ways once they are beyond the remit of their Free Speech and Academic Freedom Champion.

Second, members of academic staff are to be made an almost equally unattractive offer. It goes something as follows:

Please “feel safe to challenge conventional wisdom by putting forward and discussing ideas that may be controversial, unpalatable, or even deeply offensive.” This safety extends only to you and others in your profession. If you say something that is found “deeply offensive,” almost no one outside your profession will dare speak in support, but many will be encouraged and sometimes required to scream abuse at you. Organisations that have nothing to do with higher education will discriminate against you. So far as you use it to the annoyance of certain groups, your immunity will be examined, one letter at a time, by lawyers in search of a weak point of drafting. If they find no excuse for ruining you, your immunity will last until the Conservatives lose an election. The law will then be changed in five minutes, and everything you may have said between now and then will be taken into consideration.

It is not an offer anyone will take seriously. The only way to win the battle for freedom of speech is to make sure that everybody has it. Focussed protections are better than nothing—but may not be very much better than nothing. How, then, to bring about a general protection?

 

For an example of how not to create a general protection, we have an answer given last year by the Adam Smith Institute–the organisation that brought us the Poll Tax and the Private Finance Initiative. Someone called Preston Byrne starts from the assumption that freedom of speech is threatened by various modes of official censorship, and offers a British equivalent of the American First Amendment. All very well—and, if the Government were to make such a law, I would celebrate—except that, leaving aside almost voluntary martyrs like Alison Chabloz, we already have protections of speech comparable to those under American law. You get your case into court, and the judges will set about paraphrasing Locke and Mill. The problem is not that the police are arresting dissidents. It is that dissidents are scared of the sack, and dissident organisations cannot open bank accounts. And for every actual dissident who is sacked, there are a hundred potential dissidents who keep their heads down. The danger is not that Parliament is making laws to abridge the liberty of the press, but that both the state and private sectors are stuffed with prodnoses able to spot racism, sexism, homophobia, transphobia and climate change denial on the sticky side of a postage stamp.

I will add that America does have the American First Amendment, and opinion is about as effectively constrained there as it is here. Everyone who has a job to lose is just as scared as over here. Oh, America has more outspoken voices on the Internet than we have. But a combination of bent search rankings from Google and a lack of formal accreditation pushes these voices to the margin. As in England, the dominant conduits of information are media and education systems controlled by the enemy. Another law telling the authorities not to shut down dissenting blogs will not save the writers of those blogs from losing their jobs or their PayPal accounts.

A better line of attack—perhaps the best, or perhaps even the only line—is anti-discrimination laws. Here is a law recently passed in South Dakota:

No person may be employed or dismissed, or accorded preferential, adverse, or unequal treatment with respect to any application hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or any term or condition of employment, by reason of the person’s … Ideological, political, or sectarian opinions or perspectives.

I suppose I should, as a libertarian, explain how I can accept anti-discrimination laws. All the time these were being made to protect dark people and women and homosexuals and the disabled and the others, I and people like me were setting up a constant moan about the horrors of involuntary association. That is what I did, and I still believe that what I did was right. No one has a right to be loved or not to be shunned. But no one listened to me and people like me when the laws were made. The laws have become part of the normal framework of employment and housing law. They will not be repealed in the foreseeable future. If they can be used as a precedent and extended to cover opinion, it would be stupid to stand on principle and not to welcome the extension. We are stuck in a totalitarian trap. If an anti-discrimination law can stop the jaws from closing while we wriggle free, I will not make any fuss.

The South Dakota law is a serious effort at attacking the intolerance of diversity that we presently face. It is also unworkable at is stands. The rights that emerge from the English liberal tradition can be given absolute protections—that, or they come with exceptions that can be clearly stated or obviously implied. Anti-discrimination rights are outside this tradition. In other words, they do not really exist. Since, however, it is strategically useful to accept that they exist, they must somehow be enacted in ways that do not lead to absurdity or glaring injustice.

The practical difficulty is that many acts of discrimination are reasonable on grounds other than of personal choice. Let us for a third time take the case of Sevi Omooba. She was employed to play a lesbian. A large part of the play’s intended audience was lesbians and homosexuals. She appears to believe these people are hell-bound sinners. That raises an obvious question of her fitness for the part. Getting rid of her was a reasonable act. She was a commercial and an artistic liability.

Strictly construed, the South Dakota law might force the continued employment of Miss Omooba. It might also force a Jewish school to employ Alison Chabloz as a history teacher, and a Roman Catholic adoption agency to employ a pro-abortion activist. Moreover, the absurdity or injustice would not be random. Just as with the taking down of those Christian bakers and hoteliers, there would be deliberate and coordinated attacks—in this case not so much to destroy perceived enemies as to make the law into a scandalous abuse before it could achieve its stated ends.

One solution would be to forbid ideological discrimination—unless it was necessary to achieve the reasonably clear purpose of an organisation. This might let Miss Omooba keep her part as a lesbian—I am not sure here, but not that worried either—but it would prevent pro-abortion activists from targeting the Roman Catholic Church. The limitation of “reasonably clear purpose” is an attempt to block an obvious move to frustrate this kind of anti-discrimination law. Suppose again what is not true, that I approve of conversion therapy, and I am denounced to my employer. My defence is that what I say outside work hours about sex has no bearing on my fitness to do my job as—let us imagine—an accounts manager. My employer then shows me a rewritten mission statement now including a purpose to provide “a welcoming and inclusive safe space to all stakeholders.” We need some device for a court to brush this aside as a reason for dismissal and to ask how my opinions compromised my employer’s clear purpose as a seller of paper bags.

 

I mention the South Dakota law. We do not, however, need a rewritten version of this in England. We seem already to have one of our own in the making. The Equality Act 2010 is, considered purely in terms of right and wrong, an act of legislative poison. It consolidates and expands earlier laws that had already established a totalitarian supervision over every organisation in the country. It allows anyone who feels unloved or unvalued to run sobbing to a board of apparatchiks with almost unlimited power to interfere in matters that should be left to free choice. But, as I have said, the law is there, and no amount of denunciation from people like me will make it go away. What is important for present purposes is that among the “protected characteristics” that must not be unloved or unvalued is “religion or belief.” Now, “belief” is defined in the Act as “any religious or philosophical belief.” The meaning of “philosophical belief” is not given in the Act or any of its accompanying literature. The best official definition, I believe, is negative. In the parliamentary debates over the Bill in 2010, the Ministers asserted that they did not intend the new law to give any kind of protection to political beliefs. Once, passed, though, the Act was given to the courts to interpret, and there has been a slow and imperfect drift towards a protection from dismissal for reason of political belief.

The first leading case deals with protections of belief given by an earlier law. In Grainger plc & Ors v. Nicholson [2009], the Employment Appeals Tribunal held that Mr Nicholson had been unfairly selected for redundancy because of his “belief in man-made climate change, and the alleged resulting moral imperatives.” From here comes the test applied in Employment Tribunal cases when discrimination in the workplace is alleged on the grounds of philosophical belief:

(i) The belief must be genuinely held.

(ii) It must be a belief and not… an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

In Olivier v Department for Work and Pensions (2013), an Employment Tribunal moved closer to protecting political rather than general philosophical belief. Regardless of his detailed claim of unfair dismissal, Mr Olivier’s belief in democratic socialism was accepted to come within the meaning of “belief” under the 2010 Act. We then have the rather confusing case of Redfearn v the United Kingdom [2012] Arthur Redfearn was elected as a British National Party councillor in 2004. After pressure from a trade union, his employer sacked him from his job as a bus driver. The union and the employer agreed that he was a clear danger to non-white members of staff and the passengers. Mr Redfearn sued, and his case eventually reached the European Court of Human Rights in Strasbourg. This decided that:

In view of the importance of democracy in the Convention system, the Court considers that in the absence of judicial safeguards a legal system which allows dismissal from employment solely on account of the employee’s membership of a political party carries with it the potential for abuse.

More recently, the courts have stepped back from the protection of political opinions. The weak point in the protections outlined in the Grainger case is the requirement that an opinion should be “worthy of respect in a democratic society.” That gives room to an activist judge to protect or not protect according to taste. The weak point was used in the Maya Forstater case, briefly mentioned above. In 2018, Miss Forstater tweeted that

…radically expanding the legal definition of “women” so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights & protections for vulnerable women & girls

This was her opinion, and she was sacked for stating it in public. The Employment Tribunal judge dismissed her case, on the grounds that, while she had a legal right to her opinion,

that does not mean that her absolutist view that sex is immutable is a protected belief for the purposes of the [Equality Act]…. The approach is not worthy of respect in a democratic society

We are still waiting for the outcome of Miss Forstater’s appeal. This may expand or contract the existing protection of beliefs in employment law. In the meantime, though the protection of belief is still weak and ambiguous, it is already taken seriously within human resources management. According to HRZone

…employers need to be wary of taking steps where strongly held beliefs of employees are known which could be presented as the “reason” for any steps taken by employers, such as disciplinary action or dismissal. Employers should review their policies and ensure that their management training on these issues is up to date.

It is possible that we are one or two judgments away from a reasonably firm protection of political belief in the workplace. Though we are living through a revolution, it has not yet captured every institution in the same degree. It has not captured every part of the present Government. It has not wholly captured the upper reaches of the legal system. English judges are legally competent to develop the Law without regard to the wishes of those who control Parliament. And sometimes willing to do this in unexpected ways. For the moment, though, the protections that exist are shifting and ambiguous. No one with anything to lose should rely on them. Anyone inclined to speak out against Peter Tatchell when he is “speaking out for human rights” should wait for the outcome of the Forsteter appeal. Even assuming this goes as hoped, he should perhaps wait longer still.

If the British Government is serious about restoring freedom of speech, let it make laws to protect diversity in higher education. But let it also make a brief amendment to the Equality Act 2010, adding political opinion to the list of protected characteristics. Let this be added with the limitation mentioned above. But let it be made the law, visible to everyone, that no moderate and uninflammatory statement of opinion should lead to any adverse consequences in a person’s workplace. What, after all, could be more reasonable or fair?

What also could be more fatal to the progress of a revolution that has not yet burned its way through every institution, and that might easily be stopped by no more than a chorus of mocking but legally protected laughter? It would be another Brexit.

 

© 2021, seangabb. Reprinted from The Website of Sean Gabb