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Déjà vu. Goldsmiths 2015, University of Michigan 1992

In Feminism, Freedom of Expression, From the Vaults, History, Students on February 7, 2015 at 6:24 PM

 This is a cross post. It was originally published on Harry’s Place on February 3rd 2015, 9:00 am

I was struck by a sense of déjà vu when reading Sarah’s post about the cancelling of Kate Smurthwaite’s comedy show at Goldsmiths, University of London. Her post should be read before what I copy below, an extract from a 1992 edition of the New York Times. When will we progress?

New York Times, November 13, 1992, p.B16

Furor on Exhibit at Law School Splits Feminists

Are pornography and prostitution more dangerous than censorship?


The closing of an art exhibit on prostitution two weeks ago has plunged the University of Michigan law school in Ann Arbor into an angry debate about free speech, feminism, pornography and censorship.

Legally, the issue is whether students at the school violated the First Amendment guarantee of free speech by removing from the exhibit a two-hour videotape featuring works about prostitution by five artists, including two former prostitutes.

But politically, the fracas is the latest and most virulent outbreak of tensions between two camps of feminists: those who seek to suppress pornography and prostitution, arguing that they incite sexual violence and violate women’s civil rights, and those who say the anti-pornography, anti-prostitution movement is a form of censorship that limits women’s sexuality and free-speech rights.

…the furor occurred at the University of Michigan, whose law faculty includes Catharine A. MacKinnon, a leader in the fight against pornography…. Carol Jacobsen, the Detroit artist who put together the art exhibit at the request of [Michigan Journal of Gender & Law] staff, has been an outspoken critic of Ms. MacKinnon’s anti-pornography efforts…. Her exhibit… included her own video interviews with Detroit prostitutes, who are referred to as “sex workers” by conference organisers.

When the conference began, she also installed a two-hour videotape featuring five works, including one by Veronica Vera, a former prostitute. Ms. Vera’s work included footage from sex films and a brief clip of her testifying against an anti-pornography measure before a United States Senate committee.

The next morning, that videotape was removed by a group of law students from the journal staff…..“We really didn’t think of it as a censorship issue, but as a safety issue, because two of our speakers said that based on their experience at other events, the tape would be a threat to their safety,” said Bryan Wells, one of the students. “….Seven of us from the journal made the decision to remove the tape, and while I regret that it made people unhappy, I don’t regret the decision.”

Ms. MacKinnon, who stressed that she was not involved in the decision to pull the video, said she supported the students’ action….she said… “If these materials are pornography – and I haven’t seen them so I can’t say – it is not a question of their offensiveness, but of safety and equality for women. Showing pornography sets women up for harassment and rape.” ….

Ms. MacKinnon sees the furor as an attempt to smear her and another speaker at the conference, Andrea Dworkin, a New York writer who has been her ally in years of efforts against pornography.

“My real view, so far as this pertains to me, is that this is a witchhunt by First Amendment fundamentalists who are persecuting and blacklisting dissidents like Andrea Dworkin and myself as arts censors,” said Ms. MacKinnon. “I don’t see it as a fight within feminism but a fight between those who wish to end male supremacy and those who wish to do better under it.”

Civil libertarians say the events illustrate the extremism of Ms. MacKinnon’s views, and how easily they can be used to censor women’s free expression.

“It’s hard to articulate how damaging the femino-censors can be, but this is a perfect example of how the MacKinnon crusade hurts women,” said Marjorie Heins, director of the American Civil Liberties Union’s National Arts Censorship Project. Censorship of sexually explicit material is not in women’s interest. It’s also unconstitutional. Michigan is a state school, and when any government institution removes an art exhibit or book because it expresses ideas some people find offensive, there’s a First Amendment problem.” ….

Several of the students who organized the conference said it has been impossible to get both viewpoints.

“We had a problem as soon as we invited speakers, because some of the key anti-prostitution people accepted on the condition that they wouldn’t speak if there were people from the other side there,” said Lisa Lodin, one of the students who organised the conference. “…Part of the reason we wanted Carol Jacobsen’s exhibit so much was to show the other side, without confrontation.”

Ms. Lodin and several other students said they were so discouraged by the turn of events that they had begun to reexamine their attitude toward feminism.

“This is not women uniting to solve problems,” Ms. Lodin said. “This is just women fighting against each other.”


Free Speech on Campus: Winning the Debate

In Freedom of Expression, Philosophy, Students on February 2, 2015 at 9:20 AM

This is a cross post. It was originally published at Harry’s Place on January 28th 2015, 9:16 am

In order to win the hearts and minds of the campus censors, their sympathisers, and the waverers, it is not going to be enough to win the political debate: the philosophical debate also has to be won. Appropriating a term used in a different context by Sophal Ear, the Standard Total Academic View (STAV) on free speech has to be defeated on its own terms. And that STAV is against free speech.

Philosophy courses, women’s studies courses, gender studies courses, and other courses are recommending academic books, many of which are well argued, that promote either legislative restrictions on free speech or civil remedies by allowing those deemed “harmed” by racist speech or pornography to be able to sue for damages.

To mention a few important STAV writers, the late Joel Feinberg wanted offence to others to be restricted by the law. He formulated his “offense principle” as follows:

It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury of harm) to persons other than the actor, and that it is probably a necessary means to that end.

Feinberg summed up his own formulation more succinctly: “the prevention of offensive conduct is properly the state’s business.”

Jeremy Waldron is another STAV writer. He makes an appeal to political liberals by invoking the highly regarded twentieth century liberal philosopher,John Rawls. Rawls imagined a “well-ordered” society “in which everyone accepts, and knows that everyone else accepts, the very same principles of justice.” He declared that in such a society “the coercive powers of government are to some degree necessary for the stability of social cooperation.” Waldron accepts that Rawls would have opposed laws that restrict free speech. Nevertheless, he uses what he calls a Rawlsian framework and asks “What does a well-ordered society look like?” He believes it is one where the “public good” that people have their dignity assured exists.

Contra Feinberg, Waldron does not think that offence to others should be legally proscribed. In what he accepts is a difference with a “fine line” he believes that laws that restrict attacks on dignity can be justified. He states:

…not dignity in the sense of any particular level of honor or esteem (or self-esteem), but dignity in the sense of a person’s basic entitlement to be regarded as a member of society in good standing, as someone whose membership of a minority group does not disqualify him or her from social interaction. That is what hate speech attacks, and that is what laws suppressing hate speech laws aim to protect.

One of the most prominent STAV writers in favour of restricting speech, whose arguments need defeating, is Cambridge University’s Rae Langton. In 2013 Langton was inducted into the American Academy of Arts and Sciences. Last year readers of Prospect magazine voted her the eighteenth most important thinker in the world. And this year she will deliver the prestigious John Locke lectures at Oxford University.  In one of her own books, in numerous articles, in online recorded conversations, in various colloquia, and in her submission to the Leveson Inquiry, Langton has banged her drum against pornography and hate speech.

Langton has drawn on the work of Catharine MacKinnon, a law professor and anti-pornography campaigner, and fused it with an argument used in a different context by the late J.L. Austin, the Oxford philosopher noted for his work onspeech acts. By doing so she argues that “certain speech acts can subordinate certain social groups, when they unjustly rank a group as inferior, deprive them of powers and rights, and legitimate discrimination against them.” In herargument, pornography both subordinates and silences women. By subordinating women it “presents a conflict between pornographers’ right to liberty and women’s right to equality.” By silencing women a conflict is created “within liberty itself, between pornographers’ right to speak and women’s.” It is a convoluted argument but she has a number of acolytes marching to her beat.

It is not enough to simply cite the American First Amendment or harp on about the importance of free speech. Winning the debate against those that use the STAV mantra requires more than that because doing so does not effectively respond to someone referring to perlocutionary and illocutionary speech acts. To properly win the debate, one has to demolish the arguments of the would be censors. The debate has to be won on their terms.


Free Speech – From the Vaults – Bernard Levin

In Anti-Zionism, Antisemitism, Freedom of Expression, From the Vaults on January 23, 2015 at 10:28 AM

This is a cross post. It was originally published at Harry’s Place on January 17th 2015, 12:31 pm

In early 1987 the UK Jewish community was in uproar about the play, Perdition, which was due to be shown at the Royal Court Theatre in London. The play was written by Jim Allen, who had been associated with an extremist Marxist group. The controversy is obvious when one considers the author’s own words about the play: “it says quite plainly that privileged Jewish leaders collaborated in the extermination of their own kind in order to bring about a Zionist state, Israel.” (Time Out, January 21-28, 1987). While the play was cancelled because the Artistic Director lost confidence in it, a debate raged in the press about the historical aspects of the play, whether the play was antisemitic, artistic freedom and free speech.

Of all the articles written about the controversy, one of the most eloquently and passionately argued was that by the late Bernard Levin for The Times. (“Waking the dead to revile the living,” February  2, 1987, p.16). He accused the play of a “peculiar vileness” from which antisemitism “oozes.” He said the author had unashamedly reproduced “Stalinist disinformation,” to write a play “littered throughout with inexcusable errors and horrible lies.” Despite these views Levin was a passionate defender of free speech. He concluded his article as follows:

…free speech is for swine and liars as well as upright and honest men. I have insisted that any legally permissable view, however repugnant, is less dangerous promulgated than banned, and I would defend its promulgation even if the opposite were true. I have glorified in the central paradox of democracy, which is that it tolerates, and must continue to tolerate, the activities of those who wish to destroy it.

In all the beliefs I have lived, and I am minded to die in them; how then can I defend the suppression of this play? I cannot, which is not to say that if it had never been written it now should be. But it exists, and ‘He that is unjust, let him be unjust still; and he which is filthy, let him be filthy still.’ With a heavy heart, I yet must say it: Let them have their play.

It is a shame he is no longer with us.

UCL Student Union ban Nietzsche Club

In Freedom of Expression, Libertarianism, Marxism on June 9, 2014 at 12:15 PM

This is  cross-post. It was originally published at Harry’s Place on June 6th 2014, 5:40 pm.

The policy of “No Platform for Racists and Fascists,” historically adopted by many student unions, is ideologically appalling. Not only is it an affront to the doctrine of free speech, it has been thoroughly abused by its supporters. Anybody that they do not like can be targeted for banning. The latest successful attack is on the Nietzsche Club at University College London.

UCL Student Union have passed a policy to “ban and otherwise prevent the installation of any further publicity of [the Nietzsche Club] around UCLU buildings, and to urge UCL to adopt the same policy in the university buildings.” They have also resolved to “reject any attempts by this group to seek affiliation and official recognition from UCLU as an official club or society.” A further resolution passed is to “prevent any attempts by this group to hold meetings and organise events on campus.” However, this latter resolution is pending implementation subject to a professional opinion on its legality. Irrespective of the legal opinion, following the other resolutions passed, the Nietzsche Club will not be able to advertise their meetings in the Student Union or book a room to hold a meeting in the Student Union. In the language of student union politics, this is an effective ban.

The Student Union believe that “this group is aimed at promoting a far-right, fascist ideology at UCL” and that “there is no meaningful distinction to be made between a far-right and a fascist ideology.” There is no question that it is Marxist inspired political views behind this policy. The motion tells us that “the root cause of fascism [is] capitalism” and hence the fight against fascism is really one for a “socialist transformation of society.”  Moreover, among the crimes, according to UCLU, of Nietzsche, Heidegger and other philosophers that the Nietzsche Club wish to read, are that they are “anti-Marxist [and] anti-worker.”

There is no need to comment on the political views of the philosophers that the Nietzsche Club wish to read. Even if they are fascistic, that is no reason to ban groups who wish to read their works. It seems to me a small political step from UCLU wishing to ban the Nietzsche Club to wishing to march into UCL’s libraries, pulling books written by Nietzsche from the shelves, and burning them. At any rate, one wonders what UCLU wish to do with UCL’s own academic departments that teach Nietzsche on accredited courses for students. Does the Student Union wish to close down the courses and hound the lecturers from the College?

Nobody should be the slightest bit surprised that Marxists are behind the  hideous motion. Sam Bayliss, who proposed the motion, is a self-declared active member of UCLU Marxist Society and Timur Dautov, who seconded the motion, is the president of the very same Marxist Society. In hisTwitter biography Dautov admits to being a supporter of Socialist Appeal UK and the International Marxist Tendency, follow on organisations from the Militant Tendency, the Marxist organisation that caused mayhem in the Labour Party in the early 1980s. Marxist organisations are notorious for using and abusing the “No Platform” policy. In the past, the Socialist Workers Party used such a policy to ban Jewish Societies on the grounds that they were Zionist and hence racist.

The irony is that if any societies should be banned for promoting dangerous ideologies, after genocides in Communist countries in the twentieth century causing tens of millions of deaths, those that champion the ideology of Marx and Lenin should be high on the list. But surely, rather than banning either the Nietzsche Club or the Marxist Society, it is far better to champion free thought and free speech in our academic institutions.

Boris Johnson: Enemy of Freedom

In Freedom of Expression on February 28, 2013 at 11:39 PM

The story is reported by Sky News:

A Christian group has launched a battle “for free speech” against London’s Mayor, Boris Johnson, after he banned its adverts claiming gay people can be “cured” from buses.

Mr Johnson said the ads by the Core Issues Trust could offend gay people and spark retaliation against the wider Christian community.

The advert in question reads:


I concur with the sentiment that the advert could be perceived as offensive by the gay community. What I disagree with is that offense, in itself, is reason for banning the advert. Who says that people have a right not to be offended or that someone has no right to offend?

The consistent logical position of someone who wishes these adverts banned because they offend gay people is that Salman Rushdie’s The Satanic Verses should be banned because many Muslims are offended. The floodgates will be open for any minority or even majority group to express horror at something and claim they are offended and demand it banned. One can ask Boris Johnson how he would react to a concerted campaign by church groups to pressure him to use his position to ban Gay Pride, a march through London celebrating gay culture, because Christians are offended. In order to ban the Core Issues Trust advert because of offence caused but not gay pride for a similar reason, the Mayor would have to tie himself up in knots trying to justify his position.

Nick Cohen comments in his latest book, You Can’t Read This Book: Censorship in an Age of Freedom, [(Fourth Estate, 2012), p.229], that J.S. Mill’s principle from his 1859 essay “On Liberty,” one whereby people have the right not to be harmed, has gradually been replaced with what the philosopher Joel Feinberg called the “offence principle,” whereby societies can punish people just because they are offended.

In the case of the bus advert, nobody is physically harmed by an advert that suggests gay people can be cured. They are just offended and offence should not be a crime or reason for censorship. If the advert was an incitement to violence then that is a different matter, but it does not seem to me that the words on the advert can be interpreted, even loosely, as inciting violence.

A separate argument can be made that the Core Issues Trust does have freedom of speech but that right does not extend to insisting that Transport for London carries its adverts. I would accept this argument if buses run by Transport for London acted in a competitive world with other bus companies, but it doesn’t. Because of its unique position as the bus operating company in London and because of subsidies that Transport for London receives, it loses the right to act solely at the whims of those in charge of the organisation and must consider its role in society. It should treat people fairly. It accepted an advert from the gay rights pressure group, Stonewall, that stated, “SOME PEOPLE ARE GAY. GET OVER IT!” It should therefore accept the advert from Core Issues Trust.

Hat Tip: RG

Selling the Nazi Flag

In Far Right, Free Market, Freedom of Expression on May 16, 2012 at 7:16 PM

This is a cross post of the main part of a post originally posted at Harry’s Place on May 16th 2012, 7:55 pm

The Independent is currently running a debate on the selling of Nazi flags.

The problem I wish to highlight is the actual question up for debate. The headline of the article poses the question: “Should Amazon be selling Nazi flags?” Yet, in the article, the introduction poses the “crucial question” as follows: “should flags that represent a racist and offensive ideology be up for sale?” These are two different questions. If the second one is the actual question that John Rentoul and Matthew Bell were posed, then the question is not worded in a way that makes it clear what is exactly being asked. Does it mean that Nazi flags should be banned from sale or does it mean that businesses should freely choose not to sell Nazi flags? The lack of clarity in the question does not make answering it with a simple “for” or “against” easy. Finally, at the end of the article, a third variant is posed: “do Independent readers agree or disagree with the sale of new Nazi flags?”

John Rentoul answers “For” but without knowing the question it is unclear to what. He certainly seems to be for the sale of Nazi flags and suggesting that the sale be ridiculed. However, he does not discuss Amazon as an outlet for their sale. What he actually says is this:

It is easily mockable that Amazon lists Mein Kampf as something “frequently bought together” with a swastika flag, but once someone suggests banning the sale of books, we can surely see that a line has been crossed into curtailing freedom of expression.

The implication from this sentence is that either Amazon sells the flags or the sale of the flag is banned. This is not the answer I would give. What I would say is that there is no curtailing of freedom of expression by Amazon not selling the flags: the flag manufacturer would have every right to advertise the flags on its own web site and sell them there or they could try and locate a different retailer for the vile product. And, indeed, this is my position: I would not ban the flags from being sold but I would hope that retailers such as Amazon refused to facilitate their sale.

Matthew Bell has also answered the question for the Independent and his answer to the mysterious question is “Against.” But what he is actually against, I am not sure, and nor, it seems, is Norman Geras. Bell ends his contribution as follows:  ”[D]o we want to live in a society where you can pick up a new, giant swastika flag with your weekly shop? Probably not.” But he declares earlier: “And as with any other trade, making it illegal won’t make it go away, it just pushes it underground.”

You Ought To Read This Book

In Book Review, Freedom of Expression on March 9, 2012 at 10:00 AM

This is a cross post by Michael Ezra. It was originally posted on Harry’s Place on March 9th 2012, 9:30 am.

Book Review

Nick Cohen, You Can’t Read This Book: Censorship in an Age of Freedom (Fourth Estate, 2012) 330 pp.

Nick Cohen has something to say and You Can’t Read This Book is the edifying result of his determination to say it. Cohen is a worried man; he worries about our freedom of expression. The wealthy can silence us with libel actions too expensive to defend, the courts can gag us, and if religious extremists threaten our lives, we can no longer rely upon the liberal left for support; we are not as free as we could or should be.

On February 14, 1989 the Supreme Leader of Iran Ayatollah Khomeini issued a fatwa, (a religious ruling) calling for the death of the British novelist Salman Rushdie because his book, The Satanic Verses, supposedly insulted the Prophet Muhammad. For this, Rushdie, “along with all the editors and publishers aware of its contents” deserved to die. “The attack on The Satanic Verses,” Cohen writes, “appalled liberals.”

Khomeini issued the fatwah so that no one would “dare insult the sacred beliefs of Muslims henceforth.” The Rushdie Affair was a defining moment in the history of our modern right to freedom of speech: it was when the tenets of Islam became a subject that not even the “edgy” alternative comedians of the 1980s, who had built a new genre of comedy around attacking traditional institutions like the monarchy or Church of England would touch. It was fear, pure and simple.

In September 2005, Jyllands-Posten, a Danish newspaper, breached the taboo and published cartoons depicting the prophet Muhammad – sacrilegious in Islam. After the cartoons were reproduced in newspapers across Europe at least 139 people died in the resulting protests. Salman Rushdie, however, was still alive; and to some, that was the problem. “If there had been a Muslim to carry out Imam Khomeini’s fatwa against the renegade Salman Rushdie,” said Hassan Nasrallah, leader of the Islamist group Hizbollah, “this rabble who insult our Prophet Muhammad in Denmark, Norway and France would not have dared to [publish the cartoons].”  In his view there was not enough fear – but there was plenty: not one national newspaper in the UK dared to reprint the cartoons. The Rushdie affair had caused enough trouble; freedom of expression it seemed just wasn’t worth the grief.  Meanwhile, in America, Cohen tells us that US networks banned images of Muhammad, by claiming that they were “liberals who wanted to display their respect and tolerance.” But as Cohen also tells us, this wasn’t entirely true. Matt Stone, a creator of Comedy Central’s South Park, was blunt. It wasn’t liberalism that stopped them: it was their fear of getting blown up. “That’s what you are afraid of,” he said. “Comedy Central copped to that, you know: ‘We’re afraid of getting blown up.’” Because of the silence surrounding the true reasons for censorship, Cohen argues, the enemies of liberalism are strengthened – twice over.

Even the supposedly judicious world of academia wasn’t immune. In an academic book devoted to the controversy, Yale University Press refused to republish the cartoons (bad enough in itself), but the reason Yale gave for its decision not to publish the cartoons was even more instructive: it didn’t want “blood on its hands.”  And so the blame for violence was shifted from perpetrator to victim; a slippery line of reasoning akin to a teenage girl too scared to wear a short skirt in case she provoked her own rape, which she would be “asking for.” Cohen provides detailed descriptions of many of the cartoons, but his book does not reproduce them. I have no idea if Cohen would have liked them in the book, but the question is academic as the truth is that there is more chance of me having a night of wild sex with Natalie Portman than there is of Fourth Estate, Cohen’s publishers, agreeing to republish the Danish cartoons.

Betrayal.  Ayaan Hirsi Ali was a young girl from a Somali family when she suffered female genital mutilation. It was just the beginning of a life she didn’t want and she eventually managed to escape a forced marriage, and flee to the Netherlands where she was granted political asylum. She learned to speak Dutch and graduated from a Dutch university. Rejecting her Muslim upbringing, she embraced atheism and liberalism and a political life. Highly critical of the treatment of women in Islamic society, she wrote the script of a short film on the subject, Submission, produced by Theo van Gogh; a classic story of female emancipation.

Then the death threats arrived. An Islamic extremist murdered Van Gogh and a warning was issued that Hirsi Ali would be next.  Surely the left would support a feminist, secular woman who had suffered so much, and was now threatened with murder? No. Instead there were leftists and liberals who denounced her. She had, some argued, endangered the security of the Dutch people. A leading figure in the Dutch liberal party declared her a bogus asylum seeker, who should be stripped of her citizenship. “Rejected by the Dutch leftists and the Dutch Liberal Party,” Cohen explains, “she eventually found a home at the neo-conservative American Enterprise Institute in Washington DC…. when her natural allies abandoned her, their opponents were the only people who would take her in.” Here the reader may notice a certain similarity between Hirsi Ali and Cohen himself. Because of his own principled stance, refusing to see the triumvirate of the United States, Britain and Israel as an axis of evil, Hamas and Hizbollah as heroic resistance movements, and Islamists such as Tariq Ramadan and Jamal al-Banna as voices of moderation, he found his own ostracisation by many on the left. Cohen grew up on the left. In his 2007 book, What’s Left? he wrote of his belief, age 13, that “to be good, you had to be on the left.” He now writes for the Spectator and Standpoint. Fine journals but hardly bastions of left wing thought.

I do not agree with all Cohen’s opinions. He paints a distorted picture of the credit crunch of 2008 and I raised my eyebrows when reading his judgement that “Sensible countries should treat banks as if they were hostile foreign powers.” But he nonetheless uses the financial crisis to make a valid point: the difficulty employees have in speaking up against their employers. He does not use this acronym, but “CLM” comes to mind, “career limiting move,” the practical effect of criticising a superior. It is not simply hyperbole for Cohen to suggest that the workplace is a not a democracy but a dictatorship. The risks associated with criticising a boss can lead to loss of a job; the rewards, even if the criticism is justified, are not sufficient to make doing so worthwhile.

If internal criticism of a company’s policies or procedures is hard, going public is even harder. In some cases it can even lead to a prison sentence. While there is legal protection for whistleblowers, in practice it is not so simple. Even if a whistleblower acts morally and correctly, his career may be irreparably damaged as finding work elsewhere may be very difficult. Who wants to employ a troublemaker?

Cohen also inveighs against the English libel laws. Writers, editors and publishers in England and Wales operate in a legal jurisdiction where the mere threat of a libel action can cause panic, an apology and a retraction. The truth of what has been written is almost irrelevant; what matters, asLaurie Penny recently put it, is “whether or not it is actionable.” As an example, one can consider what happened when the Sovietologist, Robert Service, sent out an email in 2010 linking fellow academic Orlando Figes, to hostile online anonymous book reviews. The linkage was accurate, but difficult to prove.  When Figes initially denied the link and got his lawyers involved, Service, in his own words, was left both “terrified” and “a gibbering wreck.” According to Rachel Polonsky, a third scholar, and someone with who Service had discussed the online reviews, Service was so “terrorised” by the possibility of libel action that he thought “he would lose his home.”   Deborah Lipstadt successfully defended her case against David Irving – she had described him as a Holocaust Denier, a bigot and a falsifier of history – but not before the defence costs had approached £2 million.  Service’s fears were not unfounded.

The costs associated with a libel action in England and Wales are so high, 140 times the European average, that “I’ll sue you… in England”, a line used in the American comedy show South Park, no doubt garnered recognizable laughs from its viewers. There is no certainty that full costs are awarded to the winner of a libel case or can be paid even if they are. Someone libelled might win their case but lose financially because the damages and costs recovered are less than the costs incurred.  Cohen reminds us that “President Obama signed a law that stated that the US courts should not enforce the orders of English judges against American authors,” – an appalling indictment of English libel laws.

Gagging orders or “super-injunctions,” are also available to English courts to stifle free speech. But perhaps their example also offers hope. An English court ruled that Ryan Giggs, a Premier League soccer player, could not be named as the celebrity involved in extra marital sexual relationship with a glamour model and reality television star. Tens of thousands of users on Twitter made a mockery of the gagging order by promptly naming him. If the English courts think that a 13 year old sitting in an internet café in Hong Kong with an anonymous Twitter account cares about their rulings as to what can and cannot be published, they fully deserve to be derided.

But one can only shake their head in wonderment reading Cohen’s account of what happened to Paul Chambers as a result of an obviously non serious Tweet. Annoyed that snow had grounded all flights, he Tweeted: “Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!” As Cohen correctly states, the Tweet is no more a serious threat than a comment such as “I’ll strangle my boyfriend if he hasn’t done the washing up.” The myrmidons of English justice thought differently. Chambers was arrested in his workplace, taken to court, found guilty of sending menacing messages over a public telecommunications network and fined £1,000. He lost two jobs as a result of the series of events. Readers might be forgiven for wondering at what point Voltaire’s Dr. Pangloss would show up to tell Chambers that this was necessary for “the best of all possible worlds.”

“It is not what you say but where you say it,” Cohen declares as important, before arguing: “The freedom the net brings is illusory if it confines writers to working under pseudonyms in obscure corners of the web. Writers who wish to be heard must break from the fringe into the mainstream by arguing for their ideas in the open.”  My preferred formulation is that it is not where you say it, but who reads it that is important. This means that an obscure corner of the web can be an effective place to say something if it is read by an influential person who has the ability to bring the argument to a wider audience.

Now, it is true that it should be far more likely that someone writing in the mainstream will be heard by the influential than someone writing in the fringe, but it is not necessarily the case. Anonymous Twitter users in repressive regimes can attract the attention of writers and activists in the West. Nasrin Alavi, for example, brought together translations from the writings of Iranian bloggers in her 2005 book, We Are Iran, raising awareness of the issues facing Iranians.

A book is far more enjoyable if it is well written. Cohen can certainly write.You Can’t Read This Book is accessible and erudite. There are not many writers who, in a single book, can discuss the Peloponnesian War, comment upon Xenophon and Plato’s view of Socrates, give an opinion on Karl Marx’s beliefs in the inevitability of the proletarian revolution, and quote the Bible’s Leviticus, William Shakespeare, John Milton, Mary Wollstonecraft, William Wordsworth, Honoré de Balzac, John Stuart Mill, George Orwell, Saul Bellow and Joel Feinberg, while, at the same time, having the chutzpah to use the phrase, “fercockt Western putzes.” The late Christopher Hitchens, to whom the book is dedicated, was one; Nick Cohen is another.

Can Congress Criminalize a Lie?

In Freedom of Expression on March 2, 2012 at 6:30 PM

This is a cross post by Michael Ezra. It was originally posted on Harry’s Place on February 27th 2012, 10:00 am

The New York based law firm, Garson, Segal, Steinmetz, Fladgate LLP, (GS2Law) brings to my attention a very interesting case recently heard at the Supreme Court. The case is that of the United States vs Alvarez. It arises because of the Stolen Valor Act, whereby it a federal crime to falsely represent that one has “been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item.”

Xavier Alvarez lied about a number of matters. For example, as GS2Law explain, he lied “that he rescued the American ambassador during the Iranian hostage crisis” and “that he was married to a Mexican movie star.” To lie about such matters are not criminal, they are just lies. However, Alvarez also stated, “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” This lie was deemed to a federal crime and deserved of being punished with 416 hours of community service, a fine of $5,000 and three years probation. Alvarez appealed and won, but the government were not satisfied and took the case to the Supreme Court.

In my opinion it will be a disgrace if the U.S. government wins this case. There are limits of freedom of speech. The most famous example is that one cannot without justification shout “Fire!” in a crowded theatre. Another is that a company cannot make false claims about its products in advertising. There are other examples but as GS2Law explain, “in each of those situations, there is a clear ‘harm’  that results from the speech.”  It is more difficult to say who has been harmed by someone falsely claiming to be a military hero. While the answer to this can be argued to genuine military heroes, it does not seem to me reasonable that this is worthy of a federal crime.

In the United States, under the First Amendment, there is substantial freedom of speech: neo-Nazis can deny the Holocaust, antigay activists can disrupt funerals and the President of the United States can be denounced as terrorist. Given this, I concur with the view expressed by the Los Angeles Times:

If Alvarez had lied about his military record to obtain money, he would have been  guilty of the eminently prosecutable crime of fraud. But in itself a  pathetic claim to military glory — a claim easily debunked by a visit to the Internet — isn’t the sort of statement a free society should criminalize.

In his recent book, You Can’t Read This Book, Nick Cohen reminds us that the libel laws in England have so little respect in America that “President Obama signed a law that stated that the US courts should not enforce the orders of English judges against American authors.” I cannot say I blame Obama for this action. But at the same time, there is no reason why, when it comes to matters of freedom of speech, we in England cannot point our fingers to the Americans and say to them, in the event the government wins this case, “Tu quoque.” Of course, such an argument should not be used to justify the fear of speaking out in England due to our own oppressive libel laws, but it might make Americans realise that their own so-called freedom of speech can be called into question.

The Death Penalty for a Tweet?

In Freedom of Expression on February 11, 2012 at 6:47 AM

This is a cross post by Michael Ezra. It was originally posted on Harry’s Place on February 10, 2012, 11:55 pm

The quote below is from an article, published today, by Freedom House:

Freedom House is deeply concerned about the detention by Malaysian authorities of Saudi writer Hamza Kashgari, who fled Saudi Arabia to escape death threats for allegedly insulting the prophet Mohammad on Twitter. The 23-year-old Kashgari is at imminent risk of extradition to Saudi Arabia, where he faces charges of blasphemy that can carry the death penalty.

On Saturday, February 4, Kashgari posted a series of introspective tweets about the Prophet Mohammad on the prophet’s birthday, prompting personal attacks on social media from Saudi citizens and religious figures, and calls for his execution. Although Kashgari removed the posts and apologized for any offense, the Saudi government issued an official call for his detention, prompting him to flee the country. He was detained February 9 in the Kuala Lumpur airport after Saudi officials tracked his travel plans. He has been denied access to legal counsel during his detention in Malaysia, which also has anti-blasphemy laws that carry severe penalties….

The Saudi government has put out a warrant for Kashgari’s arrest, which reports say came directly from the King, and its Fatwa Council has issued a fatwa, or religious edict, calling him an apostate and calling for his prosecution. His Twitter feed has been deleted, although it is not clear by whom.

Paul Chambers might count himself lucky.