The Virtue Of Lawless Language

In recent years, there has been a conscious movement to re-evaluate the role of language in our society. Stemming from the postmodern philosophical belief that language should be viewed in terms of its contextual use, as opposed to what it references directly, the movement has become influential in academia and media. It is particularly relevant as it has contributed to a significant shift in how we see language and in how we understand portrayals in the media as "offensive".

The phenomenon of ‘cancel culture’

Especially on social network platforms, characterised by the withdrawal of social media following and support, as well as financial endorsement, creates real-world consequences for the individual, often a celebrity or public figure, being ‘cancelled’. More recently, those who partake in ‘cancelling’ an individual have been viewed with increased contempt. A recent example is the ‘cancelling’ of the author Joanne (J. K.) Rowling, following her choice of words about an article reposted to her Twitter page, where her language was regarded as transphobic. Rowling is now being referred to as a “trans- exclusionary radical feminist”, or “TERF”, often seen as a term of offence among third-wave feminists.

The 'Red Flags'

The greater sensitivity to ‘red flags’ in academic language will inevitably translate to law. Legislation surrounding offensive behaviour is currently based on the outcome alone, i.e. the immediate risk to public order. We are yet to create legislation that criminalises the actual contents of a statement, based on the way in which it is interpreted as offensive or untrue. Arguably, to make such statements illegal is a risk to our personal liberties; this grants too much power to the Government to decide what is likely to offend which is often a natural grey area in the sphere of discourse.

From a utilitarian perspective, permitting statements which are untrue and offensive without punishment would be damaging to discourse. The individual freedom to express oneself should not jeopardise the right of the majority to receive factually correct statements which are free from offensive material. For example, if a factually incorrect idea surfaces that a particular minority group is responsible for the cause and spread of a disease, there is a high possibility that this group would be subjected to discrimination, based on a statement which could have been dealt with by the authorities. This hypothesis has been confirmed as a result of the pandemic, where COVID- 19 has been dubbed the “Wuhan Virus” or “Chinese Virus”, despite the World Health Organisation setting out clear guidelines in 2015 outlining standard practice in giving names to diseases. Its main objective was to the association between pathogens and specific countries or regions. The consequences of this were substantial, including but not limited to stigmatisation, ostracising, financial destitution of specific areas and a significant increase in the number of racially motivated attacks.

Teachings of equality are hardly modern in origin.

From Galatians 3:28 to the Universal Declaration of Human Rights. Nor is some version of the following: in order to safeguard the world brought about by these teachings, we must place limits on speech to protect minority and marginalised sects of society. Statements, if known to be untrue, serve no purpose beyond being inflammatory and arguably contribute very little to public knowledge and understanding of relevant issues. In addition, such statements are emotionally trying and damaging to targeted individuals. A slur or offensive statement, especially when amplified by a larger group, can be a source of huge discomfort and unease. As a society, we ought to take into consideration the increasingly widespread occurrences of trauma, and through criminalising statements that are untrue or likely to offend may deter people from perverting discourse and therefore, create a more favourable atmosphere for citizens.

Bigger perspective.

Though the premises of this argument are flawed. The utilitarian approach simply cannot hold water, as would be argued by the opposing force, permitting statements which are untrue and offensive arguably does not cause harm to discourse, but rather in the words of Rule Utilitarian John Stuart Mill:

‘It encourages us to reconsider, substantiate and justify the beliefs we endorse and why. In turn, this allows us to break free of societies’ ideological bubble with our deepest-held premises virtually unchallenged.’

Although in this particular instance, this argument attempts to justify criminalising statements which are both untrue and likely to offend, eventually legal precedent may develop in such a way that ‘true’ statements (which is to say verified) which are expected to cause offence, may also be criminalised.

Proponents hope that if it is put in place, legislation would serve as a deterrent, but we can easily point to our nation’s drug laws as concrete evidence that legislating on actions which are hard to police is both costly and ineffective.

To make such statements illegal gives the state the power to determine first what is offensive, and second what is not factually correct. Having seen the effects of various authoritarian and totalitarian regimes of the 20th Century and their control over information, any repetition or mimicry of this would be a frightening prospect. Further to this, what is deemed offensive is inherently subjective. Even “true” statements may be construed as offensive due to the supposed biases they represent. For example, the statement “Asian students perform better on average than students from other racial backgrounds in standardised tests” may be seen as offensive, as it contributes to a stereotyped view of Asian people and culture. If the Government were to have the final word in what was to be deemed offensive, this would likely mean that they would treat people according to the ‘lowest common denominator’.

Is it more acceptable to make untrue and offensive comments against white people? Ironic.

Stereotyping and offensive language towards white people will be, as is in the current legislation, relatively less policed, as the majority of Brits (85.4%) are white. This highlights, ironically, the inequality in the application of the law, as it is seen as more acceptable to make untrue and offensive comments against white people. Additionally, issues arise as to whether or not language is perceived as non-threatening, or non-abusive depends partly on the circumstances in which it is used. Both context and circumstance affect a court's judgement as to whether particular words or behaviours are abusive - what is likely to cause insult during a church service may not when shouted during a football match.

The “truth” proponent of this proposed legislation is more problematic. Historically, brutal dictatorships have implemented censorship, both of media and individuals, in order to enforce obedience, compliance and conformity. Control of truth is the natural stepping stone towards authoritarianism or even totalitarianism. Central to this is the fact that freedoms given over to the Government are exceptionally hard to be regained by the people. Take, for example, the ‘Firearms Act 1968’, which states Britons are not allowed to possess fully or semi-automatic rifles without explicit permission from the central government. There is little question of whether these rights would be returned to citizens. Similarly, if a law were passed to criminalise statements, there would be little opportunity, and perhaps even less motivation, to decriminalise them at a later stage. If a comedian told a joke (which was not based on actual experience) that was construed to be offensive, it would be banned - which seems like an odd and peculiar legal scenario for the courts to process.

How is this legislation going to be enforced?

In order to even serve remotely as a deterrent, it would require an extensive network of surveillance, which even those amongst us who favour surveillance might object to. At the moment, there are already people who are violating the current legislation. A notable example of this is the Channel 4 TV Documentary series “The Jihadis Next Door” (2016) , where reporters shadowed radical Islamists in Britain. The reporters exposed extremist “hate- preaching”, which is banned under the current law. Clearly, these “red flags” (trying to radicalise children and flying the ISIS flag in a park) were not adequately combated by the police. This was particularly highlighted in the documentary, as it actually featured the November 2019 London Bridge Attacker. If current legislation is shown not to be adequately enforced by the powers that law enforcement currently possess, the only way that a better rate of arrest will be achieved is through giving greater powers to the police. The question of whether we as members of a society would agree to increase the power of the police to gain full access to our statements online, poses another point of contention.

Defamation is an example of the law criminalising statements which are both untrue and certain to cause offence. Defamation is also, however, usually centred around damages to a person, or damages to their reputation, status or standing. The Irving vs Penguin Publishing Ltd & Lipstadt case, for example, was centred around David Irving’s reputation as a historian, after Professor Deborah Lipstadt had supposedly libelled him in her book ‘Denying the Holocaust: The Growing Assault on Truth and Memory’. In contrast, this other proposed measure would centre around sole offence, rather than the possible damages following on from such an offence.

Liberal Values.

In Britain, we pride ourselves on our liberal values, with the right to freedom of speech laying the foundations for other civil liberties and freedoms, including the right to protest. The “anti-mask” protests which occurred on 26 September 2020 in London clearly indicate there ought to be a clear line between exercising one’s civil right to protest, and using force and violence to express one’s views, for example by spitting at and threatening those who wear masks. Although there is controversy as to whether it is morally, legally, or fundamentally right to have the Government mandate and enforce face mask-wearing. The general law is clear: one cannot breach existing laws in order to assert a certain point of view.

On the other hand, this argument has been used to justify the use of violence by revolutionaries in order to overhaul unjust laws. It may be pertinent to ask the question; ‘is a law requiring the wearing of masks so unjust that it requires this level of opposition?’ In this case, much of the debate and evidence stems from scientific knowledge. The distinguishing factor between this debate and others is the reliance on scientific evidence, as scientists do not yet have a complete picture of COVID-19, and the social unease and unrest it is causing is being exacerbated by every individual being selective in the media they consume, and facts which they believe to be true. It could be said based on this example that our stances and what we believe to be our rights are determined by our personal selection.

Unlike the revolutionaries who were an identifiable socio- economic class, or persons with a specific identifiable characteristic in common, anti-mask protestors are only bound together by their specific belief. Their challenge requires a balance between an individual perceived right, and the greater good of wider society.

Proponents of the argument for criminalisation may argue that freedom of speech should only extend to that which is conducive to public discourse; in line with the Public Order Act [1986]. However, this arguably negates the concept of freedom of speech as it carries the implication of the freedom to be wrong, and / or inflammatory. If one can only express what the Government sanctions, is that really free speech in every sense of its definition? It is important to note that the aforementioned Act does not criminalise the inherent content of speech; it instead criminalises the outcomes of speech - that being the detriment to public order some speech can indeed have. The present legislation essentially sends the message: “This statement is illegal based on what it does.” This possible legislation would send the message: “This statement is illegal based on what it is.” This distinction is crucial as it represents a significant step in terms of setting legal precedent, implying that the state would be granted the power to differentiate between types of statements it likes or does not at will. Freedom of speech, therefore, is severely curtailed when all citizens are limited in the statements they are allowed to make.

To conclude, permitting statements which are untrue and offensive arguably does not damage discourse; it merely compels and necessitates the need for us to review the core beliefs we hold most dear. Such legislation would be impractical to police without a flawless infrastructure of surveillance to distinguish between statements and being able to mark them as untrue or offensive - and more problematically, such definitions of “untrue” and “offensive” would need to be laid down by the state. Freedom of speech would be significantly curtailed and at the very least be somewhat diminished in terms of its definition. Citizens would no longer have the ability to err in making statements or have the ability to offend. Censorship is arguably not the solution irrespective of how offensive or deceitful a comment may be. In order for society to progress, it is fundamental that we exercise our rights in order to better ourselves and create convincing and concrete cases for a more tolerant, less deceitful society.

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" If a law is unjust, a man is not only right to disobey it, he is obligated to do so." - Thomas Jefferson