Table Of ContentFreedom of Expression
Freedom of Expression:
Counting the Costs
Edited by
Glen Newey
CAMBRIDGE SCHOLARS PUBLISHING
Freedom of Expression: Counting the Costs, edited by Glen Newey
This book first published 2007 by
Cambridge Scholars Publishing
15 Angerton Gardens, Newcastle, NE5 2JA, UK
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Copyright © 2007 by Glen Newey and contributors
All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without the prior permission of the copyright owner.
ISBN 1-84718-360-3; ISBN 13: 9781847183606
TABLE OF CONTENTS
Editors Introduction.....................................................................................1
Can Speech Be Intolerant............................................................................9
Peter Jones
Sex, Speech, and Status:
New Developments in the Pornography Debate........................................30
Catriona McKinnon
Aristotelian Privacy:
Perfectionism, Pornography, and the Virtues of the Polis.........................54
Scott Davis
Equality, Marginalisation and Freedom of Expression..............................74
Paul Kelly
Permitting Dishonour:
Culture, Gender and Freedom of Expression............................................97
Monica Mookherjee
Mill’s Liberalism, Security, and Group Defamation...............................121
Glyn Morgan
Political Liberalism and Reasonable Free Expression.............................144
Graham Long
On Mill, Infallibility, and Freedom of Expression..................................169
Alan Haworth
Mill, Liberalism, and Exceptions to Free Speech....................................191
Jonathan Riley
Notes on Contributors..............................................................................211
EDITOR’S INTRODUCTION
During the early years of the twenty-first century, freedom of
expression has again become politically contentious in the UK and
beyond. The UK Labour Government, whose attempt to enact legislation
banning incitement to religious hatred was lost before the 2005 election
for lack of Parliamentary time, reintroduced the measure soon after its
victory in that election. The Bill finally received royal assent, despite
fierce opposition in the House of Lords and beyond, as the Racial and
Religious Hatred Act 2006.1 Whereas the Government had intended to
outlaw the use of “threatening and abusive” language about a religion
irrespective of intent, the Lords amended the Bill to provide that “[a]
person who uses threatening words or behaviour, or displays any written
material which is threatening ... if he intends thereby to stir up religious
hatred” (emphasis added).2
During the Bill’s passage through Parliament its critics charged that
the new law would deter artists, comedians and others from satirising or
ridiculing religion, since such activities could be construed as stirring up
religious hatred. Others voiced the worry that it would be impossible to
identify religious groups with sufficient clarity: would pagans, for
instance, receive protection under the legislation, or some 400,0003 self-
professed UK adherents of the fictional “Jedi” religion? Since it was
unclear how far the act of defaming, say, Islam as a religion would ipso
facto count as defaming its supporters, it also lay open to doubt whether
criticising religious doctrines as such would be outlawed under the
measure.4
The ferment over the religious hatred bill reflected wider tensions in
the UK and elsewhere over religion and cultural identity. Recently dispute
has raged, for instance, over religious dress and how far its demands may
justifiably be overridden by those of public and professional life. A
1 Online at http://www.opsi.gov.uk/acts/acts2006/20060001.htm.
2 On hate speech, see the papers by Peter Jones, Graham Long and Jonathan Riley
in the present volume.
3 UK Census 2001. See
http://www.statistics.gov.uk/census2001/profiles/rank/jedi.asp.
4 See Glyn Morgan’s paper.
2 Editor’s Introduction
Muslim woman, Aishah Azmi, brought a claim for unfair dismissal and
religious harassment after a Church of England school where she worked
in Dewsbury, West Yorkshire, suspended her for failing to comply with its
request that she remove her veil. The school said pupils found it hard to
understand her. When she refused, Azmi was suspended from her job as
ethnic minority achievement curriculum support assistant.5 Controversy
also greeted the announcement by the Leader of the House of Commons
and MP for Blackburn that he would henceforth request that Muslim
women remove their veils when visiting him at his constituency surgeries.
Meanwhile announcements by prominent employers such as British
Airways and the BBC that they would limits their employees’ ability to
wear Christian symbols such as the crucifix were denounced in some
quarters. In November 2006, two British National Party officials were
acquitted on incitement charges after one of them, the party’s leader Nick
Griffin, was recorded describing Islam as a “vicious, wicked faith”. Some
senior politicians called for a further tightening of the law following the
acquittals.
Tensions were not confined to inter-group disputes between Muslims,
Christians and secularists. The play Behzti by the Bangladeshi writer
Gurpreet Bhatti was cancelled by Birmingham Repertory Theatre on
safety grounds following vigorous protests by Nasreen’s fellow-Sikhs.
They objected because the play, set in a gurdwara, included a rape scene
which they construed as sacrilegious.6 Defenders of the play accepted that
Sikhs were sincerely offended but argued that they, like everyone else, had
no right not to be offended.7
In the Netherlands, the film-maker Theo van Gogh was murdered in
October 2004 after depicting violence against Muslim women in one of
his films. In September 2006 Pope Benedict XVI was forced into the
unprecedented act of issuing a pontifical apology for making remarks
about a medieval Byzantine emperor, during an academic lecture in
Germany, which were interpreted as anti-Islamic. In February 2006 the
freelance historian David Irving was sentenced to three years’
imprisonment by an Austrian court under its laws against Holocaust
denial. The most widespread controversy, however, was the uproar among
Muslims which greeted the publication in the Danish newspaper Jyllands-
Posten of cartoons depicting the prophet Mohammed in September 2005.8
5 The claim was dismissed but the court awarded Azmi damages of £1,100 for
personal trauma.
6 See Monica Mookherjee’s paper.
7 See Alan Haworth’s paper.
8 See Paul Kelly’s paper.
Freedom of Expression: Counting the Costs 3
The newspaper’s editor had decided to publish the cartoons when he
learned that a Danish author had found it impossible to find an illustrator
for a children’s book on Islam.
Part of the background to the heightened sensitivity over religion lay
in worries about terrorism after the September 11 attacks in the United
States. Even before the attacks the UK Terrorism Act 2000 established a
new offence of “incitement” to commit acts of terrorism. Latterly, a clause
originally in the Racial and Religious Hatred Bill 2005 but dropped prior
to enactment, outlawing acts “glorifying” terrorism, has been reintroduced
in the 2006 Terrorism Act. Once again debate has focused on the difficulty
of achieving legal certainty in respect of the proposed legislation,
particularly in attempting to define “terrorism” adequately for statutory
purposes.9
Several of the contributors to the present volume mount an immanent
critique of liberalism, their aim being to show that the foundations of
liberalism justify or even require exceptions to free speech. Some doubt
whether the state can retain its professed neutrality – as, for instance, the
Danish state did in relation to the Jyllands-Posten cartoons – when not
only the effects of neutrality, but their very justification, seem to favour
one side in the dispute. Others express concerns that free speech may
violate or damage the civic equality to which liberals are committed.
The questions begin, indeed, with the justification of free speech
itself. It is not merely that some justifications for free speech, such as
pragmatic ones, cut both ways. Unless blank use is made of the idea that
free speech is an intrinsic good, censorship may be justified on the
grounds that it is needed in order to promote the extrinsic goods or
requirements which are held to justify free speech, such as getting at the
truth. It may be needed to screen out interventions which may impede the
production of messages or – until recently, a relatively neglected area of
discussion – their reception. Even where free speech is held to be justified
by some overriding moral commitment, such as equal respect for persons,
restricting the opportunities and occasions of speech may be needed to
underwrite substantive equality.
*
In contrast with the conventional approach which defends free speech
on grounds of toleration, Peter Jones’ carefully argued paper asks whether
9 See e.g. British Irish Rights Watch, “The Terrorism Bill”, accessible online at
http://www.birw.org/Terrorism.html.
