BA Journalism // DT582/3
Jenny Murphy Byrne // C15544183
Using your own examples from print, broadcasting, film, radio or TV, discuss the relative merits of free speech protections versus policies restricting speech, e.g. hate speech legislation. Use Irish and/or international references
The topic of Freedom of Speech never fails to spark conversation – what it is, why it’s valuable, and what is its limitations. Most constitutions, and significant human rights documents recognise the right to freedom of expression as one of the cornerstones of any liberal democracy.
According to Article 19 of the United Nations Declaration of Human Rights, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (ICHRP, 2017). This language is repeated almost verbatim in Article 10 of the European Convention on Human Rights (ECHR, 2017).
The Irish Constitution, Article 40.6.1 states “The right of the citizens to express freely their convictions and opinions.” These rights, of course, cover more than mere verbal expressions, and other rights, like freedom of association, are sometimes necessary in order for people to exercise their right to freedom of expression. It’s also the case that these rights are without limitations. In the case of the ECHR, for example, the following restrictions apply:
“The state is permitted to require licensing of broadcasting, and to restrict freedom of expression to the extent that may be necessary in a democratic society, in the interests of national security, or public safety, for the protection of morals, reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” (ECHR, 2017)
We can debate whether some of these restrictions go too far, or whether the law does not go far enough, when it comes to imposing limitations on the right to express oneself, but we can all agree that there are at least some limitations which should apply. Most people agree that we should not be entitled to defame others, or to commit fraud and so on.
Philosophically speaking, the most balanced defense of the right to freedom of speech comes from John Stuart Mill, a 19th century English philosopher most famous for his contributions to utilitarian moral theory.
In On Liberty (1859), Mill argued that there are several reasons why people should be permitted to express themselves freely:
First, he states people are not infallible. Sometimes people are wrong, even about matters which enjoy wide support. Nobody can be certain that their views, no matter how controversial, are correct, and if people are prohibited from challenging these views, people are less likely to figure out that they are mistaken. Even if a viewpoint not completely right, it might be completely wrong either – we rarely know the full truth, so being able to examine all aspects of a viewpoint might allow us to salvage something useful from an otherwise questionable opinion.
Mill (1859) further posits that even if we believe our views are right, if we don’t defend those views, we will come to assume that our views are true, as a kind of unquestioning dogma. Understanding why the views we hold are true, and the ability to defend them is far more beneficial, than prohibiting dissenters from expressing themselves. Allowing disagreement, therefore, provides us with a better understanding to why we should hold the view that we do. (Mill, 1859)
And finally, the prohibition of a view risks making a martyr of those who hold the view. It can undeservingly contribute a certain amount of weight, by indicating that we were unwilling and unable to defeat their views via an open and honest debate. By exposing these contentious views to the light of public scrutiny, not only will it become elementary for us to understand why our views our right; and why their views are wrong. (Mill, 1859)
Professor Dennis Hayes (2010) believes Mill’s theory of ‘absolute freedom of opinion’ was a commonplace of liberal politics until several academics asserted ‘absolute freedom of speech did not exist; when leaders of trade unions and political parties argue that free speech must be weighed against other values, and when campaigning organistions such as Liberty ask the public to note that all societies restrict freedom of speech.
Mill is not engaging in rhetoric when he says that silencing an opinion is ‘robbing the human race,’ argues Hayes (2010). But instead is demonstrating that free speech is a foundational freedom; the freedom on which all others rest.
“Free speech is not primarily about those who speak but about those who listen to speech. The argument for absolute freedom of speech assumes that those who listen and, therefore, engage with speech are capable of making up their own minds. In other words, it assumes that they are human beings.” (Hayes, 2010)
Today, our society has become obsessed with silencing opinions that offend various groups and communities. Applying Mill and Hayes’ framework, we are assuming that they are diminished human beings who must be protected by their superiors. Shamefully, the arguments that assume a diminished and vulnerable set of listeners are often addressed to people from black and ethnic minority groups and women. (Hayes, 2010)
In a world dominated by online anonymity, the line between Free Speech and Hate Speech has become attenuated. Hate Speech can be easily defined outside the confines of law: it is any speech that attacks or demeans a person or group on the basis of their race, religion or gender (Press Council of Ireland, 2017). While this definition is merely a matter of classification, the concept becomes far more contentious once it moves into the area of law and where it may operate as a limit on the exercise of freedom of speech and expression.
In Ireland, Hate Speech is prohibited under the Prohibition of Incitement to Hatred Act, 1989 (1989 Act) – though Section 10 of the Defamation Act 2009 (2009 Act) may also be relevant. The 1989 Act is incredibly extensive, but the following sentence encompasses the state’s stance on Hate Speech: “If the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.” (ISB, 2017)
Regarding the 2009 Act, the whole law of defamation is about the application of its principles, insofar as it affects the media – a person has a right to not have his or her reputation blemished by false publications, but a journalist has an absolute right to publish information which can be shown to be true or within the public interest. (Murphy and McGuinness, 2011)
While the policies and protections are in place, combatting Hate Speech in print and broadcasting media remains a constant struggle. The editors and journalists of every national newspaper in Ireland have signed up to a Code of Practice which prevents the publication of ‘material intended to cause grave offence or stir up hatred.’ If a complaint is made and upheld about a piece of offensive content, then the newspaper is obliged to publish in full the Press Ombudsman’s decision. (Press Council of Ireland, 2017). No Editor wishes to publish a decision which goes against his or her newspaper, the reputational damage is considerable. Therefore, the possibility of having to publish focuses the mind of the editors on ways to avoid this outcome.
Press Ombudsman Peter Feeney recently addressed the evolution of Hate Speech throughout global media. “My experience is that most editors are open to engaging with their readers, that they will seek where possible to address readers’ concerns. So, my advice is to engage, don’t be passive, don’t assume that your voice won’t be heard. Journalists need to hear alternative viewpoints, they need to be informed of the concerns of those sections of society likely to be exposed to hate speech.” (Feeney, 2017)
Of course, the editor may defend the original article and claim that it was an opinion piece that contributed to public debate on an important topic (Press Council of Ireland, 2017). A similar defence can be made under the 2009 Act: some exempt the publication from liability, while others merely mitigate the damages – Defence of Truth, Honest Opinion, Consent, and Innocent Publication. The defence of Fair and Reasonable Publication and the Matter of Public Interest, however, is designed to protect the media in circumstances where they act ‘responsibly’ when dealing with matters of public interest and ensuring the right of freedom of expression is not improperly restricted. (Murphy and McGuinness, 2011)
An example where a journalist was seen to have attacked a particular societal group was former Sunday Times columnist, Kevin Myers. Though, Myers defended his article under Freedom of Expression (Claire Byrne Live, 2017), it was seen as anti-Semitic and sexist. The Press Ombudsman received numerous complaints in relation to the column – ‘Sorry, ladies – equal pay has to be earned’ – published in the Sunday Times (2017). The opinion is critical of recent calls for equal pay for and women in media organisation after the BBC published its list of highest-paid, where only one woman made the top ten (the Journal.ie, 2017). Since Myers’ dismissal, he believes the punishment for writing the piece would be reserved for a ‘paedophile, a rapist or an unrepentant terrorist.’ (Leinster Express, 2017)
Though Myers treatment was just, could it have been handled with more decorum? By branding him a sexist and a xenophobe, Kevin Myers has become a martyr, just as John Sturt Mill mentions in his essay. Mill (1859) reiterates throughout his work that silencing flawed opinions that mirror Myers’, only adds unnecessary weight to them. It paints the rational and reasonable-thinking members of society as being stubborn, unwilling and unable to defeat these contentious views through an open and honest debate. Treating people like Myers as sacrificial lambs, and not challenging them will only stoke their hateful views further. As we’ve seen since Myers dismissal, though he has apologised, he continues to defend his actions, while also criticising others at various organised talks, where his controversial opinions remained unchallenged.
In a recent poll, the majority of Irish people prefer free speech as they believe limitation on it is overprotecting citizens from potential offence. In a Claire Byrne Live (2017) poll conducted by Amárach Research, 1,000 adults were asked: ‘Do you support placing limits on free speech to protect people from being offended?’ The results were: No – 65%, Yes – 19% and Don’t know – 16%. (Journal.ie, 2017)
The idea of censorship is troubling, but painting the anti-hate speech movement as part of an attempt to ignore reality avoids its nuance. Confronting hate speech is not about controlling the conversation but rather about promoting tolerance and inclusivity. And contrary to the sensationalised attention that the issue receives in the media, most people do not feel that the anti-hate movement puts their right to free speech under attack.
Aodha, S. (2017). Most Irish people don’t want free speech restrictions – even if it offends some. online TheJournal.ie. Available at: http://www.thejournal.ie/ireland-freedom-of-speech-3178693-Jan2017/ Accessed 29 Dec. 2017.
Bejan, T. (2017). The Two Clashing Meanings of ‘Free Speech’. online The Atlantic. Available at: https://www.theatlantic.com/politics/archive/2017/12/two-concepts-of-freedom-of-speech/546791/ Accessed 28 Dec. 2017.
Center for American Progress. (2017). There’s a World of Difference Between Free Speech and Hate Speech – Center for American Progress. online Available at: https://www.americanprogress.org/issues/race/news/2017/04/21/431002/theres-world-difference-free-speech-hate-speech/ Accessed 28 Dec. 2017.
Halpin, S. (2017). Complaints lodged to Press Ombudsman over offensive Kevin Myers column. online TheJournal.ie. Available at: http://www.thejournal.ie/kevin-myers-complaints-3522546-Jul2017/ Accessed 29 Dec. 2017.
http://www.webtrade.ie, W. (2017). Combatting Hate Speech in Print and Broadcasting Media. online Presscouncil.ie. Available at: http://www.presscouncil.ie/about-us/recent-decisions-and-news/combatting-hate-speech-in-print-and-broadcasting-media Accessed 28 Dec. 2017.
Humanrights.ie. (2017). Right to Learn: Hayes on Free Speech – Human Rights in Ireland. online Available at: http://humanrights.ie/civil-liberties/right-to-learn-hayes-on-free-speech/#more-7280 Accessed 28 Dec. 2017.
Ichrp.org. (2017). Article 19. online Available at: http://www.ichrp.org/en/article_19_udhr Accessed 28 Dec. 2017.
Irishstatutebook.ie. (2017). Defamation Act 2009. online Available at: http://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/html Accessed 28 Dec. 2017.
Irishstatutebook.ie. (2017). Prohibition of Incitement To Hatred Act, 1989. online Available at: http://www.irishstatutebook.ie/eli/1989/act/19/enacted/en/html Accessed 28 Dec. 2017.
Murphy, Y. and McGuinness, D. 2011. Journalists and the Law. 3rd ed. Thomson Reuters (Professional) Ireland Limited.
Leinsterexpress.ie. (2017). Journalist Kevin Myers attacks Leo Varadkar and JK Rowling and claims he was ‘punished like a rapist, paedophile or terrorist’ for controversial Sunday Times column. online Available at: http://www.leinsterexpress.ie/news/news/282495/journalist-kevin-myers-attacks-taoiseach-and-claims-he-was-punished-like-a-rapist-paedophile-or-terrorist-for-controversial-sunday-times-column.html Accessed 29 Dec. 2017.
Poole, S. (2017). A beginner’s guide to Voltaire, the philosopher of free speech and tolerance. online the Guardian. Available at: https://www.theguardian.com/books/shortcuts/2015/jan/18/beginners-guide-voltaire-philosopher-free-speech-tolerance Accessed 28 Dec. 2017.
Student Independent News. (2017). Free speech vs hate speech: Where’s the line?. online Available at: http://www.sin.ie/2017/01/25/free-speech-vs-hate-speech-wheres-the-line/ Accessed 29 Dec. 2017.
Utilitarianism.com. (2017). On Liberty by John Stuart Mill. online Available at: https://www.utilitarianism.com/ol/one.html Accessed 28 Dec. 2017.