Living with difference
Most of us encounter more diverse people than our ancestors did. We encounter them virtually, through the internet and mobile devices, but also physically. As a result of air travel and mass migration, big cities like London, Hong Kong, Dubai and Toronto are filled with men and women from every country, faith and background. There may not be more human diversity on the planet altogether – indeed there is probably less, as languages die and lifestyles converge – but there is a new intimacy of diversity. Let's exaggerate to make the point: we are all neighbours now.
Conflict and civility
Living with difference is difficult. Our deeply cherished beliefs, values and ways of life do not merely contrast; they conflict. We should not be afraid of that. Conflict is an ineradicable part of freedom and a source of creativity. If there were no differences, we would have no choices and therefore no freedom. What we need is not to abolish conflict but to ensure that it happens in a civilised way. That is the spirit of this draft principle – which is for debate, like all the other draft principles. We must be free to speak openly about all kinds of human difference, but without the words turning to blows. Hence the need for what we have called “civility”. Like the translators on Wikipedia, where “civility” is a key term, our student translators have wrestled to find equivalents in their languages. In English, I like these elements of a definition from the Oxford English Dictionary: “Behaviour or speech appropriate to civil interactions” and “The minimum degree of courtesy required in a social situation.”
“Hate speech” and “immutable characteristics”
Much of the free speech literature is concerned with what we should or should not be free by law to say about how other women and men differ from us. One shorthand label used in English is “hate speech”. This has been helpfully defined as speech that attacks or disparages a group or a person for characteristics purportedly typical of the group. Article 20 of the International Covenant on Civil and Political Rights calls for, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” to be outlawed. Whole volumes are devoted to exploring exactly what that means, and how one should balance or reconcile the demands of Article 19 and Article 20 of the Covenant. Countries differ greatly in what they allow and the line does not fall simply between authoritarian and liberal democratic states. There are big differences even between the oldest democracies of the west. Most countries in Europe and the English-speaking world (Australia, Canada etc) limit by law what we are allowed to say about others more than the US does.
The subject of this principle is closely related to questions addressed in the next three: the freedom to debate history, science and other areas of knowledge (see P5), incitement to violence (see P6) and – explosively in our time – religion (see P7). But it applies most directly to statements or images attacking or negatively generalising about other human beings on account of who they are, rather than what they believe or think; just because they have a darker skin, for example, or are women, or were born into a certain family or tribe. In the US, they call these “immutable characteristics”, but when you look at it more closely, some are more immutable than others. A contrast is often drawn between religion, which you can change, and race, which you cannot. Just how clear is that distinction? True, you cannot change your skin colour, but as Paul Gilroy and others have argued, “race” is a social construct. For decades, the same person who was (like it or not) always described as “black” in the US could be “white” in Brazil. So is it really the case that “race” belongs unambiguously on the immutable list, and “religion” among the mutable? What do you think are “immutable characteristics”?
By law or social practice?
This fourth principle, like the others, suggests that as little as possible should be restricted by law, as much as possible regulated by our own free choices as grown-up neighbours, citizens and netizens. Trying to impose civility by law has so many disadvantages. In the nature of something as complex as human identities in today’s mixed-up world, it is very difficult to define exactly what should and should not be banned. From country to country, the legislation is full of unclear wordings such as “stirring up” (Britain), “threatening speech” (Denmark) or “provocation” (Spain). Defenders of such legislation often say, “But it is used only in the most extreme cases.” The record suggests that it has been used only in a few of the most extreme cases, and in several that were not so extreme (read our case study here). At best, its use has been selective, at worst, almost random. Because people don’t know where the line is, this legal uncertainty has a chilling effect. Once you start down this road, you are repeatedly confronted with the charge of double standards. If race is covered, why not religion? If religion, why not sexuality? If Jews and Christians, why not Muslims? If Muslims, why not lesbians? If lesbians, why not old people? If the state attempts to satisfy these objections, there is a ratchet effect – putting ever more subjects and groups off limits. That ratchet effect is a response to a liberal striving for equality before the law, but also to the lobbying power of particular groups.
If you follow this logic, then the more diverse your society is, the more taboos there will be. Ultimately, you reach the comprehensive position expressed in Section 153A of the Indian penal code, which threatens with up to three years in prison anyone who, “By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities…” (my italics). On the face of it, that looks like the ultimate modern multiculturalist recipe. In fact, it goes back to the days of the British empire and a penal code written by the historian Thomas Babington Macaulay. Its logic was one of colonial oppression: keep the lid on those restless natives, by having the power to lock up anybody for saying anything offensive to anyone else. By stopping people from publicly expressing these thoughts and emotions, you don’t stop them thinking and feeling them. Those thoughts and feelings are merely driven underground, where they fester – eventually re-emerging in more poisonous forms.
Such legislation also has the perverse effect of encouraging people to take offence. Do we want to be the sort of human beings who are constantly taking offence? (“It is the mark of a weak position, not a strong one,” observes the South African writer JM Coetzee, “that its holder, when challenged, takes offence.”) Do we want to educate our children to see themselves as victims? Even if you think law should be used in a symbolic, expressive way, to “send a message”, is this the right message for it to send? Or do we want our children rather to grow up understanding that the human being demeaned by an unfounded insult, be it racist, sexist, nationalist or ageist, is the person delivering the insult, not the person at whom the insult is directed. There is an old English saying, “Sticks and stones may break my bones, but words can never hurt me.” As a descriptive statement, that is clearly wrong. Words can hurt deeply. Take it not as a description but as a prescription and you discover a different meaning: I want to be the kind of person who cannot be hurt by offensive, insulting language. In a world where we are daily confronted with the intimacy of difference, we all need to grow thicker skins. Yet clearly that is easier said if you are a rich and powerful man belonging to a dominant majority than if you are an impoverished woman belonging to an ostracised minority. Our voluntary code cannot be confined to saying, “We must all get thicker skins.” It must take account of the difference between the weak and the strong.
Towards robust civility
For expression to remain free, we must have the right to offend; that does not mean we have a duty to offend. We need to find ways of speaking frankly about difference without insulting the basic human dignity of those we are talking to or about. There are many paths to robust civility, and they vary greatly with context (which is another reason one-size-fits-all hate speech law is so bad at regulating this most complex form of human interaction). Much humour, for example, consists precisely in transgressing the usual lines of civility. Half the jokes in the world are, taken at face value, outrageous ethnic or sexual slurs. To give a very mild example, Omid Djalili says, “I’m the only Iranian comedian in the world – and that’s three more than Germany.” Sometimes, the difference between a Jewish joke and an anti-Semitic joke is who is telling it. Without thinking about it, we all adjust our civility settings many times a day. There are things you say freely to a close friend in the bar that you would never say at grandma’s dinner table. Committees, schools, clubs, factories, universities, offices all have their own formal or informal codes. These are often more restrictive, or at least, more insistent on formal courtesy, than those we use elsewhere. Most publications and websites have their editorial and community standards.
Free speech as navigation
The philosopher Michel Foucault tells us that the Epicurean thinker Zeno of Sidon argued that free speech should be taught as a skill, a techne, like medicine or navigation. I don’t know how much of that is actually Zeno, and how much Foucault, but it seems to me a vital thought for our time. In this crowded world, we must learn to navigate by speech, as ancient mariners learned to sail across the Aegean Sea. We cannot learn if the state never allows us to take the boat out. A good example of a community thrashing out its own rules of civility is Wikipedia. We have tried to do the same in the community standards of this website. If most of us can agree, in frank and civilised debate, what should be the voluntary, self-imposed limits to free debate in a particular community or context that is an achievement both of free speech and of civilisation. What do you think? This is a complex, sensitive subject. Some of our advisers disagree with the argument I have made here. Jeremy Waldron, for example, thinks there is a much stronger case to be made for European and Canadian-style legislation. Do have a look at those contrasting views. Then please add your own here.