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HAVING YOUR SAY Threats to Free Speech in the 21st century Edited by JR SHACKLETON Having Your Say HAVING YOUR SAY Threats to Free Speech in the 21st Century EDITED BY J. R. SHACKLETON with contributions from PHILIP BOOTH • NICK COWEN • STEPHEN DAVIES CLAIRE FOX • DENNIS HAYES • VICTORIA HEWSON LEO KEARSE • JACOB MCHANGAMA DAVID S. ODERBERG • J. R. SHACKLETON First published in Great Britain in 2021 by The Institute of Economic Affairs 2 Lord North Street Westminster London SW1P 3LB in association with London Publishing Partnership Ltd www.londonpublishingpartnership.co.uk The mission of the Institute of Economic Affairs is to improve understanding of the fundamental institutions of a free society by analysing and expounding the role of markets in solving economic and social problems. Copyright © The Institute of Economic Affairs 2021 The moral rights of the authors have been asserted. All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (elec- tronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the publisher of this book. A CIP catalogue record for this book is available from the British Library. ISBN 978-0-255-36801-8 (interactive PDF) Many IEA publications are translated into languages other than English or are reprinted. Permission to translate or to reprint should be sought from the Director General at the address above. Typeset in Kepler by T&T Productions Ltd www.tandtproductions.com CONTENTS About the authors ix Summary xiv 1 Introduction 1 J. R. Shackleton New types of speech restrictions 2 This book 10 2 A history of laws on hate and abuse 18 Jacob Mchangama Suppression of abolitionist writings in the US 21 British colonialism 24 Apartheid South Africa 27 The United Nations, human rights and hate speech 30 The continuing importance of free speech in protecting minorities 36 3 Tolerating extreme speech 39 Nick Cowen Classical liberal free speech doctrine 40 Is extremism exceptional? 43 Everyday extremism 46 A taste for violence 50 v Contents Alternatives to restrictions on speech content 52 Conclusion 55 4 Legislation on online harms will damage free speech 56 Victoria Hewson Legal but harmful 58 Disinformation and fake news 66 Rowing back from safe harbours 69 Free speech needs free enterprise 72 A fool’s errand? 74 5 Liberty: beyond left or right? 77 Claire Fox Free speech and the Covid-19 crisis 78 The racism crisis and the threats to free thought and expression 88 Beyond left and right: a new movement? 100 6 Having a laugh? Free speech in comedy 102 Leo Kearse A brief history of censorship in comedy 102 Modern censorship 104 My own experience 119 In defence of censors 125 The impact of censorship 126 7 Why free speech in advertising matters 129 J. R. Shackleton ‘Good’ and ‘bad’ advertising? 130 Advertising regulation in the UK 136 vi Contents Advertising and the curtailment of free speech 141 Conclusions 155 8 Attacks on freedom to speak and to pray 157 Philip Booth Introduction 157 Restrictions on freedom of speech, conscience, prayer and thought 160 We know where you live: free speech and police visits 169 A close-run thing: Lee v. McArthur and Ashers 172 Free speech and institutional culture 174 Conclusion 178 9 The threat to freedom of speech in universities is a symptom of a wider problem 180 Stephen Davies Freedom of thought 181 Limitations on speech 183 The historical basis of university freedoms 184 Challenges to free speech in universities 188 This is part of a wider problem 192 10 Free speech: the freedom that trade unions forgot 200 Dennis Hayes Disorganised unions 201 The therapeutic turn 202 Trading off free speech for safety 204 Free speech and the Prevent duty 205 Speak up only to whistleblow 207 vii Contents The suppression of speech 208 UCU in the therapeutic university 212 Forward with the Free Speech Union? 221 Postscript: #Je ne suis pas Samuel 223 11 Offence, hypocrisy, and the function of democracy 225 David S. Oderberg Introduction 225 Offence, insult, and harm: conceptual considerations 227 Waldron on ‘hate speech’ 231 The deliberation argument for free speech in a pluralist democracy 236 Freedom of speech as prior to freedom from offence 238 Conclusion 242 References 245 About the IEA 262 viii ABOUT THE AUTHORS Philip Booth Philip Booth is Professor of Finance, Public Policy and Ethics at St. Mary’s University, Twickenham, and Director of the Vinson Centre and Professor of Economics at the University of Buckingham. He is Senior Academic Fellow at the Institute of Economic Affairs. He is also a Senior Research Fellow in the Centre for Federal Studies at the University of Kent and Adjunct Professor in the School of Law, University of Notre Dame, Australia. Philip is a Fellow of the Royal Statistical Society, a Fellow of the Institute of Actuaries and an honorary member of the Society of Actu- aries of Poland. Nick Cowen A political scientist with interests in political theory, law and public policy, Nick Cowen studied for his BA in Phil- osophy at University College London and also has an MPhil in political theory from Oxford University. He wrote his doctoral dissertation at King’s College London on the political economy of distributive justice. Nick became a Fellow at the NYU School of Law in 2018. ix About the authors Stephen Davies Steve Davies is Head of Education at the Institute of Eco- nomic Affairs. From 1979 to 2009 he was Senior Lecturer in the Department of History and Economic History at Man- chester Metropolitan University. He has also been a Visiting Scholar at the Social Philosophy and Policy Center at Bowl- ing Green State University, Ohio, and a Program Officer for the Institute for Humane Studies in Arlington, Virginia. His many publications include Empiricism and History (Palgrave Macmillan, 2003) and The Wealth Explosion: The Nature and Origins of Modernity (Edward Everett Root, 2009). Claire Fox Claire Fox is Director of the Academy of Ideas, which she established to create a public space where ideas can be contested without constraint. She convenes the yearly Battle of Ideas festival and initiated the Debating Mat- ters Competition for sixth-formers. In May 2019, she was elected to the European Parliament as an MEP for the North West England constituency. In 2020, she was made an honorary professor at the University of Buckingham. In September 2020, Claire became a member of the House of Lords as Baroness Fox of Buckley. Dennis Hayes Dennis Hayes is an emeritus professor of education at the University of Derby and the Director of the campaign x About the authors group Academics for Academic Freedom. He sits on the advisory board of The Free Speech Union. In 2006–7 he was the first (joint) president of the University and College Union (UCU). Among his many publications is the contro- versial and best-selling book, co-authored with Kathryn Ecclestone: The Dangerous Rise of Therapeutic Education. First published in 2009, the book was reissued, with a new preface, in 2019 as a Routledge Education Classic. Victoria Hewson Head of Regulatory Affairs at the Institute of Economic Affairs, Victoria Hewson is a practising solicitor. She has specialised in commercial, technology and data protection matters across a range of sectors. Victoria has published a number of papers for the IEA, and writes regularly for the Telegraph and CityAM, and appears on television and radio to discuss trade and regulatory policy. Leo Kearse Leo Kearse is a Scottish comedian and writer, based in London. He is part of a new wave of raw, bold, American- inspired comedians taking the big UK clubs by storm, and was Scottish Comedian of the Year in 2017–18. A self-styled ‘right wing comedian’, his ‘Extinction Rebellion’ video went viral, selling out shows throughout the UK. He is also popular abroad, with 2019 seeing him perform in twenty countries. Among various credits, Kearse has written for BBC shows including Breaking The News, Mock The Week xi About the authors and The Mash Report. He played Mick Fleetwood in the ITV drama Breaking The Band: Fleetwood Mac. Jacob Mchangama Jacob Mchangama is the founder and executive director of Justitia and a visiting fellow at the Foundation for Individ- ual Rights in Education in Washington. In 2018 he was a visiting scholar at Columbia’s Global Freedom of Expres- sion Center. He has commented extensively on free speech and human rights in outlets including the Washington Post, the Wall Street Journal, The Economist and Foreign Affairs and Foreign Policy. Jacob has published in academic and peer-reviewed journals, including Human Rights Quarter- ly, the American Journal of Political Science and Amnesty International’s Strategic Studies. Jacob is the host and nar- rator of the podcast Clear and Present Danger: A History of Free Speech and the author of a forthcoming book on the history of free speech from Socrates to Zuckerberg (Basic Books and Basic Books UK, 2022). David S. Oderberg David S. Oderberg, Professor of Philosophy at the Univer- sity of Reading, completed his doctorate at Wolfson Col- lege, the University of Oxford. He has written four books and edited or co-edited five others, as well as being the author of over sixty academic papers. His main research areas are metaphysics and ethics. In 2013 David delivered the Hourani Lectures in Ethics at the State University at xii About the authors the Social Philosophy and Policy Center, Bowling Green University, Ohio. In 2016 he was named as one of the fifty most influential living philosophers.