Joanna Cherry’s column in The National today is as thoughtful and thought-provoking as ever. Two thoughts, in particular, were provoked by her remarks. The first relates to the matter of regulation, specifically in relation to freedom of expression and social media. The second to the issue of discrimination and the notion of a “right not to be discriminated against”.
When the subject of regulation comes up, in whatever context, the first question that comes to my mind is whether regulation is the solution. To answer that question we need a clear understanding of what the regulation is supposed to achieve and some assessment of how well it is serving that purpose. It strikes me as a distinctly odd notion that freedom of expression might best be protected by imposing restrictions on what people can say and what topics they may discuss. Which is not to say that freedom of expression is or should be absolute. It is merely to say that absolute freedom of expression should be the starting assumption. It should be the default. Just as the right to vote should by default be assumed to apply to everyone regardless of any considerations so that a persuasive case must be made for every exception rather than those exceptions being the starting point from which to introduce further exceptions, so is should be assumed that anybody is allowed to say anything about anyone or on any subject. Exceptions to this then have to be justified. Thus, we ensure as far as may be that the legal and regulatory constraints on freedom of expression are the minimum society can live with.
Making a case for withholding the right to vote from very young children is easy. As age increases so does the difficulty of arguing that the franchise should be withheld. At some point, it becomes impossible to make a case that is generally acceptable and that is the age at which we stop withholding the right to vote. By the same token, there are some things that it’s easy to argue should be excepted from the right to freedom of expression and other things that are less so. The debate is inevitably more complicated in relation to freedom of expression than the franchise example because age is an absolute and language is not. We can know a person’s age. We can only have an opinion about the acceptability of what they say. There may not even be general agreement on what has been said – its meaning – before we get to the question of whether it is OK to say it. Regulating the voting age is child’s play compared to regulating free speech.
What are we actually trying to achieve when we restrict freedom of expression? It seems to me that we are attempting to put filters in place to prevent people from hearing or reading certain things and that it is this, rather than preventing people from saying those things that is the imperative. More precisely, the imperative is to prevent other people from hearing things. The restrictions are almost always sold as being for the protection of one group or another. It is relatively rare for advocates of restrictions on free speech to admit that it is for their own benefit. That it is they who don’t want to hear those things. That it is they who don’t have to deal with the implications of what is being said. People tend to be coy about their selfish motives. They will more commonly claim the altruistic motive of seeking to protect some vulnerable group.
Which groups need to be protected. The only group that immediately comes to mind is children and those with intellectual capacities no greater than children. That there exists a social responsibility to protect children is unarguable. They are both valuable and vulnerable. Protecting them is, even if nothing else, a matter of logic. Apart from children, pretty much any group can claim to be vulnerable and in need of protection. Even the privileged and powerful have been known to make such a claim. Once the claim is made it becomes difficult to deny because the people who would deny it are presented as the people the group needs to be protected against. As soon as the lock of absolute freedom of expression is broken the tendency is towards the opposite extreme, where nobody is allowed to say anything about anyone or anything. Runaway regulation is at least as problematic as absolute freedom of expression.
The danger with any restriction of free speech for the purpose of defending free speech is that the constraints can be weaponised by those who want to restrict free speech for very much less noble reasons. On social media, we see this all the time. Lacking a counter-argument or any way to dispute discomfiting points made by others, individuals and groups either resort to abuse or seek to use the policies of the social media platform operators to silence those making the discomfiting points. They claim to be vulnerable and entitled to protection.
Maybe they are vulnerable. Maybe they are vulnerable to criticism because they are wrong. Maybe they are vulnerable to accusation because they are guilty. Maybe they are vulnerable to exposure because they have something to hide.
Certainly not always, but probably to a greater extent than is commonly acknowledged, the problem is less what is said and more the preparedness of the audience to deal with what is said. By ‘preparedness’ I mean both ability and willingness. The audience lacks the resources to cope with what has been said by formulating a considered response (which may be to simply ignore the remarks) and/or they find it more convenient to hit the ‘Report’ button in the hope (expectation?) that some harassed (or equally indolent?) moderator will just delete the offending comment. Or ‘cancel’ the offending individual.
As is so often the case, education is key. There will always be regulation and legislation governing free speech – if only because regulators and legislators have to justify their existence and remuneration. But I am firmly persuaded that there is at least an equal need to teach people how to be better consumers of media messages. The swords and spears of reasoned, informed debate sure serve enlightenment better than the shield of censorship.
If the right to freedom of expression is complicated then the supposed “right not to be discriminated against” is much less so. Not complicated at all, actually. There is no such right and nor can there be. Discrimination is a fundamental part of human cognitive behaviour. Indeed, it is an essential attribute of life itself. Life may be defined as that process or set of processes within and by which an organism or collection of organisms detect, evaluate and respond to environmental stimuli in such a way as to maintain their ability to detect, evaluate and respond to environmental stimuli. You may note that much of this would serve also as a definition of discrimination. Where there is no discrimination there is no life.
Think about it! When I exercise my vote I discriminate against the British parties and Unionists in general. I also discriminate against Tories and those who embrace similar ideologies. If there was such a thing as a “right not to be discriminated against” then those people would have grounds to challenge my choice. This may be a silly illustration. But it is illustrative, and that’s what matters. We discriminate all the time. Both against and in favour. Consider this! If I was not discriminating against the British parties, would I vote for Pete Wishart?
It is not discrimination that is problematic but discrimination that cannot be justified. The fact that I can easily justify discriminating against Unionists outweighs any difficulty I might have in justifying discrimination in favour of Pete Wishart. He is the beneficiary of my exercising my ‘right’ to discriminate against the other candidates. That ‘right’ is innate. It cannot be legislated or regulated out of existence.
The only negative discrimination anyone can be entitled to protection from is negative discrimination which cannot be justified. Discrimination which is unfair or unjust. Discrimination which is irrational. It is always irrational to discriminate on the basis of something which is meaningless. Something which holds no information cannot possibly be a basis for informed choice. The colour of a person’s skin provides no information whatever about their character or personality or attitudes or abilities. To discriminate on the basis of skin colour is not rational even if it could be sensibly argued that it is not unfair or unjust.
Discrimination on the basis of the colour of a person’s clothes is not irrational and may be perfectly legitimate depending on the context. The difference between skin colour and clothing colour is that the latter is a matter of choice and the former is not. It is by a person’s choices that you will know them, not by those characteristics which are inherited.
If this is a long read then blame Joanna Cherry. She’s the one who provoked these thoughts.
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