“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” So spoke Mr Justice Julian Knowles on 14 February, ruling on the case of Harry Miller vs the College of Policing.
The ruling upheld Miller’s right to tweet critical remarks about the belief that transgender individuals are literally the sex they identify as. It was hailed by many as “a good day for free speech in Britain”, but while free speech campaigners are fond of painting today’s censorious “You can’t say that!” climate as a decline from some notional golden age of free speech, just how long — and how golden — has that age really been?
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We may never (yet) have had a Gestapo. But for most of England’s history there have been widely accepted restrictions on permitted speech, in the form of the common law offences of blasphemy and blasphemous libel. The last successful prosecution on these grounds took place 43 years ago, in 1977, when the editor of Gay News published a poem about a Roman centurion’s love for Jesus and was taken to court by moralist Mary Whitehouse.
Though Whitehouse won, the Gay News case contributed to the demise of blasphemy laws in England. The ruling was appealed and eventually made its way to the European Court of Human Rights in 1982, where it was declared inadmissible. The case, appeal and European ruling prompted a Law Commission review of English blasphemy laws that concluded in 1985 that “the common law offences of blasphemy and blasphemous libel should be abolished without replacement”.
The history of twentieth century England is seen — and often celebrated — as a period of society’s progressive liberation from the moral yoke of religion. The Law Commission’s recommendation was finally taken up in 2008, when blasphemy was abolished as a common law offence.
But the waning of public support for prohibitions on anti-Christian speech did not result in a free speech free-for-all. Far from it: the period between the 1985 Law Commission review and the 2008 abolition of blasphemy as a common law offence saw the arrival on the statute book of four new Acts governing a different, non-religious order of things “you can’t say”. These are the 1987 Public Order Act, the 1991 Football Offences Act, the 1998 Crime and Disorder Act and the 2003 Criminal Justice Act.
The Public Order Act covers incitement to racial hatred, while the Football Offences Act forbids racist chants during matches. The Crime and Disorder Act deals with racially and religiously aggravated harassment, assault, damage and stalking, and the Criminal Justice Act allows prosecutors to apply for an increased sentence for those convicted of various kinds of hate crime.
Hate crime is not blasphemy. But from a humanist perspective on the nature of religion, laws prohibiting hate speech serve a similar purpose to the now-abolished ones governing blasphemy; they just serve a different set of values.
In his 1841 humanist classic The Essence of Christianity, Ludwig Feuerbach proposed that religions are not divine in origin, but rather created by human cultures as a vehicle for the expression of everything higher to which that culture aspires. Thus, per Feuerbach, a society’s shared ideals shape what that society understands God to be. (The kaleidoscopic variety of world religions make a strong case that this is at least partly true whether or not God exists.) In turn, that understanding of God shapes the culture. Monotheistic religions, for example, conceive of “the other” very differently to polytheistic ones, which has numerous practical political consequences.
If we thus understand a religion to be (at least on one level) a way of talking about our highest ideals, then the purpose of blasphemy laws becomes clear. They serve as a kind of ideological immune system, designed to eliminate attacks on whatever values we hold most sacred.
This understanding of the social threat posed by blasphemy is articulated in England’s first recorded trial for blasphemy — Taylor’s Case in 1676. The Taylor in question was found guilty of uttering “divers blasphemous expressions, horrible to hear”. In his judgement, Sir Matthew Hale gave his view that blasphemy constitutes an attack on the cohesion of civil society:
wicked blasphemous words [are] not only an offence to God and religion, but a crime against the laws, State and Government […] For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England ; and therefore to reproach the Christian religion is to speak in subversion of the law.
If prohibitions on blasphemy serve to protect a culture’s sacred values, then the replacement of blasphemy laws with hate crime legislation between 1985 and 2008 is not evidence of a sinister plot to roll back gains made by advocates of free speech. Rather, it shows the moment when one set of sacred values was definitively replaced by another. What, then, do we hold sacred now?
The replacement of blasphemy with hate crime reflects, in effect, the triumph of a Hobbesian view of humans as fundamentally atomised. Published 25 years before Sir Matthew Hale adjudicated on Taylor’s Case, in 1651, Hobbes’ Leviathan argued that the “state of natur”’ for humans has no naturally shared higher purpose or common good. It is rather, Hobbes argued, a state in which self-interested individuals fight (in a “war of all against all”) over who can, through force of will or acts of violence, succeed in realising their desires.
In this view of human nature, individual autonomy is our foundational state, and the task of government is to protect this autonomy as far as possible while preventing it taking forms inimical to others’ autonomy. As elaborated by numerous political philosophers since Hobbes, this radical conception of autonomy — the subject of countless “self-care” articles on the internet — is the only sacred value given concrete protection in law today.
On the same day as the Harry Miller ruling, a second ruling also took place, on another case that also turned on the socially accepted limits to free speech concerning the transgender debate. In this ruling, Kate Scottow received a criminal record for tweets in which she refused to use transgender woman Stephanie Hayden’s preferred pronouns, and referred to Hayden as “a pig in a wig”.
Are our sacred values for or against free speech, then? Public debate since the rulings has been bitter. But if we read the Miller and Scottow judgements as a process of working out the political implications of enshrining radical individualism in law as worthy of protection against blasphemy, they emerge not as contradictory so much as addressing different implications of this view of our nature.
On the one hand, if there is no common good, then of course we must be as far as possible free to say what we like. Thus Harry Miller remains free to debate transgender ideology without police appearing at his workplace. In this way, the sacred value of individual freedom is upheld.
But if we are committed to radical individualism, another logical consequence is that identity is never legitimately conferred by a group. Indeed, the common characteristic of hate crime, the core of the moral violation it forbids, is the reduction of an individual to perceived group characteristics. A group identity imposed rather than freely chosen is a gross insult to individual self-definition.
If we accept this, it follows that an individual’s right to ignore even observable reality in favour of self-defined “gender identity” will come to be seen as their sovereign right — a right worthy of protection under the sacred value of individual autonomy. It also follows that disagreeing with that self-identification will be framed as an attack on that sacred value, and sanctioned via blasphemy laws.
As we can see in the conflicting rulings on the Scottow and Miller cases, this sacred value of individualism is increasingly in conflict with itself. Our protected freedom to say what we want is locked in an ever more bitter struggle with the equally protected right of individuals to define their own identity. To put it another way, the right to express ourselves freely is increasingly in conflict with the right to free self-expression. It is a mess. No wonder the debate around transgender identity — that quintessential privileging of individual desire over given characteristics — is being incoherently policed.
In replacing a conception of the common good with radical individualism, we have elevated as a sacred value what amounts to a self-undermining doctrine of radical solipsism, that both promotes absolute free speech and provides an unshakeable argument for its negation. This Catch-22 seems designed to drive us (and our law enforcement) collectively mad. It is fashionable to upbraid the police for their handling of gender identity related hate crime, but they merit more sympathy than criticism, as they are truly in an impossible situation.
Abolishing all restrictions on free speech will not solve this, unless we also abolish all sacred values — even our current sacred value of individual autonomy. And in that case we are effectively arguing for the abolition of all forms of social cohesion — even radically individualistic ones. This seems neither sensible nor realistic. Rather than putting up a futile resistance to blasphemy laws, a pragmatic alternative might be to consider whether in fact what we need is better sacred values.