The Snares of Hate Speech: John Stuart Mill and Offence

Graham Hill's picture
Submitted by Graham Hill on Wed, 2020-04-29 22:11

Amongst all the Engines of Dissention, there hath been none more powerful in all Times, than the fixing Names upon one another of, Contumely and Reproach, and the reason is plain, in respect of the People, who tho' generally they are incapable of making a Syllogism or forming an Argument, yet they can pronounce a word; and that serveth their turn to throw it with their dull malice at the Head of those they do not like; such things ever begin in Jest, and end in Blood, and the same word which at first maketh the Company merry, groweth in time to a Military Signal to cut one another's’ Throats.

These Mistakes are to be lamented, tho' not easily cured, being suitable enough to the corrupted Nature of Mankind; but 'tis hard, that Men will not only invent ill Naims but they will wrest and misinterpret good ones; so afraid some are even of a reconciling sound, that they raise another noise to keep it from being heard, lest it should set up and encourage a dangerous sort of Men, who prefer Peace and Agreement, before Violence and Confusion.
George Saville, First Marquess of Halifax (1633 -1695) Preface to The Character of a Trimmer


[I wrote this article last year but with the government moving ahead with "hate speech" legisation out of public view it seemed timely that the article should see the light of day.]

Hate speech, like beauty, is in the eyes of the beholder. Spiked, on 12 June 2019 reported on a BBC 4 ‘talking heads’ Panel Show called ‘Heresy’ panel member, and comedian Jo Bran, and “milk shaking”, which is the throwing of milkshakes at a disliked public figures. Messrs Farage and Tommy Robinson have been ‘milkshaked.’ Ms Bran’s stated: “Why bother with milkshakes when you could get some battery acid.” Acid attacks are appallingly vile and evil with victims being maimed for life. Ms Bran’s off the cuff comment passed from bathetic irony to abhorrent reality, provoking a reaction from the right but off the left’s song sheet. Guido Fawkes called it ‘hate speech’; Mr Farage that she should be reported to the police for hate speech and inciting violence. Spiked thought a tempered and restrained approach was best to avoid right wing ‘snow flakery.’ That is an idea that comes from J S Mill in On Liberty where the non-prevailing discourse must act with civility and restraint.

The spat between Golriz Ghahraman and David Seymour, in May 2019, over the Minister of Justice’s proposed hate speech legislation also illustrates points made by J S Mill. Ms Ghahraman is empowered by being in government: he is not. The dispute concerned whether Mr Seymour had incited violence against Ms Ghahraman to the extent she needed a security escort. In supporting legislation to control of freedom of speech, Ms Ghahraman had stated “… it is vital that the public is involved in a conversation about what speech meets the threshold for being regulated and what mix of enforcement tools should be used.” Mr Seymour was expressing his opinion about her comments. He said, “I believe [i.e. his opinion] that such an idea, and by extension politicians who promote it, is a danger to our free society.” The best that can be said of Ms Ghahraman ‘s allegation was that it exemplifies Mills comments (as we will see) on sophistry, the omission of facts and was a mischievous form of political special pleading to beat up on an opposition MP. Both right-wing, Kiwi Blog, and left-wing The Daily Blog were on the same page and voiced their disapproval- a purpose of free speech- calling out the falsehood. Karl Du Fresne in his Blog (22 May 2019) puts the position clearly: Free and open debate is not hate speech. Ms Ghahraman has fallen foul of Mill’s observations: the contradiction is not offensive but the person contradicted may believe that it is and will react with labels, vituperation and, in this case, histrionic allegations.

Not all comments as we have just noted share in “equity” or merit equality of thought. Some targets are fair game- in the Salon game of ridicule and contempt- others not. Examples abound. The Urban Dictionary’s pseudo anthropological descriptions of Chav’s; “Pleb or “Prole bashing” as evinced on ITV’s The Jerry Kyle Show, of social prejudice and “bear baiting”, now pulled after the suicide of a person subject to ridicule; Australian sites on WA Bogans; or more subtlety HBO’s Real Time with Bill Mayer featuring Alexandra Pelosi’s ‘Poor White Conservatives from Mississippi’, is an entertaining sport of contemptuous ridicule by beltway elites. The characterisation is also seen with Brexiters and, of course, Trump supporters were stigmatised by Hillary Clinton as “…the basket of Deplorables.” On this stereotyping Chantal Delsol astutely observes that: “Class contempt is as odious, in itself, as raced based contempt. In Europe, the former is a sport, whereas the latter is a crime. (p 35). The answer for this perhaps lies in J S Mill’s idea of dominant prevailing opinion (discourse) and offence speech. Mill’s views have implications for the efficacy of hate speech legislation.

Accusations of hate speech raise questions about public/social discourse. In this article, I examine observations made by John Stuart Mill on offence speech in On Liberty Chapter 2 (1859). Mill’s observations on the workings of “offence speech” merit examination for anyone reflecting on hate speech legislation. In terms of liberty of opinion, Mill makes a distinction between social opinion and State’s opinion/discourse. Social opinion on hate speech looks likely to be enthralled by the power of the state. Both sides of the debate ought to be taking notice of Mill’s considered thoughts. Behind Mill’s view is the contemporary view about ‘power’ (authority might be the apt term) of a “prevailing dominant opinion.” How can or will legislation address the weighting that dominant opinion has? Brett Weinstein has observed, as does the Marquess of Halifax in the epigraph to this article, that freedom of expression is often confronted with stigmatising labels by power-wielding folk.

Mill saw that there were two forces that confine free speech: First, that of the state and secondly, that of social opinion as ‘received dominant’ opinion. Dominant social opinion is equally pernicious and oppressive as that prescribed by the state. Unquestionably, both may coalesce in actual censorship (or compelled speech as in Canada) and also provoke self-censorship, which is what the foolishness of the King with no clothes is about. Not speaking up leads to poor decision making and adverse risk which Thucydides notes in The Peloponnesian War, Bk 24:6 concerning the debates on the disastrous Sicilian campaign. Self-censorship leads to a shutting down of public/social and also, in my view, private discourse, which I have earlier written about. ( Both lead to a flawed culture of lies, and an inability to resolve matters with truth, which Alexander Solzhenitsyn adeptly analysed and documented. The obdurate adherence to the Five year Plan, leading to the devastating and horrific Ukrainian Famine of 1932 to 1933, "the Holodomor”- extermination by starvation of 6 to 7 million lives, comes to mind. To which no advice, criticism or a contrary view could be tolerated.

Thinking, as Roger Scruton has recently said, is engaging in an act to ascertain what is true. Speech, acts of self-expression derive from thought and ultimately adhere to Liberty of Conscience. Truth is the antidote to errant lies, spin, brand management, misperception and delusional ideas. Yet, truth does not necessarily get ready acceptance. Umberto Eco in, ‘The Force of Falsity’, from Serendipities: Language and Lunacy (1998), shows that falsity can get a good long outing. Several examples suffice the Ptolemaic solar system/ flat earth; the Donation of Constantine; the existence of Prester John; the Rosicrucians/ the Protocols of the Elders of Zion, and the Bavarian Illuminati. The Illuminati still shine and having a showing on YouTube, along with the Anunnaki and aliens on Mars. Eco poses the question of the cogency or strength of truth by citing St Thomas Aquinas: “utum veritas sit forior inter vinium et regnum et mulierrem…” “Which is more powerful, more convincing, more constrictive: ‘the power of the King, the influence of wine, the charms of woman or the strength of truth’?” (p.1) The King’s – the State’s- will has the “power of the command of law” (pp. 1-2) and where society opinion can imbibe in sensus communitas ‘ordinary common sense’ which can be highly prejudiced, bigoted and wrong; and further, as The 3rd Earl of Shaftesbury noted it can be variable, inconsistent and relative.

Mill believed that free speech ought to be temperate, and noted thus. First, he said that of people who want to set a limit on free speech to what is temperate and does not pass fair discussion, setting the bounds of what is temperate and not offensive may be impossible 112). He, secondly, saw an imbalance in the weight of a dominant prevailing opinion against the minority opinion. Thirdly, which side is offence is to be looked for. If from the point of view of the opinion attacked, it is more likely the opinion attacked will find speech offensive. If the “test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful…” (112) and where the opponent ‘pushes hard’, where ‘there is strong feeling’ along with the holder of the opinion finding it hard to answer the questioning or rebuttal, the contrary opinion will be stigmatised as an “intemperate argument” and offensive. Where the assailed view is the dominant prevailing opinion, whether possessing truth or falsity or special pleading, it has the “offence” and falsity chips stacked in its favour against the contradicting minority opinion holder.

The manner of asserting a true opinion may well be objectionable and “justly incur censure” yet lie beyond conviction. But greater opprobrium for Mill must lie when one “argue[s] sophistically to supress facts or argument or to misstate the elements of the case or misrepresent the opposition opinion.” (112) Or, as in, BBC 4’s Cathy Newman’s infamous ‘So what you are saying is…’

What Interrupts discussion, says Mill, is “ invective, sarcasm, personality [ e.g. ad hominem labels] and the like, the denunciation of these weapons would deserve more sympathy if it were proposed to interdict them equally to both sides” (112) This deftly leads to Mill’s assessment of the effects of the dominant prevailing opinion. He saw that offence could not be equally attributed, that:

“…[if] it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation..” (112-113)

The “unprevailing” or minor opinion is subject to the greater harm. The use of invective, often in the form of moral denunciation by stigma (fascist, racist, Male Pale and Stale) gives an exclusive advantage to received dominant opinion at the unfair disadvantage of the minority opinion. The consequence is discrimination and prejudice:

“The worst offence of the kind which can be committed by a polemic is to stigmatise those who hold a contrary opinion as bad and immoral men [and women]. To calumny of the sort, those who hold any unpopular opinion are peculiarly exposed, because they are in general few and uninfluential, and nobody but themselves feel much interest in seeing justice done them; but this weapon is, from the nature of the case, denied to those who attack a prevailing opinion: they can neither use it with safety to themselves nor, if they could, would it do anything but recoil on their own cause …” [112]

Its contemporary form is the same but with an oppressive moralising puritanism. The National Review (15 July 2019), citing Maureen Dowd, puts it this way:

“The progressives act as though anyone who dares disagree with them is bad. Not wrong but bad, guilty of some human failing, some impurity that is a moral evil that justifies their venom…”

The term 'hate' is such a judgment

Stereotypes and stigma have an end in mind, the civil othering and dehumanising of the opponent.
For the minority ‘nobody but themselves’, Mill adds, is interested in seeing justice done. (113) The assertion is aided by Mill’s further observation that the weapons of invective, of crushing opinion, are denied to those who attack the prevailing opinion. Fear of recoil on their own cause is a risk. A risk that is not equally shared. Thus a person may fall to a default stigma of being “unsound” or ‘obsessed’. It may explain why a litigant in person may have no traction (credibility) with a Tribunal, say against a Lawyer, for example, because of ‘default no credibility’ as against the inbuilt credibility default.

From a justice perspective, the minority is hobbled vis à vis the dominant prevailing opinion regardless of the facts, merit and even the law that may support the non-prevailing position. Not everyone can play in Geoffrey Robertson QC’s "The Justice Game" and the cases are not the rule but the exception. Minority opinions are ones easily discriminated against and stigmatised (say with hate speech) when confronting both the weight of dominant social opinion and a win at all costs and whatever it takes the approach, especially when powered by the state.
This in fact does illustrate a Post Modernist point about discourse and power. The dominant prevailing opinion has power which can be fortified as coming from the state, a cabinet minister, and backed by social opinion through a compliant mainstream media. The minority opinion does need to ‘speak to power’, more correctly authority, as Ms Ghahraman has stated, and also to majority common sense. Is that not precisely what Mr Seymour did in his reply to Ms Ghahraman, who is a part of the government, and she has reacted, and with irony, as a dominant discourse member?

Opinions contrary to the prevailing received ones only get a hearing, Mill says, through “civility” by “studied moderation of language” and the most “cautious avoidance of unnecessary offence.” (113) The corollary is that “vituperation from the prevailing opinion is said to deter people from professing contrary opinions and listening to those who profess them.” (ibid) There is a considerable imbalance in the perception and action of ‘offence speech’ that leans to the prevailing opinion and its ‘orthodoxy’ whether true or false. It involves a self-censorship on one side: permissive licence on the other. The minority opinion is at risk in expressing itself of being swamped and stigmatised in a discriminatory manner. Is the weaponised stigmata manifested in a conviction for hate speech? Arguably yes. If so, that directly impinges and trespasses onto the personal liberty of conscience.

How are the interests of truth, let alone justice, met? If there is a palpable imbalance, the puritan moral foment exacerbates that imbalance. The restraint of vituperation from the prevailing opinion is needed above that of minority contrary opinion. The latter will it seems to defer to restraint out of fear of recoil according to Mill.
We should not, says Mill, condemn a person regardless of the side of the argument, because of the mode that is used in advancing an opinion or because of lack of candour or of malignity, bigotry or intolerance is evidentially manifest. Such characteristics (vices) should not be used to infer what side of an argument a person is on, despite it may be contrary to our own. It is a tool of the dominant prevailing social discourse. It is doubtful that hate speech legislation can remedy the underlying aspects that Mill raises. Hate speech legislation is a weapon in the hands of a dominant discourse to quell contrary opinion and stigmatises and prejudices its proponents.
Mill says:

“It is, however, obvious that law and authority have no business with restraining either [vituperation and offence], while opinion ought, in every instance, to determine its verdict by the circumstances of the individual case; condemning everyone, on whichever side of the argument he/[she] places himself [herself], in whose mode of advocacy either want of candour, or malignity, bigotry, or intolerance of feeling, manifest themselves, but not inferring these vices from the side which a person takes, though it be the contrary side of the question to our own…” (113)

Mill's verdict is sound, although temperateness is an elastic term and not always possible. His suggestion might be a counsel of perfection in a time where the rules of engagement, as can be seen in law, have changed and it is ‘win at all costs’, ‘do whatever it takes' and ‘grab what you can.’ Causes come and go and social mores change. The opinions of the Marquess of Halifax and J S Mill resound with a consistency of theme over time and are based on actually lived experience rather than being an idyll of perfection and heaven of the Clerisy. Regulating free expression meets a perceived short term political agenda without regard to the long term social good of an open societies’ social discourse, which is to promote accuracy and truth, and calls out error and injustice. Closed societies socially and culturally stultify, then metastasise into something truly awful and ultimately fail. We should learn from that experience. Writers such as Isaiah Berlin, Karl Popper, Alexander Solzhenitsyn, Czesław Miłosz (Captive Minds) and Hannah Arendt have all written about closed societies. The value of Mill is that he demonstrates that even in an erstwhile open society there are still constraints on free speech for a non-prevailing- that is the minority- discourse.

The Logos is eternal: opinion and mores are ephemeral.

Graham Hill
16 July 2019 revised 30 April 2020
Quotes from J S Mill On Liberty are to the Everyman Edition 1910, 1960.