© 2023 by Cork Online Law Review

  • Facebook Social Icon
  • LinkedIn Social Icon
  • Twitter Social Icon
Please reload

Recent Posts

Free Speech Letter

20 Jan 2012

We would like to thank Eoghan McSwiney for his submission and congratulate him on being the first published in the new Letters to the Editor section. Eoghan graduated from UCC with a BCL degree in 2010. He then read for an LLM in International and Human Rights Law in UCL. Eoghan is currently a junior fellow of the Institute of Public International Law at the University of Bonn.

 

This letter deals with the legal and moral issues relating to the principle of free speech and applies them to contemporary concerns such as the facilitation of extremist political views. The fully referenced version of the letter is available for download here.

Dear Editor,

 

This letter serves to highlight the importance of free speech, beginning with a whistle-stop tour of the law and morals underpinning the principle. It concludes by examining, in light of this law and morality, the seemingly ethical quagmire that surrounds whether or not controversial speakers should be afforded platforms to speak in university debates.

 

Free speech is protected by the Tenth Article of the European Convention on Human Rights. A classic judicial expression of the supremacy of the principle before the European Court of Human Rights is found in the famous Handyside judgment. ‘Freedom of expression constitutes one of the essential foundations of such a [democratic] society.’ More importantly, ‘it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive…but also to those that offend, shock or disturb.’

 

This legal protection of free speech derives from a long-standing moral imperative. It is a principle which has been prized by liberal political philosophers and lawyers for centuries. A Cromwellian system of censorship was the stimulus for Milton’s impassioned and sempiternal defence of free speech:

 

Lords and Commons of England, consider what nation it is whereof ye are: a nation not slow and dull, but of a quick, ingenious and piercing spirit. Give me the liberty to know, to utter and to argue freely according to conscience, above all liberties.

 

The search for contemporary affirmations matching both the sentiment and artistry of Milton’s famous plea is a fertile hunting ground. Felix Frankfurter submits that ‘[l]iberty of thought soon shrivels without freedom of expression.’ For Professor Conor Gearty, ‘[t]o think is to speak.’ Although unquestionably it is a principle central to the modern liberal democracy state, it is so much more than just abstract principle. Salmon Rushdie has intimate experience of the raging fires of discontent which speech can provoke, and accordingly, it is unsurprising that he believes that ‘[f]ree speech is life itself.’

 

The Handyside case buttresses the notion that free speech necessarily includes the unsavoury. Eschewing the over-used maxim oft misattributed to Voltaire, I favour the words of Orwell: ‘[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.’ And so, keeping in mind the important moral and legal backing for this submission, we (eventually, perhaps belatedly) arrive at this letter’s destination.

 

Nick Griffin is the leader of a party which received almost a million votes in the UK European elections in 2009. His British National Party has reprehensible views which I find abhorrent, but it is unquestionably a well-organised political movement which finds support among many disaffected on the far right of the political spectrum.

 

I am extremely proud to be able to name University College Cork among my almae matres and was pleased to see that the university is seemingly supportive of efforts to have Mr Griffin speak at a debate on the importance of free speech in modern society at the Government and Politics Society later this year. This move follows the withdrawal of his invitation to speak before the Phil in Trinity College Dublin. It also stands in stark contrast to UCC’s position when its Philosophical Society attempted, in 2008, to have controversial and revisionist historian David Irving, who spent time in an Austrian prison for remarks he made questioning the Shoah, speak at a similar debate. Ultimately, following loud calls for protest from so-called ‘anti-fascists,’ the University and Gardaí ensured that Mr Irving could not attend. However, the publicity surrounding this led to his appearance on the Late Late Show. The irony being that in demanding that he not receive an audience of a few hundred on a Monday evening in Cork, the self-styled ‘anti-fascists’ inadvertently caused his appearance on national television in front of hundreds of thousands. Needless to say, his views were discussed and the moral fabric of society remained intact.

 

It does not necessarily follow from the moral and political argument I outlined earlier that one should afford a platform to the likes of Nick Griffin. Obviously, debate invitations are the prerogative of those issuing them and are, by no means, an entitlement. However, I would nonetheless submit that the best way to encourage a genuine discussion of the parameters of the legal and moral free speech principle is by discussing controversial ideas with controversial interlocutors. In legal terms, the views of Griffin are protected by the ECHR. In fact, his views are subject to exceedingly stringent protection as his views are political in nature. The jurisprudence of the Strasbourg Court suggests that political speech enjoys a particularly high level of protection, a position deriving from the view that freedom of political debate is ‘at the very core of the concept of a democratic society.’ So that the far-right enjoys free speech rights is not in doubt. The real question concerns whether or not these views should be afforded a platform.

 

The positions of the BNP (in my estimation, anti-immigration, anti-Semitic, and homophobic) should be challenged and debated, and where better to do so than in a university? Provided the risk to public safety can be managed, I look forward to his visit to UCC going ahead. If speakers such as these, in unquestioned possession of legal and moral rights to free speech, are continually denied the platform to espouse views which represent a genuine minority of public sentiment (at least in the UK and in much of continental Europe), they and their ilk will not go away. Only with airtime can extremists be cut down to size. Pretending that these views do not exist is unproductive. You can block your ears, but the music will continue to play unabated.

 

If we are to make the aspirations of the Handyside case a reality, a necessary part of free speech is its extension to the repulsive and the repugnant. So while European Human Rights Law does not mandate that such a debate must go ahead, it is congruent with the sentiments, favouring the protection of that which we despise, which is expressed therein. We live in a country where a terrorist apologist can run for president, but where the serving leader of a right-wing political party is oft prevented from speaking in public. So long as Mr Griffin does not shout ‘fire’ in a crowded G19 or Boole 4, legal and moral considerations mean that I believe he should not be silenced.

 

Is mise le meas,

 

Eoghan Pádraig McSwiney

Share on Facebook
Share on Twitter
Please reload

Please reload

Archive