Freedom, Democracy and Science: three things you cannot have without offending people
The UK Court of Appeal continues the march to give up on all three.
In a recent decision, the UIK Court of Appeal has decided it was fine to ends someone’s employment if they expressed public support for Christian views of sex and marriage, as such views may offend people.
Christians should not be surprised by this. After all, Jesus was nailed to a cross because what he said and did offended people.
Citizens of the United States should not be surprised by the notion that saying things may offend people. After all, the Declaration of Independence offended many, many people. Starting with King George III and most of the British Parliament.
It would be hard to find any major democratic movement, or any fundamental shift in science, that did not offend someone.
What is remarkable is granting such authority to the claim, or even the hypothetical possibility, of being offended so as to affect the employment of others. Loss of employment is surely a much greater harm than a few words, unless they are remarkably powerful words.
The essence of freedom of speech is that our status as citizens trumps the status of words, except in the most extraordinary circumstances. Hence we are free to speak.
The converse of freedom of speech is the heckler’s veto. The right to block the speech of others.
If given sufficient authority, it can extend to the ability to punish the speech of others.
This decision of the UK Court of Appeal is clearly a case of a heckler’s veto. A veto over speech of others that is remarkably empowered by such decisions but also highly selectively available. For granting a universal “right” not to be offended would obviously either bring public discourse to a halt or render it so anodyne as to pointless; any statement of substantive content being likely to, or being able to, offend someone.
What the notion of “offensive” speech does, under a very thin veneer of alleged concern, is set up a limited class of empowered people and perspectives that are granted the authority of the heckler’s veto. An authority that will clearly be used, and in an increasingly restrictive way, as the incentive is to use it, and so to expand its ambit so it can be used even more.
When people talk of “offensive” they mean offensive to right thinking people. It is an instrument of cultural hegemony, thinly disguised as concern for others.
Indeed, it naturally transmutes into thinly camouflaged social thuggery: camouflaged, above all, for those engaged in it or acquiescing in it so they can, self-righteously avoid or deny any sense of being engaged in restrictive social thuggery. Social thuggery that the UK Court of Appeals has now given aid and comfort to.
In the words of Lord Justice Underhill, the motivating concern was:
…that the expression by the Appellant in the national media of his views about homosexuality risked impairing the willingness of gay people with mental health difficulties to engage with its services.
The Employment Tribunal, whose decision was being appealed, found that:
“11.6 Both parties accepted in evidence that lesbian, gay, bisexual and transgender (‘LGBT’) members of the community suffer disproportionately from mental health problems. Both parties also accept that there have been significant difficulties with a lack of willingness on the part of LGBT members of the community to engage with mental health services such as those provided by the Trust.
11.7 The Trust (and the Respondent) see it as vital that its staff and Board should not do or say anything that could be perceived as giving rise to a risk of losing the confidence of trust of any section of the community it serves, including those, such as LGBT individuals, where there has been historic distrust and difficulty with engagement. The Claimant accepted that it was vital that LGBT members of the community should feel welcome in the Trust and should be encouraged to access its services if they need them.”
In other words, the greater the deemed vulnerability, the greater the authority of the heckler’s veto.
As the Lord Justice Underhill says:
…they included opinions also on same-sex marriage and “homosexual activity” and were accordingly the more likely to cause offence or invite misinterpretation.
A simple statement that the views of one non-Executive Director about marriage, parenting and adoption do not represent the views of Trust or staff was not sufficient. His words had to punished by termination, they could not countered by other, more authoritative words. The judgement is saying that the only demonstrated harm from the words, the termination of employment of the utterer, is reasonable and lawful.
In particular, that it was the Appellant who had to acknowledge the problem with his statement of what he believed:
…the Appellant’s conduct made it in practice impossible to try to find a way forward that might have respected both parties’ interests … but for him to acknowledge the sensitivities and the consequent potential for damage of the kind noted above, and to engage with the Trust about how to best to address those sensitivities.
That the Appellant offered other reasons for his views apparently meant that their religious grounding was no longer sufficient protection:
The fact that that belief is rooted in his religious faith is part of the context, but the interview cannot be characterised as a “direct expression” of the Appellant’s Christianity.
So, the addition of reasoning beyond the religious was sufficient to remove the religious protection. A remarkable piece of legal reasoning that surely renders the protection for religious belief and expression rather moot. It is even more remarkable in this instance as it is, after all, true that children are statistically much safer if they are raised by both biological parents.
Lord Justice Underhill distinguishes between the belief and the objectionable manifestation of the belief. This is apparently based in recent case law, but it is a usage that should surely make one nervous. It makes it much easier to claim not to be restricting freedom of speech, or punishing beliefs, just their “objectionable manifestation”. A distinction that could easily amount to remarkably little difference.
This is a free speech issue. As the Lord Justice Underhill says:
The issue raised by this case is not about what beliefs such a person holds but about the limits on their public expression. …there are circumstances in which it is right to expect Christians (and others) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express in public their beliefs on matters of particular sensitivity. …This is a decision on the facts of a particular case, and wider conclusions should not be drawn from it.
But, of course, they will be. The expression of Christian beliefs can lead to lawful sacking. The UK Court of Appeal has found so.
Freedom of speech is the freedom to be in error. If error has no rights, there is no freedom, just complete power being held by those with the authority to declare what is in error.
Causing offence is simply a way to be deemed to in error, and to be declared to be such.
Democracy, freedom and science all require the clash of ideas so error can be detected by emergent processes, not top-down diktat. The robust operation of democracy, of freedom and of science must entail offending people. Consider how many people were offended by Darwin’s ideas about natural selection.
Consider how many people are still offended by taking evolutionary biology seriously.
Judges of the United Kingdom swear (by the relevant ultimate religious authority) or affirm a Judicial oath of office, that:
I, ____________ , do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.
Freedom, science and democracy are surely part of the laws and usages of the Realm. Perhaps British judges should not continue to march along the road of giving up on all three?