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'SOFT ATTACKS' ON FREE SPEECH


Below is a three part article written on my old website back in 2018.


I was unsure about the using the expression 'soft attacks' then and I would not use this expression now. It was merely meant to convey sanctions or detriment being imposed, other than through the criminal law.


For boycotts, I did not mention the use of tortious conspiracy, which might be employed if pressure is used to induce a breach of contract.


My views are essentially the same today as they were then. Attacks on free speech, as I see them, have perhaps increased and become more aggressive, but I do not think the situation today is radically different today than in 2018 or indeed significantly before 2018.

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LEGISLATING AGAINST SOFT ATTACKS ON FREE SPEECH: PART I – EMPLOYMENT

JOE CHIFFERS MAR 8, 2018 LEGAL NEWS0 COMMENTS

Introduction

‘Soft Attacks on Free Speech’ refer to sanctions that individuals can face for expressing controversial views, other than those imposed by the criminal law. It is possible for a person to be denied employment opportunities, prevented from having a website, a social media account, a bank account or the right to receive payments from platforms such as PayPal, all because of their political and/or philosophical beliefs (the limited protection against this provided by the Equality Act 2010 is discussed below).


This can all occur without the state lifting a finger and without the person committing any criminal offence or tortious act. Such sanctions are far more serious than a fine or short prison sentence, which normally follow a conviction for so called’ hate speech’ offences. Consequently, they probably amount to a far greater deterrent for expressing politically incorrect opinions, than such laws.


Should the above state of affairs be permitted? Is it a consequence of free markets, freedom of association and the right of private companies to choose who they will provide services to and who they will employ or dismiss from employment?


These are important questions to answer. In answering them, one should bear in mind the teleological justification for free speech; namely the free exchange of ideas which lead to the betterment of mankind.


This article will be in three parts; (1) Employment and (2) Provision of services, with a particular focus on the internet and social media (3) The Fomenting of Boycotts.


Employment


It is all very well for one to argue, based on free market principles, that employers should be permitted to hire and fire at will. However, a contract of employment places considerable restrictions on an employee’s ability to engage in commercial activity, albeit on a voluntary basis and in exchange for a salary. In many cases the employee relies on their wages to meet basic expenditure and could not meet such expenses if they were dismissed without notice. Their contract may also have prevented them from obtaining an additional income, or this may simply not have been logistically possible.


Consequently, it is justified that an employee cannot be dismissed without cause and this is the current position in UK Law (whether or not the present position of restricting the right to bring unfair dismissal proceedings to employees who have been continuously employed for at least two years is outside the scope of this article; the laws proposed below could potentially be applied to those who have been employed for less than 2 years, as an exception, in the same way that the Equality Act applies to such persons).

Currently, under the Equality Act, it is unlawful for an employer to dismiss an employee or subject them to detriment, because of their philosophical or religious belief(s). The current law is unsatisfactory for a number of reasons:

1. The Tribunal has to determine whether a belief amounts to a “philosophical belief”, which inevitably involves making value judgements. Furthermore, bearing in mind the aforesaid teleological justification for free expression, there is no justification for only protecting communications that are part of an overall philosophical belief as opposed to individual ideas and opinions.

2. Only beliefs that are “worthy of protection in a democratic society” are protected, which inevitably requires the making of value judgements.[1]

3. Employers are unable to engage in “indirect discrimination” as defined by the Equality Act. This term is oxymoronic. What it really means is that if the policy of an employer, places a burden on an individual with a protected characteristic (which would include religious or philosophical belief), then the onus is the employer to justify any such policy to the Tribunal. Therefore, if an individual has a strong belief in the existence and importance of anthropogenic climate change and objects to taking business trips by air, the employer has to justify how they run their business to a Tribunal. Employees should not commence contracts of employment if they object to carrying out the specified duties; unreasonable changes to the contract of employment can be dealt with under common law and the Employment Rights Act 1996. [2]

4. In practice, employers are able to justify their decisions on the grounds that they gave instructions to an employee not to express their beliefs, which were contravened. [3]This applies even where the opinions were expressed outside of their employment and where they are not claiming to speak on behalf of their employer. Alternatively, they can refer to the perceptions of their clients or customer base and the possibility of losing business. If a client/customer or a group of clients/customers, threaten to, or simply, withdraw their business unless an employer dismisses an employee because of opinions expressed by that employee outside of their employment, the employer should be required to ignore such threats, which are unreasonable unless they affect the service being provided (more on that below – in many cases the employer merely reacts to the possibility of customers/clients withdrawing business). Of course, if a new law was enacted, the public would realise that an employer’s hands were tied by the same. If one considers the matter from an employee’s perspective, they have a duty of fidelity while employed and normally must work a notice period before leaving; they cannot simply leave an employer and the customers/clients in the lurch. If they fail to provide this notice period, say because they are offered considerably more money by another employer, they will be in breach of contract and potentially required to pay damages. If they are regulated by a professional body, they could face sanctions by this body. It is therefore justified to require an employer to exercise fidelity when they are faced with unreasonable economic threats from customers or clients.


With respect to 3 & 4 above, under the current law, employees who diligently perform their duty can be dismissed due to beliefs which have no direct impact on their employment, whereas employees who refuse to, based on such beliefs, potentially have legal redress. This is unfair and unsatisfactory.


Is therefore proposed that a law be enacted as set out below. In my view dismissals made in contravention of the proposed law should already be regarded as unfair. However, the law will provide additional guidance and will reverse the chilling effect on free speech, that the current status quo ante has created. Similarly, the new law would address the mischief of the chilling effect on free speech, that has been created by the current status quo ante.


I am attempting to make the concept behind the proposed law as simple as possible. Exactly how the law would be formulated would require further thought. The basic premise of the proposed law, is that an employee should not be dismissed for the expression of opinions or the making of statements, that have no bearing on their employment, or where they only have a bearing because of unreasonable threats by clients or customers (in other words, where they have no direct bearing on the employee’s employment). Any communication, or series of communications, that meets the following criteria would be protected; any dismissal in response to such communication(s), would automatically be regarded as unfair.

1. It is lawful, i.e. not in breach of the criminal law or gives rise to any civil liability. When such a statement is made, it will not always be clear that the statement is unlawful, pending a prosecution or civil action. Consideration could be given to permitting the employee to be suspended until liability is determined or allowing the employer to dismiss, if they can show that they reasonably believed the statement was unlawful. This criterion would in any event overlap with (c) below, so that in practice it would be (c) that would have to be considered in the majority of cases.

2. The employee is not purporting to speak on behalf of the employer.

3. The statement is not made about the employer or any individual or entity connected with them.

4. The primary intention of the communication is not to cause commercial damage to the employer.

5. The communication does not state that the employee will fail to perform their duties to the best of their ability and in accordance with their contract of employment (I would like to have said ‘imply’, as well but I fear this would be exploited by employers and Tribunals with politically correct leanings).[5]

6. The statement was made outside the course of employment.[6]

Any instruction given by an employer to an employee to refrain from making protected communications, could be ignored by the employee; any dismissal for a breach of such instruction would be regarded as unfair.


A similar law, with similar criteria, could be enacted for membership of lawful organisations. The law could potentially replace the protection of religious and philosophical belief under the Equality Act.


Furthermore, it would be unlawful (either by way of a criminal offence or a statutory tort) for employers to make an public announcement in connection with investigatory or disciplinary proceedings against one of their employees; such proceedings and the outcomes would have to be and remain confidential. This would hopefully prevent the mass media and other third parties, from trying to pressure an employer to dismiss an employee, for expressing politically incorrect opinions.


In my submission, the above law would constitute a fair compromise between the interests of the employer, the employee and free expression. It is difficult to see how a fair-minded person, who does not wish to use economic pressure to silence those with whom they disagree, would object to the basis premise of the above law.

I have only concentrated on dismissal from employment. It would very difficult to enforce a law requiring protected communications to be disregarded in decisions to appoint employees, or one that prohibits employees being subjected to detriment. I am not opposed to such laws in principle but have concentrated on proposed laws that could be enforced, relatively effectively.


Notes

[1] In the Richard Page case, see note 3 below, the Tribunal opined that a belief that homosexuality was immoral was not worthy of protection.

[2] For the belief in manmade climate change being protected under the Equality Act, see Grainger Plc v Nicholson [2010] IRLR 4 EAT. In principle this could be applied to the flying example I have given. The following case is a good example of the problem with ‘indirect discrimination’. A Muslim woman successfully sued a hairdresser who refused to hire her because she insisted on wearing a headscarf, see here. The refusal was due to a policy that applied to all employees, namely they had to display their hair, in order to promote the salon. The Tribunal found the employer guilty of indirect discrimination, which was not justified and awarded £4000 for injury to feelings. The burden of proof was on the employer to show that the policy was justified. The problem with this approach, is that it is not possible to quantify the positive effect of such a policy. It should however be the prerogative of the owner, especially where they have invested their own money into the business, to implement such a policy.

[3] This happened in the Richard Page case, see here. The Claimant was not an employee so could not sue for unfair dismissal but based on the Tribunal’s reasoning, it seemed quite clear that they would have deemed the dismissal fair.

[4] If for example a person tries to explain the average differences in IQ scores between different races, by relying in whole or in part on innate factors, this belief would be protected, provided they express it in a temperate manner and do not use racial slurs. This opinion is inevitably controversial and may cause offence however it is expressed, but it is an opinion that should be protected in the interests of exchanging ideas.

[5] Following on from the example in note 4, if a teacher said that they would not spend us much time giving students of a particular race feedback, because of their beliefs in racial differences in IQ, they have effectively renounced their contractual obligations, so such communication would not be protected.

[6] This would normally be easy to determine, for instance an employee of a shop, expressing unsolicited views to customers as they walk in, would not be able to avail themselves of protection. More difficult examples could be decided on their merits.


LEGILSATING AGAINST SOFT ATTACKS ON FREE SPEECH – PART II SERVICES

JOE CHIFFERS MAR 29, 2018 LEGAL NEWS0 COMMENTS


This is part 2 of a 3 part article about ‘Soft Attacks’ on free speech. By ‘Soft Attacks’, I mean methods of curtailing free speech, other than via the criminal law or civil injunctions. I am referring specifically to economic pressures that limit freedom of speech and arguments for legislating against this. These are powerful pressures and thus the description ‘Soft Attacks’, is perhaps misleading. Part 1 concerning employment, can be found here.


I repeat the reference to the teleological justification for free speech referred to in Part I, namely the free exchange of ideas that could lead to the betterment of mankind. This should be borne in mind when deciding whether to regulate the provision of services to ensure that free speech is not unduly stifled.


Milton Freedman argued that a free market economy was the best way to guarantee political freedom.[1] A publisher, Freedman argues, cannot afford to only publish work with which he agrees and can only be influenced by the potential of the work earning him a profit.[2]


Yet he may to refuse to publish works that would be profitable to him for purely political reasons and still stay in business. Freedman pre-supposes that commercial entities are only motivated by commercial factors. There has been a recent trend in companies taking positions on controversial political matters, such as ‘homosexual marriage’, when commercially it would make sense for them to avoid staying into controversial subjects that have no bearing on their product.


This may, in many cases, be due to Saul Alinksy tactics[3] adopted by a vociferous minority but the issue still arises, of the free market being used for hegemonic purposes, where there is a broad consensus on certain political and ideological issues amongst the Government and large corporations.


Freedman strongly supports the ability to advocate for radical change in society. He gives the examples of advocating for communism in a capitalist society and capitalism in a socialist society. He asserts that the communist advocate in a capitalist society only needs to find one or a small number of individuals to fund his literature, whereas in the socialist society, the government who control all means of mass communication are unlikely to fund literature advocating for capitalism.[4]


Freedman is making an empirical assertion; there is no a priori argument to be made, that the socialist government could not in theory fund subversive material due to a principled commitment to free speech (he does acknowledge this possibility) or that one can always find a means of publishing a particular point of view to a mass audience in a capitalist society. Of course, there is a half- way house, namely a free market economy that has specific regulation to safeguard the teleological justification for free speech – this is a no less important aim in my view than the aim of highly onerous regulations that are already in existence (consider for instance the new Data Protection Regulations – GDPR).


If there is no commercial entity that is prepared to allow a certain viewpoint to be expressed, then for this purpose, there is a monopoly. Freedman advocated regulation against Monopolies as this frustrated the teleological justification of a free market.[5]


Indeed, economic actors who benefit from a monopoly can do more than simply refuse to allow certain viewpoints to be expressed via any media which they control. Imagine if all the main commercial banks refused to provide certain individuals or organisations (particularly political parties) with a bank account. Imagine further if various private companies refused to supply the most basic of goods such as food, or electricity to those same individuals or organisations. The same persons or organisations in this scenario are also denied the means for mass communication, such as hosting for a website, or a social media account and therefore cannot tell others of their exclusion from the above.


Perhaps the persons or individuals could survive in this scenario, but they are unlikely to feel any obligation to obey the laws of the state that has at the very least, acquiesced to their predicament. Arguably they would have no moral obligation to follow such laws. They may resort to criminality and insurrection. On the other hand, they may renounce their controversial views, which may or may not lead to their effective re-admittance into society.


If so, their ideas have not been defeated intellectually but have been stifled through economic pressure, which again frustrates the teleological justification for free speech.

If one argues that this is merely the free market in operation and the ideas in question are simply unpopular, then this is analogous to arguing that a businessman with a monopoly who can stifle any possible competition, is simply the best businessman.


All the above, leads me to conclude that there should be some regulation of the market, where there is clear evidence that the teleological justification for free speech is being frustrated. This would involve services that could be regarded as essential, which would include means of mass communication and where there are monopolies, or at least relative monopolies, for these services.


I do not claim to know exactly what form this regulation would take, how “monopolies” or “essential services” would be defined and consequently, which real life companies should be regulated; I only seek to make the philosophical case for some regulation. If, prima facie, one is in favour of an unfettered right of a business owner to refuse to provider their services, but advocates some exceptions to this, it is important to avoid an approach that is arbitrary, hypocritical or self-serving. This can be done by clearly defining the exceptions and keeping their purpose in mind.

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[1] M Freedman ‘Capitalism & Freedom’ 40th Ed 2002 at Ch I

[2] Ibid at p17

[3] See ‘S Alinsky – ‘Rules for Radicals’ ‘1971’ & J Hedgpeth ‘Rules for Radicals Defeated’ 2012 – The first of the thirteen rules is that power is not only what you have but what the enemy thinks you have, the eighth rule is to keep the pressure on the target, the ninth rule is that the threat is often more powerful than the thing itself and the thirteenth is to isolate and personalise a target. Alsinsky also talks about the importance of making the enemy react and not act.

[4] Op Cite at pp 16 & 17

[5] Ibid at Ch VIII

LEGISLATING AGAINST SOFT ATTACKS ON FREE SPEECH – PART III – BOYCOTTS

JOE CHIFFERS APR 11, 2018 LEGAL NEWS0 COMMENTS


This is the final part of a 3 part article, titled ‘Soft Attacks on Free Speech’ (see here for part II, which has a link to part I). In this part I briefly look at boycotts and conclude that whilst they can sometimes be regarded as contemptible, with false justifications being provided for them, there should not be a law against boycotts.


The aim of a boycott is to change behaviour through economic pressure. An example of this would be the organisation ‘Stop Funding Hate (“SFH”)’, see here for their website,. SFH seek to persuade advertisers to withdraw from the Daily Mail, Daily Express and the Sun, based on the content of those publications. They claim that these publications propagate ‘hate’.


They do not appear to suggest that the articles in question amount to a criminal offence such as inciting racial or religious ‘hatred’, vague and wide as these offences are. Nor, to my knowledge, do they specify whether hate is being expressed, incited or both. Indeed, so far as I am aware, there is no attempt by SFH to define ‘hate’. Without a definition of ‘hate’, SFH is adopting a Humpty Dumpty approach i.e.:

When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less”. [1]


Whilst the campaign by SFH may be within the proper bounds of free speech, it goes against the teleological justification for free speech referred to in parts 1 & 2 of this article, namely the intellectual engagement with ideas and the attempt to refute or support them with argument and evidence. SFH instead are seeking, either to silence the papers concerned by bankrupting them, or to procure a change in their content through economic pressure.

SFH state:

When the drive to maximise readership is the sole basis on which companies decide where to advertise, media outlets may be motivated to boost their sales – and online “clicks” – by any means they can. Advertising in a moral vacuum can thus create a perverse incentive for outlets to publish hate speech, “fake news” and other content with harmful social consequences.”


Therefore, they implicitly admit that these papers are to an extent, catering to the pre-existing views and preferences of their readership. SFH also implicitly admit, that they cannot or are not prepared, to influence this readership to adopt their own values; instead they want to use economics to ensure that no mainstream publication reflects opinions which they despise but are not prepared to challenge intellectually.


It is reasonable to infer that the advertisers in question had simply made a commercial decision to advertise with the aforementioned papers, without any regard to political issues. To say that these advertisers are not obliged to fund the papers is a straw man argument; the point is that SFH are via economic pressure, seeking to silence ideas and not refute them, to stifle such ideas rather than to engage with them.


However, none of the above leads me to conclude that there should be a law to prevent boycotts and/or the campaign by SFH – of course there are many different boycotting campaigns involving very different circumstances. If it is and should be, lawful, for commercial actors to withdraw their business then it there is no justification for creating a law against persuading such actors to exercise this right. Those who object to economic pressure being used to stifle and silence ideas, should organise and seek to punish companies who themselves stifle and silence ideas through their behaviour, whether such companies are pushing an agenda or just virtue signalling due to pressure from the likes of SFH. It could be made clear that any counter-boycott would cease, once the company changes its behaviour.


Conclusion


Whilst ‘hate speech’ laws are a powerful and unjustified attack on free speech, I would opine that the economic pressures against the expression of certain views, are at least as harmful to the aforementioned teleological justification for free speech.


For the reasons provided, I would advocate legislation in the areas of employment and service provision but not against boycotts. Boycotts should be dealt with via counter-boycotts. The proposed legislation would assist with safeguarding free speech but with the number of people employed by the Government, large corporations and the power of such entities, it may be that only fundamental economic reform will allow for true free speech within society.

[1] L. Carroll, Through the Looking-Glass (Raleigh, NC: Hayes Barton Press, 1872), ISBN 1-59377-216-5, p. 72


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