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Julie Burchill, Newspapers, and Freedom of Speech

When I wrote to the Observer to complain about Julie Burchill’s transphobic tirade, I said that I thought it should be condemned and apologised for, but not that it should be removed. I argued that it ought to stand as a testament to the kind of hatred trans* people face – a position I’m wary about, as I speak as a cisgendered person. But there was another reason: I knew that if it was removed, the next day I would have to face a series of really stupid articles from other newspaper columnists talking nonsense about freedom of speech.

Some years ago, I was a philosophy student. I still like keeping in touch with philosophy, even though I’ve given it up for even less practical and lucrative pursuits (viz., the arts). Having studied philosophy intensively tends to give you a certain mindset when reading intellectual arguments: patient, pedantic, and with no tolerance at all for sophistry (“a superficially plausible, but generally fallacious method of reasoning”). Also, I tend to shout at the laptop screen: “Define your terms!”

What I’d like to do here is apply a bit of that attitude to talk about why Terence Blacker, Simon Kelner, Tom Peck, Toby Young (and probably many other white men but I got bored googling) are wrong and disingenuous in their application of the free speech argument, and to talk a bit about some of the ideas behind free speech in the process. This is written for a general audience – taking “Telegraph columnist” as my lowest common denominator of intelligence – in the hopes of laying some very simple groundwork for a sensible conversation about free speech. There are bigger and more complex discussion to have about it, but let’s at least get the foundation right.

Some Philosophical Foundations

First: there is no such thing as absolutely free speech. This should be obvious to any halfway thinking reader (or newspaper columnist). If you’re not sure why, ask yourself these questions:

  • Does Robinson Crusoe have free speech?
  • Are you free to speak in Ancient Babylonian right now?
  • Are you free to say “I’m an undercover police officer and I arrest you” to someone you don’t like the look of in the street?
  • Are you free to shout “Patrick Stewart!” in a crowded Star Trek convention?

These questions should make it clear that speech is already always restricted by your social context, your knowledge and physical ability, your legal system, and whether or not you want to be crushed by a tide of eager Trekkies. Once you’ve accepted that there are always restrictions on and impediments to what you are free to say, you’re able to ask the actually important questions:

  • What should those restrictions be?
  • When should they apply?
  • And who gets to decide?

One of the standard answers to the first question is the Harm Principle. This argues that the only time someone should not be allowed to speak is when that speech might cause harm to others, moving the question on to what counts as “harm”.  A second suggestion is the Offence Principle. This extends the Harm Principle and argues that extremely offensive speech should also be prohibited, with “extremity” determined by factors including extent, avoidability, motives, audience, and so on.

The standard answer to the second pair of questions is a representative democratic state passing laws to protect its citizens. Now, I happen to not be a big fan of either representative democracy or the state, but for now let’s use that model, and know that when we talk about “laws” we could instead be talking about “social strictures applied by a self-organised autonomist collective through constant consensus-based discussion”.

The government’s laws apply to all speech in a country. But other organisations, social groups and individuals might want to apply their own rules. For example, I can delete any post on my Facebook wall, more or less at whim. An activist meeting might want to decide that people talking over each other is not allowed. And a newspaper has an editorial policy.

Newspapers and Free Speech

Newspapers do not have to print every article they are sent, in more or less the same way as I do not have to approve every post on my Facebook wall. Nor are newspapers obliged to give a platform to every possible view – although they do have a special role in this regard. Because while I’ve mainly talked about how free speech might be restricted so far, we should also talk about how free speech should be supported.

Freedom means both “freedom from being prevented from doing something” and “freedom to be able to do something”. One of the reasons many people support a free state education system is to support the freedom of the population, to enable people to learn about the world, say things about it, and do things in it. One of the reasons many people get involved in journalism is to actively contribute to supporting free knowledge, free information and free speech: by finding out more about the world and communicating it to us, journalists help us be freer in our knowledge and understanding.

Columnists, commentators (and their editors) thus play an important role: they explore debates with us, they air different and often opposing views, they argue from different camps, they make cases about how facts should be interpreted. This is really important work. One might argue, work that’s far too important to be done solely by profit-driven companies and journalists. More on that later.

Back to Burchill

There are two arguments that the columnists above are using to say that Burchill’s argument should not have been removed. The first is that newspapers should be free to air controversial views. The second is that newspapers should not remove something just because people find it offensive.

Oddly, I agree with both of those points. I do think that freely airing controversy is absolutely vital to society – I have to believe that, otherwise I wouldn’t be able to oppose the government or the very idea of government. I also think that just being offended isn’t grounds to call for an argument to be removed.

But the columnists get it wrong in two important ways. The first is that most call the Observer’s decision “censorship”, without expanding what they mean by that. This makes it seem as if the Observer’s decision were equal with a government passing a law against a speech or a type of speech. Government censorship prevents all speech of a certain kind, or an instance of speech, from happening in a country. Newspaper censorship – another word for which is “editorial policy” – says “we do not think this kind of speech should happen in our house”. Granted, because newspapers have a particular important role in a free speech society, they should be more careful about restrictions in their editorial policy than I would about restrictions on my Facebook wall. The first way the columnists get it wrong is merely disingenuous sophistry, which annoys me as a pedant, though it is an important distinction. The second way they get it wrong is more vital.

Julie Burchill’s article was hate speech. The terms it used for trans* people, and the manner in which it used those terms, was hateful towards a minority, and designed to incite further hatred towards that minority. The language it used was the equivalent of extreme terms of racial or homophobic abuse. It was hateful. It ended with a threat that further such speech from Burchill and her allies would and should be forthcoming. It was designed to whip up hatred.

These terms – hateful, and designed to whip up further hatred – are precisely those found in British hate speech laws. They exist as an application of the harm principle. I would argue, if I had space for a full history essay, that they exist in the way they do because of Europe’s experience of fascism in the 20th century. We know what allowing hate speech towards minority groups leads to. We ban it because we believe that allowing it causes serious harm immediately and threatens further, greater harm in the long term.

But the columnists – to a man – disingenuously try to claim that the article was removed because people were merely “offended”. They try to cast the many people protesting the article as hysterical, over-sensitive, and the “offensiveness police”. (An aside: it’s worth saying that “extreme offence” is often used as an argument for censorship, either by newspapers or governments, and is in fact also one of the structures underpinning the UK’s hate crime laws. But I’m not going to explore that issue here.) The Observer’s own words in their retraction statement did not help matters, though they did say “hurt” as well as “offence”. The columnists’ failure to recognise the Burchill article as hate speech stems either from ignorance – they do not understand threatened status of trans* people, they do not recognise that the abuse in the article was the direct analogue of racial or homophobic abuse – or prejudice – they believe that trans* people are deserving of Burchill’s hatred.

Applying the Harm Principle

So I’m arguing that removing the Burchill article was defensible because it caused and threatened serious harm, by being hate speech. To take it back to an earlier facetious point, this is like saying that a Star Trek convention could quite justifiably make shouting “Patrick Stewart!” a banning offence, because it would lead to a stampede. Or a school saying that verbal bullying is banned alongside physical bullying. Or a social group rejecting people who followed someone around shouting racial slurs. At this point, you can make your own analogies.

But there are ways I want to be careful not to apply it. I’m not going to make a racial or trans* analogy here, because I don’t have appropriate direct experience to use it. So here: I would defend a newspaper’s right to print an argument that gay couples should not adopt children. But I would not defend it if that article said that gay couples demanding adoption rights were “screeching faggots” (amongst other abusive terms) who “can expect us normal people to keep getting angry with them if they go on complaining”. The first article would offend me. The second article would cause me active harm and threaten me and others with further harm.

I want to emphasise that I do not oppose the Burchill article because I am offended. I have never written to a newspaper to call for an article to be condemned and apologised for before, but I’ve been offended by newspapers many times. I wrote because it was harmful hate speech designed to incite hatred – a type of speech already banned by our legal system, and which I hope would still result in condemnation, rehabilitation and eventually social ostracism in a self-organised autonomist collective using constant consensus-based discussion.

Three More Strikes

It’s possible that you don’t quite accept the hate speech argument. Perhaps, like my interlocutor Molly (another ex-philosopher, who helped me form this article, and also proofread and commented on some of it), you think that the term “hate speech” needs more rigorous definition. Or perhaps you want to make an argument about Burchill’s particular language and how it does not qualify as hate speech. Or perhaps, in what might be the most persuasive argument to a dissident, you want to argue that Burchill’s argument was important enough to be worth the risk. In that case, there are further arguments worth making, building on the ground of the first point, that newspaper policy is not the same as government censorship. A newspaper is still a kind of private space. Its editors have to be able to support what they publish. They don’t have to agree with everything they print, but they do have to be able to defend its right to be printed and the importance or relevance of printing it. If they can’t, they shouldn’t publish a story or comment, or should retract it if they make a mistake. Here are three linked reasons the article couldn’t be defended:

If a news story is under-reported or an argument is under-aired, then a newspaper might have a duty, in its role as supporting free speech, to give space to that story or argument. Burchill was in fact trying to claim part of that territory, by implying that her perspective was under attack and was threatened with a spurious kind censorship by a supposed mob. But this was not the case. Burchill is arguing from one of the dominant trends of the second-wave feminism of he 70s and 80s, which denied that trans* women were women, which refused their identity. This argument is not under-represented: it can be found in blogs, social media, and indeed newspapers more or less constantly. Her piece was not an airing of a marginalised position: it was a reiteration of a dominant prejudice. Strike one.

A newspaper might also want to publish controversial comment or research which offers a new perspective on a social issue, and which encourages readers to see things differently. This is often especially the role of polemic, which overstates case to break through to new ground, or to express needed frustration and anger. But Buchill’s piece was not this either, for the reasons given above. Moreover, it’s important to understand that Burchill is talking about a deeply traumatic divide in feminism, one in which one oppressed and marginalised group (lesbian radical feminists) refused to recognise the gender identity of another oppressed and marginalised group (trans* women). There is more than enough polemic on this issue already. Burchill’s article served not to further resolution or find a new way, but to open old wounds and deepen a divide. Strike two.

A newspaper might want to give voice to a group or individual which is under-represented in national discourse, again in its role as supporting free speech. (Juliet Jacques wrote movingly of the Guardian’s previous decision to do just that for trans* people.) But Burchill, as has since become clear, has no such problem in airing her views. Indeed, bloggers are now lining up to air them all over again – Spiked being the latest to reprehensibly do so (so no link from me). Her voice is not marginalised. She is not speaking from a position of oppression. She does not need a newspaper’s support, and she should not have it. Strike three. Out.

Supporting Free Speech

There’s a telling line in Simon Kelner‘s dull little Independent comment piece: “Does the Twitter mob now set the rules on fair comment?” This line shows a genuine fear of collective speech. It sees the newspaper, with its columnists and editors, as the proper authority on what “fair comment” might be. It is worried about the threat posed to newspapers by platforms which give speech to thousands. That is to say, it is scared of free speech.

Newspapers are not a very free medium. They are hard to get your writing into, have far more stringent editorial policies than their lauding of free speech might make you think, and are guided by the whims of both the market and megalomaniacal magnates. Entrusting our society’s free speech to them is entrusting it to the paternalism of current authorities.

The internet is overall a supportive platform for free speech. It lowers the barrier to entry for people to speak – you need the economic resources to be able to type, get an internet connection and use a browser, but that’s about it. It has made our ability to speaks freer. Internet activists, through manifestos like the Guerilla Open Access Manifesto and organisations like the Electronic Frontier Foundation, have also worked hard to make our access to information freer in many ways. One of the results of this is that websites like Twitter – though fraught with their own free speech issues – give a new sort of power to the collective voice.

If you wanted to get a feel of public opinion on Burchill’s article, you didn’t need to go to a dubious poll on a newspaper website, or ask a columnist what they thought – you needed to type “Burchill” into Twitter’s search box. I do this on major news topics to find out how the Twitter-using public (not, obviously, wholly representative) is thinking about it. Usually I get depressed at how few people share my views and outlook on a protest or an outrage – I’m especially depressed by the streams of homophobia, racism, sexism, and all kinds of prejudice you can find. The greatest degree of unanimity I’ve seen on a trending topic was on Burchill. Fewer than 1 tweet in 30, on its day of publication, gave it any kind of defence, as far as I could see.

What this meant was that the Observer’s editors were faced with a massed public telling them they’d made the wrong editorial decision. This happens through letters, polls and comments boxes, but the barrier to entry to Twitter is lower than these, and its ability to support free speech higher – a greater mass of people was able to discuss the problems with the article. The twitterstorm, the mob, in this case, was able to properly influence the Observer’s editors to make the right decision. And I’m glad that it could.

There is a caveat, though. I like a good, well-applied mob, but mobs are also dangerous. They can be prejudiced and alienating as well as empowering and challenging. They can be manipulated by authorities as well as a resistance to them. A mob can be a radical expression of free speech – but like any organ, like any place, like any speech act, it can be oppressive too. What matters is not the organ of speech itself, but who is in charge and how the decisions are made.

A Last Note

It may be that the columnists reject even any form of the harm principle, and believe in total free speech, everywhere, all the time. I think that’s pretty hard to defend, philosophically, but I’d like them to try, if only because it might produce more interesting columns. The columns as they stand do damage to the cause of free speech and trivialise what it means, closing off needed debate as to its application.  Fortunately, for their research, there is on the internet a good example of a total free speech zone: 4chan. It is unmoderated, and posts have an anonymous username, meaning that barriers to access are very low indeed, and no-one will censor anything. Of course, you might get teased there if you get the etiquette wrong, so remember, Toby Young: always sign every post on 4chan’s /b/ board with your full name and address.

Further Reading

The Stanford Encyclopeda of Philosophy, as usual, provides a comprehensive introductory article on free speech, going into much more subtlety than I do here.

LifeHacker has an accessible exploration of free speech and the internet.

Index on Censorship has an exceptionally good article on free speech and the Burchill case — it’s much shorter than this one, and it calls out the disingenuousness of the newspapers much more forcefully.

Laurie Penny explores the rift between third wave and transphoic feminism quite well.

This beautiful, sad, hopeful letter from Paris Lees helps explain why Suzanne Moore’s earlier words triggered so much hurt.

Quinnae Moongazer uses a comprehensive takedown of Burchill to explain trans* oppression and explore the wider relevance of intersectionality, which is to say, a broad feminism that recognises different types of oppression.

Catherine Baker reflects on the fear that our language (esp. “intersectionality”) might be alienating or classist. Given that this accusation is used to defend transphobic comments, it’s worth exploring more deeply.


  helgurney wrote @

Really enjoyed this – logical and precise, and the stinging 4chan reference at the end was fab.

  cnlester wrote @

Absolute joy to read – thank you for writing. If only this was the kind of discourse we saw in the papers.

  Kipling wrote @

http://y2u.be/ndWglZ_8Wig – an open letter on transphobia

  flyingontherainbow wrote @

Reblogged this on flyingontherainbow.

  Beverley wrote @

Interesting article, but surely by your own argument, if Burchill’s rant is “hate speech” then the newspaper had to take it down or else they would be complicit and a party to a crime?

Of course, if the editorial system worked properly they would never have put the article up in the first place….

  Harry Giles wrote @

Thanks for the comment.

It’s ambiguous whether UK hate speech law actually covers transgender people. It originally covered race/nationality/citizenship in 1986, was extended to religion in 2006, and was extended to sexuality in 2008. (http://en.wikipedia.org/wiki/Hate_speech_laws_in_the_United_Kingdom) I’ve heard reports that the article has been taken to the police, but that people doing so were turned away on the grounds that a group couldn’t be identified as being victims of a hate crime — but I can’t substantiate that, or remembered where I heard it.

I tried in this article to not rely on the legal case. I’d rather we argued “newspapers shoudn’t publish it because it’s wrong” than “newspapers shouldn’t publish it because it’s illegal” — mainly because I’m a big believer in civil disobedience and so regularly advocate doing things that are illegal or unlawful because I believe they’re right.

  Harry Giles wrote @

Thanks for the kind comments, all!

  Elinor wrote @

Bravo! This is the best argued piece on this I’ve come across – I’m bookmarking it for future reference.

when we talk about “laws” we could instead be talking about “social strictures applied by a self-organised autonomist collective through constant consensus-based discussion”

I think you and I may be brain-twins :-)

  Jeff Thompson wrote @

So basically, your argument is if a lot of people agree with you, then that’s good and the people who don’t agree should be censored. Brilliant stuff!

  Harry Giles wrote @

Hallo Jeff,

No, I don’t think that is my argument at all. In fact, the implication of the “Three More Strikes” section is the exact opposite: that if an opinion is marginalised, under-represented or breaks new ground, then that is a very good reason to risk people’s offence and disagreement and print it.

My argument is actually very simple: that a particular kind of speech, hate speech, speech which incites hatred on the grounds of identity, is ethically repugnant and should not be printed. It also happens to be illegal, though I kept myself to talking about newspapers rather than laws, because not printing something in a newspaper is very different from legal censorship (which also applies in this case).

I imagine you took your gloss from the “Supporting Free Speech” section, because that’s the only bit where I talked about numbers of people disagreeing. I did not say that because loads of people disagreed and were offended that the Observer should withdraw the piece. I said social media provided a powerful way for people to tell the Observer what they thought, and that this enabled the Observer to recognise the mistake. The Observer’s decision should be independent of the number of people complaining, but when a lot of people are able to complain it prompts them to make a decision. They shouldn’t withdraw the piece *because* lots of people complained; instead, when lots of people complain, it means they should decide whether or not there are other grounds to withdraw it. In this case there were: it was hate speech. I hope this clarifies what I meant for you.


  Michael Mcveigh wrote @

As an “ordinary” person, it felt like hate speech to me, not free speech.
I would defend anyone’s right to free speech and of their right to offend.

The other thing which did not sit well was the ridiculing – making fools of people who are genuinely trying to be happy in their lives. So sad really.

  The Burchill/Moore saga continues… | Hel Gurney wrote @

[...] for some excellent posts from allies, see Harry Giles on freedom of speech, this Guardian article by Deborah Orr, and The F-Word’s statement against transphobia (which [...]

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