It’s happened – a person is facing jail for making a joke. The predicament Count Dankula faces, being tried and convicted of a hate crime by publishing a video of him training his dog to perform Nazi salutes, is bringing the issue of freedom of speech front and center again.
Listen to this clip from UK TalkRadio’s James Whale debate with Breitbart UK head, James Delingpole, and you’ll see the vastly different ideas that people hold of what freedom of speech actually means. Ironically, Whale, whose main selling point would be destroyed if his potentially offensive speech was censored, repeats “You don’t have that right. We’ve never had that right.”
Okay fine, in one sense, we have never literally “had” the right to say whatever we want. The law has always regulated speech in some sense – think of libel laws and the like. In recent times, in the UK, Canada, and other liberal democracies, this has expanded to hate speech laws that prohibit speech that is discriminatory or “hateful” towards those of a particular race, religion or other minority. There is a strong precedent for governments governing what people say.
The situation with Count Dankula, however, sets a new precedent. This is not a case of someone (it’s not even a human being) literally promoting hate against a minority. It was a joke for shock value. Count Dankula is not a Nazi and does not sympathize with Nazis in any way. He was not intending to promote anything at all actually; he’s just out to make people laugh.
The censor-advocates have come back with, “It’s still offensive, even if it is a joke.” That very well may be the case, but notice that intent has been smuggled out. All of a sudden, intent matters not. When did become the case that intent didn’t matter when deciding whether something qualifies as hate speech?
The answer is never. The British system of law has always taken intent into account, even with the worst crimes. That’s why we have manslaughter laws in addition to laws against murder. We also seem to leave room for context in most other scenarios. Obviously, when your roommate says, “I’m going to kill you” when you leave your coffee cup on the counter for the 16th time, you don’t take them to court for threat.
The subjectivity of what constitutes improper speech will always exist. In the arena of interpersonal relations, there is room for discussion and regulation, compromise and appreciating context. This helps us navigate the ambiguity of language. But this is an argument about what constitutes illegal speech. The law doesn’t deal with ambiguity well. In order to say someone has committed a crime, not to mention in order to avoid committing a crime, we need to know precisely what the crime is.
Count Dankula apparently violated the 2003 Communications Act – the clause simply states that it is illegal to publish “obscene” or “offensive” material on an online platform. “Obscene” is subjective. “Offensive” is subjective. Even if we are to accept that these words can have an objective legal definition, we need to actually have a discussion about it. It needs to be written in the law. There is no clause that precisely defines what the crime is.
This means that anybody who has ever been offended by anything online, which is everyone, has a reasonable claim. Obviously, this is impractical, so it will come down to the whim of some busybody, a cop, a bureaucrat or judge. The state holds all the cards.
Yet, this is all immaterial to the question about what freedom of speech is philosophical. Pointing out that there have always been laws governing speech is a non-sequitur – we ought to oppose them on principle. Freedom of speech isn’t what you call what’s left after the state is done with its censorship; it’s a necessary institution, and it means what it connotes. Freedom of speech is exactly this: the right to say whatever you please to anybody, in any context, without fear of intervention by government.
Of course, YouTube has the right to delete or censor videos as its part of the contractual agreement with its users. Yet the freedom from state interference in your speech is a pillar of the modern liberal society. And it means everything. It means the right to offend. It means so-called “hate speech”. It means “obscene” content. It most definitely means the right to film and publish a video of a dog performing Nazi salutes. It doesn’t mean we have to like what they say. It doesn’t mean we shouldn’t condemn such speech if we find it distasteful. Yet we must always defend their right to say it.
Why is it so important to come to the defense of an abstract principle for an offensive video? Why should we give a shit if some crass comedian goes down? Because of this aforementioned precedent – it gives bozos like James Whale every reason to claim future speech as illegal because “We’ve never had freedom of speech”. In this era ever maddening PC culture, it is even more important to defend that freedom lest far more serious transgressions against peaceful people become normal.
Freedom of speech isn’t a nice-to-have. It’s a critical piece of a civilized society. It’s the means by which we weigh up ideas. In order to avoid bad ideas, we must expose them to the light and counter with better ones. This goes for offensive jokes too. If we don’t like a joke, we respond by denunciation if we have to, but we never use the power of the state to silence them. Moreover, it was a friggin’ pug. People need to get a grip.
You can read more by James Smith on Think Liberty here.