Freedom of speech should not be restricted lightly

Although debates about freedom of speech are not new, the form they take now seems to be more vindictive than hitherto.

Two recent case cases illustrate the point. Earlier this month, it was announced that the sociology professor David Miller had been sacked by the University of Bristol. The official reason was that his lectures about Israel, Jews and Zionism “did not meet the standards of behaviour we expect from our staff”.

His disciplinary hearing included a third-party investigation by an unnamed Queen’s Counsel who found that Miller’s comments “did not constitute unlawful speech”, but he was sacked anyway because of some unwritten rule about his “duty of care to his students”.

In the same week, students at the University of Sussex demanded the sacking of feminist professor of philosophy Kathleen Stock because her views about women are allegedly transphobic. The university’s vice-chancellor, Adam Tickell, supported her right to free speech over women’s rights versus “trans-rights” or gender identity. However, the local University and College Union branch was subsequently more equivocal, insisting that it was against calls “for any worker to be summarily sacked” but also calling for an investigation into “institutional transphobia” – prompting Stock to claim that it had “effectively ended” her career at Sussex.

It is important to set these events in context. The right to freedom of expression, and the concept of human rights in general, is under attack. Right-wing populists such as Jair Bolsonaro, Donald Trump, Narendra Modi and Victor Orbán have found common cause with religious conservatives to deride the notion of fundamental individual rights. Yet, rather than defend them, many critics on the Left also deride rights as Enlightenment-inspired, Eurocentric figleaves for racism, sexism and imperialist apologism.

No doubt both sides of the arguments in both the Miller and Stock cases would claim to be defending human rights. However, the issue at Bristol is that an extreme action – the sacking of a prominent academic – was taken in a context where the “crime” is unclear.

Hate speech is recognised (and outlawed) in English law, but the concept is also commonly used in a non-legal context to designate any speech that is degrading, insulting, defamatory, negatively stereotyping or liable to incite hatred or violence against any group of people by virtue of their race, religion, nationality, sexual orientation or disability, for example. Both Miller and Stock engaged in such speech, their opponents allege.

The expression “hate speech” was coined by a group of US legal scholars in the 1980s. They noted that different legal systems tackled harmful racial discrimination variously. When Mari Matsuda used the term in 1989, her central purpose was to highlight how the US legal system failed victims of harmful racist speech by providing them with inadequate means of seeking redress, civil or criminal. She cited several legal cases and examples not associated with actual legal proceedings and not easily actionable under the existing laws.

The concept of hate speech has been taken up by a range of people on the Left to condemn people they believe are misogynistic, racist or xenophobic and who, therefore, violate ideals of respect and tolerance. But it is also used by evangelicals to critique liberals who they regard as attacking their conservative beliefs.

Hence, the philosopher Caleb Young suggests that “hate speech” is too broad a term to be usefully analysed as a single category. It includes many kinds of speech acts, each of which involves very different free speech interests that may cause different kinds of harm. Young distinguishes four main categories of “hate speech”. Miller’s pronouncements seem to fall into his concept of “organised political advocacy for exclusionary and/or eliminationist policies”, while Stock’s seems to fall into “targeted vilification”. But neither are illegal.

Sacking Miller for making legal pronouncements risks eroding the human right to free speech. It also risks disrupting the process that underpins that Right’s rationale: allowing ideas to flourish and deriving truth, autonomy and justice to emerge from the healthy debate that ensues.

Regulating legal “hate speech” could also be regarded as damaging to democracy, especially if even universities shy away from such debate. According to free speech advocates, students ought to be encouraged instead to debate opinions with which they disagree. This is precisely what Stock’s defenders have argued, and it is hard to disagree.

In Miller’s case, although we are not privy to the exact statements considered by Bristol, there seems at least to be some controversy over what was said. Miller has claimed that he made factual claims about pro-Israel groups in the UK, which were misinterpreted as conspiracy theories about Israel and Jews and therefore mislabelled as antisemitism.

While we disagree strongly with many statements made by Miller, and particularly object to what we understand to be his didacticism, we believe that sacking is too extreme a punishment given the ambiguities surrounding what he actually intended to say and surrounding what counts as hate speech.

We sympathise with the students’ concerns, especially with regard to being able to express their disagreement with him. But we believe that these could all have been dealt with by less stringent and irrevocable a measure.

If rights and democracy are to survive the attacks on them, we must only curtail freedom of speech when its hateful intentions are unequivocal and codified in law.

Alison Assiter is professor of feminist theory at the University of the West of England and author of A New Theory of Human Rights: New Materialism and Zoroastrianism (Rowman & Littlefield, 2021). Miriam David is professor emerita of sociology of education at the UCL Institute of Education.