European kindness is threatening the foundations of free speech

Japan Times

2 days ago

Britain and Europe have become "a hotbed of digital censorship, mass migration, restrictions on religious freedom,' according to Samuel Samson, a senior adviser to U.S. Secretary of State Marco Rubio.
His punchy boss further threatens to bar European visitors to the U.S. for "censoring' Americans online. Vice President JD Vance also condemned European "backsliding' on basic democratic values in a speech that outraged his audience at the Munich Security Conference last autumn.
It used to be liberal progressives and radicals who denounced the state for infringing freedom of speech. Now it's the turn of the populist right to rage against "woke' censorship. U.S. President Donald Trump's own respect for the democratic process is questionable and administration officials, contemptuous of academic and artistic freedoms at home, make unlikely ambassadors for human rights abroad. But what if these populists have a point?
Alas, the U.K. and Europe should look hard at their protections of the rights of individuals to say whatever they please. Some governments who would regard themselves as liberal minded are in danger of stifling, if not killing, free speech, albeit out of kindness. That's where the muddle begins.
In theory, all states, even totalitarian ones like North Korea and dictatorships like Russia, which murder truth-telling journalists, subscribe to Article 19 of the United Nations Universal Declaration of Human Rights that states "everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference.' In practice, all states also have restrictions on freedom of speech, and rightly so. Shout "fire' in a crowded cinema out of mischief and you'll be held responsible for those trampled in the rush for the exit; incite a crowd to lynch a victim and you'll spend many years behind bars. Individuals also have the right to protection against libel, slander and harassment.
This is the stuff of a thousand philosophy seminars. But balancing individual rights with social responsibility is harder than it looks. The U.S. Supreme Court has made a better fist of it than most by extending First Amendment protections for free speech in recent decades, ruling that the authorities may only prosecute inflammatory speech that's "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'
Several European governments, however, have now tilted in the wrong direction — toward censorship and overreach. Germany goes to absurd lengths to protect its political class from personal abuse, for instance. France and Italy have similar laws. In the U.K., however, the desire to promote social harmony and protect minorities has taken precedence over free speech.
So, a retired police officer was arrested in his Kent home by a posse of former colleagues for a wry tweet about pro-Palestinian demonstrators. As his home was ransacked, the police commented on his suspiciously Brexit-y reading material. In another notorious incident that made the front pages, a couple were held for eight hours at a police station for writing WhatApp messages and posting salty criticism of their daughter's primary school. Unfortunately, these aren't isolated incidents of overzealous authorities.
Another cause celebre of the populist right on both sides of the Atlantic is the case of Lucy Connolly, the wife of a Conservative councilor who was jailed for 31 months for a public order offense. Yet she's no free speech martyr. After three children were murdered in a knife attack in Southport last year, Connolly wrongly assumed the assailant was an immigrant — he was the son of refugees from Rwanda — and tweeted on X calling for mass deportations and inciting people to set fire to hotels housing immigrants. The post was viewed more than 300,000 times on a day when racist thugs attacked mosques and migrant hostels.
Judges are the ultimate guardians of the rule of law, the fertile ground out of which both British and American democracy grew. The courts therefore come down hard on those who threaten public order. Connolly's sentence was intended to be exemplary, but it was at the extreme range of censure — and should have been reduced on appeal.
Confused thinking and badly drafted legislation lies behind the U.K.'s recent illiberal tilt. Hate crime is now defined by law as "any criminal offense perceived by the victim or any person to be motivated by hostility or prejudice towards someone based on a personal characteristic.' Such vague, subjective criteria should have no place on the statute book. As Jonathan Sumption, a former supreme court justice puts it: "Words may now be criminal if they are abusive or even insulting, even if they are not threatening and put no one in danger.'
At the root of much of this is poorly written legislation. The concept of "noncrime hate,' introduced after the racist murder of Black teenager Stephen Lawrence 30 years ago, also obliges the police to record incidents of so-called offensive speech that have no criminal penalty. The evidence, such as it is, can stay on file and be used in criminal record checks seen by potential employers. The College of Policing's Kafkaesque guidance states "the victim does not have to justify or provide evidence of their belief and police officers or staff should not directly challenge this perception' — a charter for aggrieved individuals to pursue private vendettas.
Ten of thousands of police hours are devoted to noncrime hate; 13,200 incidents were recorded by police in the year to June 2024. It's easy to collect the evidence because most of it is posted online — far easier than tracking down violent criminals, burglars and fraudsters. So while police chiefs went public in the media this week with demands for more money from the Treasury, the government should be asking whether officers are making best use of their existing budgets.
Unfortunately, things look likely to get worse before they get better. The Labour government's new employment bill includes provisions to require employers to take "all reasonable' steps to prevent harassment of staff at work by clients and customers, including "overheard conversations' — a boggy territory which strips out context and relies heavily on subjective impressions about what was heard. How will free speech in bars and pubs be monitored in practice?
Prime Minister Keir Starmer made his reputation as a lawyer by taking on corporations trying to stifle free speech. He needs to be alert to the wider context in which this legislation is being proposed, ideally calling for a review that would halt the pernicious drift toward limiting freedom of speech for fear of causing minor offense.
Martin Ivens is the editor of the Times Literary Supplement. Previously, he was editor of the Sunday Times of London and its chief political commentator.