November 10, 2023   11 mins

Freedom of expression is probably the most widely acknowledged human right in the world. Lip service is paid to it even in totalitarian states. Freedom of expression is not worth much in Russia or North Korea, but their constitutions guarantee it in very similar terms as the United Nations. And yet, it is today under greater threat than any other human right. This is happening even, perhaps especially, in liberal democracies. How are we to explain this paradox?

Our approach to the whole issue of free speech is still largely moulded by attitudes born in the Enlightenment, when the main enemy of freedom of expression was the state and certain quasi-state institutions, such as the established churches. But in modern liberal democracies, the real enemy of free speech is not the state but the pressure of opinion from our fellow citizens. This is not a new insight, but it is a frequently forgotten one. Most of our issues were recognised by the great Victorian apostle of free speech John Stuart Mill, a thinker whose uncanny ability to anticipate the dilemmas of our own age can still take us by surprise. Mill foresaw that in a democratic age, such as was just dawning in Victorian Britain, a culture of conformity would be a greater threat to freedom of expression than any action of the state. Society, he wrote, is capable of practising “a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life and enslaving the soul itself”.

Tolerance does not come naturally to human beings. For most of human history, what people believed about the natural world, about government and society and about the moral codes of humanity was laid down by authority, usually by people claiming to speak in the name of God. Pluralism and diversity of opinion have only been accepted as desirable for the last three or four centuries. They are essentially the legacy of the Scientific Revolution of the 17th century and the European Enlightenment of the 18th. These movements rejected mere authority as a source of truth, in favour of observation, reasoning and rational discourse. But like all cultural phenomena, theirs was a fragile construct. In recent years, we have reverted to the older, more authoritarian model which prevailed before the 17th century, although God no longer has much to do with it.

A large part of the explanation has been the decline of individualism. Mill’s outlook on life was profoundly individualist. He once declared that if all mankind were of one opinion and only one person of the contrary opinion, there could be no justification for silencing him. But today individualism is widely rejected as a social value. It is regarded as selfish, uncaring and antisocial. This attitude has undermined the case for freedom of expression; it reflects a view of society as a single great organism which must have a single collective notion of what is true and good. Free speech is seen as a tool of oppression.

It is true that in a world of free speech, the most powerful voices will belong to people influential enough to have a public platform. This is so even in an age when speech has been democratised by social media. However, in a world of free speech, what the powerful say will be open to challenge. The alternative is a world in which public discourse is dominated by a different and more sinister form of power — the power of those with loud enough voices and sharp enough elbows to drown out others. That power will not be open to challenge. The idea of a community with a common outlook on the world sounds more inviting than a community divided by ideological or economic conflict. However, as long as human beings retain their individuality, their intellectual curiosity and their scepticism, a common outlook cannot be achieved without systematic coercion — which is what we are witnessing today.

John Stuart Mill anticipated many things, but he did not anticipate the internet. Social media can conjure up instant online lynch mobs. They make a powerful amplifier available to the most intolerant strands of opinion. The algorithms which determine what material is placed under people’s noses expose them only to sentiments which they already agree with, thus intensifying their opinions and eliminating not only dissent but even nuance and moderation. Mill assumed that the pressure to conform would come from self-righteous majorities. But social media has conferred immense power on self-righteous minorities, often quite small minorities.

The most remarkable illustration of this is the vicious campaign currently being conducted to silence those who believe that gender is based on an immutable biological fact. Polling evidence suggests that the overwhelming majority of people believe that gender is determined at birth and cannot be altered by medical or surgical intervention, let alone by simple choice. That view is consistent with the current scientific orthodoxy, which regards gender as binary. Yet pressure from a noisy minority has created a situation in which the public expression of the prevailing and probably correct view about gender can lead to dismissal from employment, the cancellation of speaking engagements and publication contracts, and an avalanche of public shaming and abuse.

John Stuart Mill taught that the only purpose for which power might properly be exercised against individuals against their will was to prevent harm to others. But what we are presently witnessing is a subtle redefinition of the whole concept of harm to include the harm said to be caused by having to endure contradiction. The argument is that words wound, especially when they relate to another person’s identity or status; a university or a workplace where a person is exposed to disagreement must therefore be regarded, in the standard catchphrase, as “unsafe”.

The difference between violence and words is obvious. Violence is coercive. Words, even if offensive, are not coercive except in those cases where they are calculated to provoke violence. Yet in North America, Britain and much of the Anglosphere, this notion of harm has captured institutions. Recent research in the United States suggests that 29% of university professors have been pressured by university authorities into avoiding controversial subjects; 16% have either been disciplined or threatened with discipline for their words, their teaching or their academic research, while another 7% say that they have been investigated. Those working on any subject involving ethnic or religious sensitivities are particularly vulnerable. More than 80% of students report that they self-censor their work for fear of stepping out of line.

Underlying much of this debate is a fundamental challenge to the objective notion of harm. When interest groups object to someone’s opinion, harm is whatever they perceive as harm. It depends on “lived experience”, as the phrase goes, particularly when the offended group is an ethnic, religious or sexual minority. The desire to accommodate minorities who feel themselves oppressed is understandable. It assists social inclusion. But carried to its logical extreme it gives them a right of veto, an entitlement to silence opinions. And it is being carried to its logical extreme. In many countries, including Britain, hate speech is in some circumstances a criminal offence or an aggravating factor when accompanied by some other criminal conduct. The British police and prosecution authorities have agreed upon a definition of their own devising, according to which a hate crime means any action which is perceived by the victim or any other person to be motivated by hostility or prejudice. In other words, they have adopted a subjective definition dependent on the feelings of the victim rather than an objective assessment of the words used.

All of these problems have been intensified by a powerful generational divide. A mass of anecdotal evidence suggests that venues, publishers, and other media who shun controversial views are often pushed into it by their junior staff. This rage of a younger generation against their own societies is not wholly irrational. Liberal democracy has always depended on economic good fortune. The turn in the economic fortunes of Western democracies has persuaded a whole generation that they will be the first cohort for many decades who will be worse off than their parents. The postwar generation seems to them to have lived on the fat of the land, deferring intractable issues like climate change, capricious patterns of inequality and poisonous race relations for their children and grandchildren to deal with.

The perceived power of vested interests and the inertia of democratic decision-making have combined to persuade much of the younger generation that debate is worthless and direct action the only answer. The European and American sense of moral and intellectual superiority provokes attempts by a younger generation to discredit their legacy. Hence the impact of the Black Lives Matter movement (even in societies such as Britain where the police do not routinely murder people of colour), the demands for “decolonisation” of school and university syllabuses, and so on. The influential French philosopher Michel Foucault argued that what people regard as objective truth or independent opinion is really no more than the product of entrenched power structures. Debate is pointless in such a world; to get anywhere, you have to break the power structures. I do not imagine that the young enemies of free speech have read Foucault’s opaque prose. But many of them act on the same principle. An angry and frustrated generation is unlikely to accept the conventions of rational discourse or the messy compromises of democratic politics as readily as their parents did. Indeed, successive surveys by the Washington-based Pew Research Institute suggest that support for democracy is declining among the young in much of the West, especially in Britain and America.

These developments have fundamentally changed the argument about freedom of expression. The issue now pits different groups of citizens and different generations against each other. The people who scream abuse at their adversaries from the roadside or from their social media accounts would claim to be exercising their own rights of free expression. The impact of their anger is indirect. They create an oppressive climate in which other people are silenced and may lose their careers, their livelihoods and their reputation, or else may simply be forced to keep away from controversial subjects. The screamers do not themselves bring about these consequences. They simply influence the mood in a way which causes other people, such as editors, publishers, universities and employers, to persecute dissenters, because in a world of heightened intellectual tensions they prefer to keep their heads down. An editor is under no obligation to give space to people of controversial views. A publisher is under no obligation to publish them. A university cannot be made to employ them. So, when the freedom of expression of one group is used to silence others, how is the state to mediate?

The law has generally been on the side of free speech. In the United Kingdom, to be criminal, words have to be inflammatory and intended to — or known to be likely to — stir up hatred against vulnerable categories of people. For good measure, there is a broad exemption for the protection of free speech which in principle permits discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse. The British police have recorded as “hate incidents” gender-critical tweets, tweets critical of the police, accidental damage done by schoolchildren to a copy of the Koran, even speeches by ministers proposing restrictions on immigration. But when these cases have come before the courts, they have usually been thrown out. In one case where the police took action against a gender-critical tweeter, the judge remarked that their conduct offended against a “cardinal democratic principle”. “In this country”, he added, “we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”

But there are limits to what law can achieve. The government and the courts are impotent to protect people against the worst threats to free speech: the howling trollers of the internet, the addictive outrage of the street protesters, or the oppressive self-censorship of publishers, journalists and academics. These things can only be addressed by a profound cultural change, which it is beyond the power of law to bring about. Changing this culture depends on you, on me, on every one of us. The only reason that activists try to disrupt and suppress unwelcome opinions is that experience shows that it works. Venues do not book controversial speakers. Publishers do not publish controversial books. Prominent commentators do not step out of line or, if they do, they are bullied into issuing cringing apologies.

None of us has to behave like this. All of us can contribute to the solution by being willing to make it clear where we stand, not just on free speech itself, but on the subjects which have become taboo. I return to the ideas of John Stuart Mill. He recognised that what was needed was the courage of individuals to defy the mob. In language which might have been directed at our present problems, he wrote that “precisely because the tyranny of opinion is such as to make eccentricity a reproach, it is desirable in order to break through that tyranny that people should be eccentric”. By eccentricity, he meant diversity of opinion. “That so few now dare to be eccentric”, he wrote, “marks the chief danger of the time”.

If, for example, we believe that gender is not an optional status but a biological fact, we can say so, instead of being shamed into silence. If we reject concepts dear to particular ethnic or religious groups, we should say so and refuse to back down or apologise when they take offence. We have to discuss the unmentionable, challenge the unchallengeable. I am not recommending rudeness or abuse, but there is a larger place for reasoned objection than we realise.

The greatest challenge will be self-censorship by venues, publishers, the media, and academic institutions. They will say, perhaps only to themselves or in the privacy of their editorial boards or faculty meetings, why should we expose ourselves? Why should we quarrel with our young and idealistic junior staff or students who do not wish to sully their hands with this or that book, film, or lecture? Why should we court the unpleasantness involved in speaking up? The answer to that was given by Mill in his inaugural address at the University of St. Andrews, after he had been elected as its Rector in 1867. “Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion,” he said; “bad men need nothing more to compass their ends, than that good men should look on and do nothing”.

Free speech is not a luxury. Ever since the 17th century, the civilisation of mankind has been based on the notion that there is such a thing as an objective truth, independent of human will. It may be only partly knowable, and more or less difficult to identify, but it exists somewhere out there whether we like it or not. We have built our intellectual world by objective study of the available material, by logical reasoning and by willingness to engage with dissenting opinion. These are not just social constructs. They are universal principles, which are necessary if we are to discuss controversial issues in the same language. They have made possible the phenomenal economic prosperity and intellectual achievement of the last four centuries.

The basic principles of rational discourse on which all this depended are now under challenge. Reason is rejected as arrogant. Feeling and emotion are upheld as suitable substitutes. Freedom is treated as domineering, enlightenment as offensive to the unenlightened. Current campaigns to suppress certain opinions and eliminate debate are an attempt to create a new conformity, a situation in which people will not dare to contradict, for fear of provoking their outrage and abuse. These things are symptoms of the closing of the human mind and the narrowing of our intellectual world. Something in our civilisation has died.

No one can be entitled to intellectual safety. That is because statements of fact or opinion are necessarily provisional. They reflect the current state of knowledge and experience. Once upon a time, the authorised consensus was that the sun moved round the Earth and that blood did not circulate round the body. These propositions were refuted only because current orthodoxy was challenged by people once thought to be dangerous heretics and disturbers of the peace. Historically, most societies have abhorred democracy, rejected religious and political tolerance, and regarded the whole idea of racial or gender equality as ridiculous. These ideas, which were thought to reflect obvious moral truths, died out in most countries in the face of rational argument. Knowledge advances by testing conflicting arguments, not by suppressing them. Understanding increases by exposure to uncomfortable truths.

For those of us who live in democracies, our collective life depends on the resolution of issues between citizens by marshalling objectively verifiable facts. It depends on ordered debate about their implication under common rules which exclude coercion and falsehood. It depends on a culture in which the outcome of our processes of collective decision-making is accepted even by those who disagree with it. That is what is at stake in the current debate about free speech. The alternative is a narrow-minded, intolerant and authoritarian society in which the fear of giving offence or challenging existing shibboleths eliminates the most creative and original products of the human spirit.

Ultimately, we have to accept the implications of human creativity. Some of what people say will be wrong. Some of it will be hurtful. Some of it may even be harmful. But there are greater values at stake. We cannot have truth without accommodating error and tolerating the challenge to received ideas. We cannot live together in society without allowing people to say things that other people regard as foolish, hurtful or untrue. It is the price that we pay for allowing human civilisation to advance and flourish. It is worth fighting for.


This is an edited version of a speech delivered last weekend at the Christchurch Town Hall, for the New Zealand Free Speech Union.

Jonathan Sumption is a former Justice of the Supreme Court, and a medieval historian.