Free speech is important. It's not just me saying that most people think free speech is one of our core values:
When asked what British values are, the most-chosen answers from all respondents were: respect for the law (69%); respect for free speech (66%); democracy (64%); respect for private property (62%); and equality between men and women (61%).
Now I know we can argue over what we mean by values but there's no doubt that most people have been raised with an essential belief in free speech. The problem comes when we begin to discuss what we mean by this free speech. Do we actually mean that people have the right to say whatever they like free from consequence? Take this comment from Norman Tebbit:
‘I’m not a particular friend of Leon Brittan, but this gentleman could equally well get up and accuse me of things like this – and I wouldn’t care for that. In fact I’d probably go round and smack him on the nose.’
This comment was in the context of parliamentary privilege - a peculiar form of free speech where there are, quite literally, no consequences. But in the context of free speech the words that upset Norman Tebbit enough for him to 'go round and smack him on the nose' are protected whereas the consequential physical violence isn't. However, in most circumstances, if we can demonstrate that the words spoken are untruthful, offensive and damaging then we have recourse to the law to get them withdrawn and to secure compensation.
None of this restricts free speech. You are quite at liberty to libel someone but you do so at the risk of having to withdraw the words and pay the offended person. However, we have added some other constraints on free speech within the criminal law through, for example, the Racism and Religious Hatred Act 2006. These constraints take the form of acting in response to words seen as incitement (in the case of the Act above, incitement to hatred). We have also seen constraints placed on 'offensive' or 'threatening' speech where it is broadcast or published including via social media like Twitter or Facebook. And finally we have direct and specific restrictions on free speech in the form of bans and controls on certain forms of commercial speech. The best example here is the ban on advertising tobacco products.
So while we say free speech is important we have allowed limits to be placed on speech that mean it is not always free and unlike the USA we have no First Amendment merely the goodwill of parliament in protecting our freedom. And this allows people to play a game of redefining what we mean by speech in order to justify censorship. Here's Anshuman A. Mondal setting out the premise for his justification of such censorship:
However, in his seminal book How to Do Things with Words, the Oxford philosopher J L Austin developed something known as 'speech act theory'. He argued that there were two broad categories of speech: the first, which he called 'constatives', are simply descriptive and informational; the second he called 'performatives', and they don’t simply say something, they do something. These forms of speech are therefore a kind of action.
In my book Islam and Controversy: The Politics of Free Speech after Rushdie, I argue that the giving and taking of offence are performative speech acts in Austin’s sense. They act upon the world and the work they do is political insofar as they aim to establish a power relation between offender and offendee. Put simply, to offend someone is to subordinate them, to put them down. Conversely, to take offence is to draw attention to that subordination.
So we have two sorts of speech - one (facts and figures or stuff like that) Mondal would allow to be free while the other (opinions, observations and exhortations) should be constrained because to use such language is an act of oppression. Mondal argues (from his premise based on one philosopher's work) that the second type of speech isn't speech but action and thereby no different from Norman Tebbit's smack on the nose. Thus:
If some forms of speech are actions, then it follows that restricting or regulating them does not necessarily diminish freedom in speech in general, just as restrictions on some acts – say, robbery or murder – do not jeopardise freedom as such. Otherwise, the only true freedom would be anarchy.
Now this may be an entirely circular argument since you have to accept Austin's philosophical position that certain types of speech are actions, but it also raises a definitional problem because you have to set the boundary between speech that is protected and speech that isn't. And it is clear that Mondal intends this definition to be in the hands of the offended person - if they are offended then the speech should not be protected. Not only has Mondal redefined speech but, in doing so, he also redefines freedom (or rather suggests there is more than one sort of freedom):
If giving and taking offence is the idiom through which struggles over freedom and equality are being articulated in contemporary society then a society that desires a balance between freedom and equality is perfectly entitled to restrict and regulate offensive speech acts, either by legal means or through moral pressure. This is not the threat to freedom of speech that some might take it to be, but rather a shaping of the kind of freedom we, as a political community, believe to be desirable.
In essence we have the progressive dilemma - a vocal assertion of civil liberties combining with the desire to control the words people use through fiat. To square this particular circle it is essential to redefine both parts of the term 'free speech'. Thus some speech is redefined as action (not objectively different from a smack on the nose) and freedom is framed in the context of equality rather than individual autonomy. Neither of these new definitions make sense to the ordinary person, we are in a world where it isn't possible for a black person to be racist or a woman sexist.
Lastly such a redefinition hands to others an absolute power over what is said - I cannot predict whether what I say will 'offend' because the choice to be offended is not in my control. Moreover, Mondal want certain protected groups to have a monopoly in the use of law to police that offence. It is commonplace to see someone who isn't actually 'offended' by some speech arguing that the speech is 'offensive'. In effect no speech is protected and what we understand as free speech ceases to exist.
The result of this is that things that needed to be said don't get said for fear of someone badging what is said offensive. And this has enormous and damaging consequences for our society. Free speech is important, too important to be defined by whether or not someone is offended by that speech.