States’ rights and free speech: a spurious analogy

Last week, Babar Sattar wrote an interesting piece in Pakistan’s The News International, nicely summing up a view held by many people, both in Pakistan and elsewhere:

Bigotry and racism are penalised for being illegal in some situations and celebrated as markers of freedom in others. There are laws against anti-Semitism in many western countries that have a history of tormenting the Jewish people. There are laws prohibiting the denial of the Holocaust. These are useful laws introduced to curb religious hatred and acknowledge widespread persecution of Jews in the past. But if anti-Semitism is prohibited (as it rightly should be, being a product of racism and bigotry) why have manifestations of Islamophobia, motivated by the same sentiments of hate and prejudice, come to be celebrated as expressions of necessary human liberty worth protecting?

This argument reminded me of Eric Posner’s widely ridiculed piece in Slate, asking whether the First Amendment was all it’s cracked up to be. One passage caught my eye:

During the Cold War, the U.S. foreign policy establishment urged civil rights reform in order to counter Soviet propagandists’ gleeful reports that Americans fire-hosed black protesters and state police arrested African diplomats who violated Jim Crow laws. Rather than tell the rest of the world to respect states’ rights—an ideal as sacred in its day as free speech is now—the national government assured foreigners that it sought to correct a serious but deeply entrenched problem.

It strikes me that Posner drew a stupendously wrong lesson from that era. The lesson was not: simply do what the rest of the world wants. It is: when someone criticizes you for not consistently applying your freedoms, you should respond by consistently applying them.

I make this argument in today’s Sunday TimesThink Tank column (£). It’s behind a paywall, but a small excerpt:

Two years ago, why did we allow the Advertising Standards Authority to ban a satirical picture of a pregnant nun simply because it was “a distortion and mockery of the beliefs of Roman Catholics”? Why was France’s Catholic Church granted an injunction against a parody of da Vinci’s The Last Supper in an advertising poster on the basis that it was “a gratuitous and aggressive act of intrusion on people’s innermost beliefs”? Do we wish to live in a society where an arm of the state inventories the contents of our soul?

Let’s move on to our absurd prosecutions based on social media postings. In March a student was sentenced to 56 days in jail for a “racially aggravated public order offence” after abusing Fabrice Muamba, the footballer. This month a teenager was convicted for a “grossly offensive message” about dead British soldiers. But why is it illegal to be an obnoxious boor?


Many reasonable people around the world see us as hypocrites and they have a point. It is difficult to persuade Muslims in Egypt or Pakistan that vulgar insult to the prophet is protected as free speech in the West, when we are seemingly happy to criminalise, selectively but generously, offensive speech and expression on the absurd grounds of “alarm or distress”. We don’t have too much free speech in Britain; we have too little.

We should start by scrapping the clause of the Public Order Act that prohibits “insulting words or behaviour”. Britain should also build an international coalition against the countries agitating for a global blasphemy ban.

Above all, we should remember this is not about persuading others. This is about consistency in the bedrock principles of a self-confident liberal democracy.

The piece is also an elaboration of an argument I made in an earlier Telegraph article, on the need to deal seriously with violent threats against free speech.


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