Elon Musk’s Twitter bid is a reminder of importance of free speech

  • First published in : Visit Website
  • First published on: 29th Apr 2022

Elon Musk’s takeover of Twitter has prompted renewed debate about free speech and how Twitter moderates its content. Musk has described himself as a “free speech absolutist” leading to concerns that Twitter could become a forum used by criminals, bots and others for nefarious purposes and to incite hatred and violence. This would not be desirable. However, unfortunately, Twitter already allows some users to incite hate and violence without sanction and paedophiles to hide in plain sight while algorithms steer them towards the accounts of young children. Both the UK Government and the EU have reminded Musk of his duty to protect the rights of Twitter users. Frankly they could do with remembering that themselves as Twitter frequently ignores the law on free speech, freedom of belief and non-discrimination. Twitter’s content moderation policies could do with being brought into line with these laws so that, for example, people can challenge prevailing orthodoxies such as gender identity theory without being suspended or banned from the platform.

While some worry that the UK Government’s Online Safety Bill could be a threat to free speech, with appropriate amendments it could also be a vehicle to ensure that in the UK at least Twitter’s moderation policy takes account of the right to freedom of speech and freedom of belief and the right not to be discriminated against under the Equality Act. If the Online Safety Bill can do this at the same time as protecting the safety of children online, then it will be worthy of support.

The right to free speech is not absolute. Most democracies recognise that threats, bribery, defamation, perjury, false advertising, and workplace harassment do not deserve to be protected in law.  The trick is to get the balance right.

In a dictatorship free speech is one of the first things to go. At present, for obvious reasons, the UK Government are very keen for us not to look too closely at Rwanda’s human rights record despite having demanded an inquiry into it at the UN last year. In March of this year Human Rights Watch (HRW) reported on a wave of free speech prosecutions in Rwanda against journalists, commentators, and opposition politicians. HRW explained that whilst Article 38 of Rwanda’s 2015 Constitution protects freedom of expression it limits that protection by permitting ill-defined restrictions based on “public order, good morals, the protection of the youth and children, the right of every citizen to honour and dignity and protection of personal and family privacy.” The government, with the support of the judiciary, has used this clawback clause to impose restrictions on freedom of expression in ways that are incompatible with Rwanda’s regional and international obligations.

It’s useful to contrast the free speech provisions of Rwanda’s current constitution with Article 10 of the European Convention on Human Rights. It allows public authorities to place restrictions on freedom of expression in certain circumstances, but the interference must be prescribed by law, pursue a legitimate aim and be proportionate and necessary in a democratic society. In practice these are strict tests to meet, and the case law of the European Court of Human Rights makes it clear that there is little scope for restrictions on political speech or on debate about questions of public interest including matters which give rise to considerable controversy, or which concern an important social issue. Politicians north and south of the border would do well to remember this.

Last week I attended the launch of the Free Speech Union in Scotland as a member of its Advisory Council.  FSU is a membership organisation comprising members of all political parties and none which stands up for the free speech rights of its members. It has opened a Scottish office due to overwhelming demand from Scottish members concerned that free speech is under threat in Scotland. Many are particularly worried about the chilling effect of the Hate Crime and Public Order (Scotland) Act, when it is brought into force. There is also considerable concern about potential threats to free speech from the UK Government’s Online Safety Bill (unless it is amended) and the crack down on the right to protest in England and Wales in the Police, Crime, Sentencing and Courts Bill passed at Westminster this week.

The Director of the FSU in Scotland is Fraser Hudghton, a former SNP staffer and activist and the son of well-respected former SNP MEP and party President Ian Hudghton. The Advisory Council includes others from the nationalist left including Ian Macwhirter, Jim Sillars and the award-winning poet and National Collective activist Jenny Lindsay.  The right is represented by Murdo Fraser MSP and Brexit campaigner Tom Walker. As I said at the launch it would be very foolish for the left to leave the defence of free speech to politicians of the right. Free speech is a universal right and the bedrock of any democracy.

While there are mainly laudable aims behind both the Hate Crime Act and the Online Safety Bill, aspects of such laws are open to being weaponised by bad actors to censor legal speech. It is important that those affected by such weaponisation have support. Many of those who have found themselves targeted cannot themselves afford to instruct lawyers to defend them when they are bullied, harassed, and intimidated in the workplace or when they face criminal investigations for ‘hate speech’ which is in truth is nothing of the sort.

Within 48 hours of the launch of the FSU in Scotland we saw the need for it when a political meeting due to take place on the Aberdeen University campus was cancelled at short notice because the political party holding it opposes self-identification of sex and some students decided this was “transphobic”.  It should be emphasised that it was the students’ association that sanctioned this censorship not the university itself.  Incidents like this show why Scotland, the home of the Enlightenment, requires Free Speech defenders. Our universities should welcome debate on public policy. Students who cannot cope with hearing an opinion with which they disagree should perhaps reconsider whether university is an appropriate choice for them. They may also find  any workplaces rather challenging.

At the FSU launch the Scottish poet and my fellow Advisory Council member Jenny Lindsay said: “In nearly twenty years of programming and writing in Scottish literary culture, I have never known an atmosphere so stifled, nor the precepts of freedom of expression so disregarded by individual writers and arts organisations alike. This does not need to be the case, and I dearly hope for robust discussion about re-energising Scotland's literary landscape so that writers and thinkers are free to explore complex contemporary issues without fears of no-platforming, ostracization, smearing and loss of livelihood.”

The situation which she describes pertains not only in the literary world but also in politics, universities, public bodies and charities. It is not healthy and if Scotland wants to take its place among the constitutional democracies of the world as an independent nation and have a proper debate about the journey there, our public discourse needs re-energising so that policy and ideas can be discussed openly.

Joanna Cherry QC MP

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