Freedom of Hate?

This is an older post from the 21st Floor, but I am reposting as it is relevant to a discussion I’ve had recently

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If I walk up to a black guy and say “I fucking hate you, go back to the country you came from, you’re stealing my job, fuck off” and he punches me, I can’t start crying “My freedom of speech has been infringed upon!”.

Freedom of speech does not mean you can say what you like, how you like, when you like, to whoever you like, in any manner and style you like as long as you are not violent.  If it did then no school yard bully could ever been pulled up, no work related bullying could be pulled up, because the bully could hide behind “Freedom of Speech!”.  Freedom of speech means you have the right to express your views and opinions, however distasteful, and not fear retribution from the government or associated bodies.

Here is Wiki’s definition of Free Speech Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, such as on libel, slander, obscenity, incitement to commit a crime, etc.

The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that “[e]veryone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Article 19 goes on to say that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “[f]or respect of the rights or reputation of others” or “[f]or the protection of national security or of public order (order public), or of public health or morals”

Should the racist tram lady have been arrested?  Yes.  But not simply for holding or expressing her views.  She is entitled to them and that is her right to free speech being infringed upon if she is arrested for expressing those views.  She is entitled to express them- read the Daily Mail comments section, hundreds of people expressing the exact same sentiment and not fearing retaliation everyday.

So what is so different with this incident?

For me this isn’t about what she said.  Not at all.  It’s the manner and situation in which she said it.  Her views are irrelevant.  She could have been spewing bile at the Smurfs.  “Those little blue bastards who go out of their way to cause trouble for humans and are clearly a bunch of queers!” for example.  And I would still agree with an arrest (though probably more with her being sectioned to be honest)

Look again at the definition given above from wikipedia.  Freedom of Speech does, and quite rightly have limitations.  If this woman had been part of a march, if she had been writing into the Daily Mail, if she had been standing on a soap box in the middle of St Andrew’s Square I would be right behind her.  But this is not what happened.  For those of you who are unaware of what this is about, check out this video.

 

There are several problems with how she went about using her free speech.  The most important aspect is she is expressing her free speech to a captive audience.  This is a tram.  Without getting off you are stuck listening to her ranting.  Even going into another car is no guarantee that you can escape the tirade.  Certainly in the US you are restricted in your free speech if it involves a captive audience- such as students.  There have been many examples recently of schools being forced to stop prayers, or remove imagery from class rooms as the speech and imagery is being presented to a captive audience who are unable to move away violating the separation of Church and State showing that some laws and conditions trump the right to free speech.  If there is a protest, you can move away and there are police around for protection.  If someone is on a  soap box you can move on, if someone writes into the Daily Mail you can stop reading (Why would you be reading the Daily Mail anyway?).

Even aside form any criminal act, she has certainly violated the terms and agreed upon conditions of travel.  Trams are privately owned and operated for the use of the public.  Here in Edinburgh Lothian Buses are going to be operating the trams.  In London it’s Tramlink.  And in the Tramlink conditions of travel we have this on page 13:

Antisocial behaviour includes, but is not limited to:

  • • Putting your safety or the safety of others at risk
  • • Use of offensive or threatening language”

Usually this may only result in the loss of your travel rights.  Not as harsh as an arrest, but certainly anti social behaviour is an arrestable offence even if not something Tramlink will prosecute for.

Then we have the fact that the comments were aimed directly at fellow passengers.  This wasn’t a generic expression of free speech, this was directed and abusive.  This isn’t about offence (although causing offence is one of the conditions under which free speech can be revoked, though I think that a little extreme because how do you measure offence?  It’s subjective).  The language would not be tolerated if this were being used against a colleague at work for example.  It would constitute bullying, and just because she isn’t stealing anyones lunch money doesn’t mean she isn’t behaving in a bullying manner.

It could also be argued, especially taking in to account that at least one passenger has to be restrained, that the way in which she was composing her self could be seen as encouraging violence.  Her behaviour is such that there is a very real risk of violence breaking out.  That is another area where free speech has to be restricted- when it could cause harm.  John Stuart mill said “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” You could also argue that there was a potential risk to the child in her lap if any trouble did break out.  This paragraph is conjecture I admit, but it is also a realistic potential outcome.

Despite a Guardian article effectively dismissing Breech of the peace as a legitimate charge, it is a legal violation none the less.  Her actions would be construed as a breech of the peace and at the very least she should be charged with that.  People hide behind free speech as if it gives them the right to impose themselves on others in any way they like.  It doesn’t, and it carries with it certain responsibilities.

Finally I would like to add that I support her right to free speech, however this is more than just a free speech issue and I find the content of her speech to be irrelevant to the arrest- though certainly there are some race laws that may beg to differ.  We also must ask, when does her right to freedom of speech end and the rights of those on the tram to conduct their daily business without fear of abuse or intimidation begin?  Does one right trump the other, if so how do we decide?  If she has been arrested and is to be charged SOLELY on the fact that she expressed her opinion I would call that Orwellian and join the voices of those condemning the arrest.  However, there is much more to this then her right to free speech.  And I feel I need to point out again that this is more than just a free speech issue.

I will end by quoting from the earlier article on Human rights “the exercise of these rights carries “special duties and responsibilities

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