The UK government needs to work out just what “free speech” means

The Prince of Wales delivers the Queen’s Speech during the State Opening of Parliament 2022. Alastair Grant/PA Wire/PA Images

Unintended consequences and ideological incoherence. These phrases have dominated all discussions I have had in recent days about the British Government’s current approach to freedom of speech and expression.

There are now at least six pieces of legislation, outlined in last week’s Queen’s speech, which will be debated by the UK Parliament, which have a direct impact of our collective ability, in the UK, to exercise our rights to free expression. As individual pieces of legislation some are of value, but others are seemingly a political tool to set the scene for a battle about culture wars at the next British General Election, rather than to fix a problem in our society. That would be bad enough, but when considered in the round, rather than as individual laws, we are seeing a hotchpotch approach to free speech which is both ideologically incoherent and inconsistent as well as having numerous unintended consequences.

The best case in point is the proposed Higher Education (Freedom of Speech) Bill, which sets out to protect academic endeavour on campus, aiming to ensure that some of the most controversial and/or obscure issues are protected areas of academic enquiry. The Bill aims to give academics stronger protections in law to both study and discuss these issues. I have written previously about my concern that this is attempting to fix a problem that doesn’t exist and that most of the proposed provisions are already accessible under other legal frameworks, but as a principle how could Index on Censorship not seek to protect academic freedom both at home and abroad? But that brings to me to one of the inherent contradictions in the Government’s overall approach.

The Bill would provide legal protections to enable an academic to give a lecture on replacement theory – the idea that white populations risk becoming minorities as a result of immigration and high birth rates among migrants – something which I consider to be a racist and pernicious doctrine.

Replacement theory, while abhorrent, is not considered to be illegal speech, it could however be viewed as harmful speech. If the lecture was, however, then placed on a social media platform, under the Government’s proposals in the Online Safety Bill, it could be considered to be “legal but harmful” content and subject to deletion. So, you could give a lecture using protected speech in an auditorium, but your students wouldn’t be able to access it online, to debate and challenge it, and other academics wouldn’t be able to challenge the assertions of the controversial academic in any meaningful way online. So how does that protect free speech?

The British Government is also proposing a new Bill of Rights to enshrine UK human rights in a post-Brexit world. The Justice Secretary, Rt Hon Dominic Raab MP, has stated that: “We will still be clamping down on those who try and use either media or free speech to incite violence, to radicalise terrorists, or to threaten children. All of those safeguards will be in place. But we’ve got to be able to strengthen free speech, the liberty that guards all of our other freedoms, and stop it being whittled away surreptitiously, sometimes without us really being conscious of it. So it will have a different status in the pecking order of rights and I think that will go a long way to protecting this country’s freedom of speech and our history, which has always very strongly protected freedom of speech.”

Which of course to someone like me who cherishes our right to freedom of expression is manna from heaven – or is it?  Because at the same time as the Justice Secretary is seeking to make freedom of speech the foundational human right in the British system, the Home Secretary is reviewing the Official Secrets Act in the guise of a new National Security Bill. This time, an exemption for a public interest defence, a longstanding provision which protects journalists when they publish the accounts of whistle-blowers relating to national security, seems to have been forgotten. This completely undermines the premise of media freedom and journalism being able to hold power to account.

The British Government is also proposing new legislation to severely limit the right to protest in the UK under a new Public Order Bill and a new Data Reform Bill which will change our rights to privacy online. The Government is also consulting on new legislation to counter strategic lawsuits against public participation (SLAPPs) in order to stop the misuse of our libel system to silence the media and campaigners.

In other words, the Government is speaking a great deal about freedom of speech in the UK at the moment, but seemingly without any of the relevant departments or Government agencies talking to each other. As the inherent contradictions in their use and definition of free speech become more obvious, we will see a national picture in the UK which is even more convoluted and probably open to legal challenge.  Index is calling for a more strategic and defined approach to free speech in the UK and will be working with partners across the political spectrum to try and get to a place that protects all of our speech.

Elon Musk’s acquisition of Twitter – good for free speech?

On 25 April, Twitter announced that it has entered into a definitive agreement to be acquired by an entity wholly owned by tech entrepreneur Elon Musk in a transaction valued at approximately US$44 billion. He had previously announced that he had amassed a 9% stake in the social media platform.

Ooh, that’s a lot of money.

Elon Musk is not short of a few dollars. He made $175 million from selling his stake in PayPal when it was sold to eBay. He was an early investor in electric vehicle manufacturer Tesla, of which he is now CEO, and he founded rocket company SpaceX. His net worth is estimated at US$264.4 billion, making him the richest person in the world.

Why has he bought Twitter?

Musk is one of Twitter’s biggest users, with 86.2 million followers. He has hinted that he might want to buy it for several years. That said, he has had a love-hate relationship with the platform. In 2018, he suggested on Twitter that he had enough funding to take Tesla private but was subsequently fined $20 million as it had affected the market in Tesla shares, something frowned upon by the US Securities and Exchange Commission.

Why is everyone talking about free speech?

Elon Musk clearly wants Twitter to reconsider its approach to free speech. In the press release on the acquisition, Musk’s only statement was: “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated. I also want to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans.”

What does Elon Musk think free speech is?

Elon Musk describes himself as a “free speech absolutist”, posting that he would not remove access to Russian news sources through his satellite internet company Starlink “except at gunpoint”.

Clarifying his position on Tuesday evening, Musk tweeted, “By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.”

What about the freedom to criticise him and his companies?

He clearly does not want everyone to have free speech, most notably disgruntled Tesla employees and whistleblowers.

Isn’t Twitter quite hot on free expression anyway?

Twitter says in its policy on freedom of expression that “defending and respecting the user’s voice is one of our core values” and that this commitment is based on the the United States Bill of Rights and the European Convention on Human Rights, as well as being informed by a number of additional sources including the members of its Trust and Safety Council, relationships with advocates and activists around the globe, and by works such as United Nations Principles on Business and Human Rights.

In its policy on hateful conduct, Twitter says, “Free expression is a human right – we believe that everyone has a voice, and the right to use it. Our role is to serve the public conversation, which requires representation of a diverse range of perspectives.

We recognize that if people experience abuse on Twitter, it can jeopardize their ability to express themselves…  For this reason, we prohibit behavior that targets individuals or groups with abuse based on their perceived membership in a protected category.”

What’s this he’s saying about authenticating humans? Sounds a bit weird.

It seems clear that while Musk is keen to allow “lawful” free speech, he is less keen on the ability for people to remain anonymous on the platform.

In its transparency report, Twitter says that “anonymous and pseudonymous speech is important to Twitter”.

Anonymity is particularly valuable for dissidents and for others who fear attack if they reveal their true identity.

Some of the world’s most authoritarian regimes want social media users to have to identify themselves. That should raise a red flag.

Will Musk’s acquisition see Twitter veer to the right?

Musk has been hard to pin down on his political views, with most seeing him as a social libertarian.

One of the criticisms often aimed at Twitter is that it and its staff are too woke.

However, Twitter’s own research shows that mainstream right-wing parties benefit at least as much, and often substantially more, from algorithmic personalisation as their left-wing counterparts.

It also found that content from US media outlets with a strong right-leaning bias are amplified marginally more than content from left-leaning sources.

The million-dollar question: Will Musk ask Twitter to reinstate Donald Trump’s Twitter account?

On 8 January 2021, Twitter announced that it would permanently ban former President Donald Trump from Twitter “due to the risk of further incitement of violence” following the storming of the US Capitol by his supporters.

Musk might try as part of his commitment to free speech to allow Trump back on but Trump himself says he won’t rejoin even though his own Truth Social platform appears to be struggling to make an impact.

And finally, will Musk’s acquisition give China greater influence over Twitter?

Musk’s fellow rocket-loving gazillionaire Jeff Bezos jumped on Twitter to ask whether Musk’s acquisition of Twitter would give the Chinese government “a bit of leverage over the town square?”.

The Amazon founder asked the question in response to another tweet by New York Times reporter Mike Forysthe that pointed out that China was Tesla’s second biggest market after the USA in 2021 and that Chinese battery makers are major suppliers for Tesla’s electric vehicles.

Bezos answered his own question, saying “probably not” and that a “more likely outcome…is complexity in China for Tesla, rather than censorship at Twitter”.

Thousands of Twitter users helpfully pointed out to Bezos that people could ask the same question of him following his acquisition of the Washington Post in 2013. User Sankrant Sanu wrote: “How much leverage does China have over Washington Post given the percentage of goods sold on Amazon that are dependent on that country for supply?

Joe Rogan row shows limits of appetite for free speech

It’s difficult to see the multi-millionaire US podcast host Joe Rogan as the victim of censorship. This month, Forbes reported that he had been offered $100m to switch allegiance from the music streamer Spotify to the right-wing free-speech platform Rumble. To his fans, part of the attraction of this former wrestling commentator is that he represents the American everyman, a fearless straight talker in opposition to the mainstream media.

The reality is that, with 11 million listeners, Rogan far outstrips the audience of the established media. Even the most popular TV news hosts cannot dream of such figures: Tucker Carlson, Fox News’s most popular anchor, averages a mere 3.2 million viewers while Jake Tapper of the liberal network CNN struggles to hit viewing figures of one million.

But there is a free expression issue here. When singer-songwriters Neil Young and Joni Mitchell objected to Rogan including misinformation about the Covid vaccine, they could have simply decided to remove their music from the platform. This would have been consistent with the tradition of the protest singer, from which they both come. The problem was that they appeared to make this an ultimatum, asking Spotify to choose between them and the podcaster.

As a commercial decision this was no contest. But in terms of the free circulation of ideas in a free society, it is more problematic. Wherever possible, we should allow the most uncomfortable debates to take place in the largest possible arena. And Rogan’s arena is certainly large.

The intervention of Young and Mitchell was significant precisely because it sparked debate about the limits of free speech. They were not alone in objecting to the views of Dr Robert Malone, a guest who questioned the effectiveness of mask-wearing and likened the mass-vaccination programme to Nazi Germany. Some 270 scientists also wrote to Spotify to demand they address misinformation on Rogan’s show.

Following the row, Spotify is reported to have removed more than 110 episodes of Rogan’s show where they were seen to spread misinformation or guests used racist slurs. This though is not censorship. Removing content is an editorial decision. Young and Mitchell have succeeded where others have failed in forcing a major media platform to recognise its responsibilities as a publisher.

The pandemic has put a huge strain on our instinct for free speech. But the reality is that the debate between sceptics and adherents to government policy has been, for the most part, open and vibrant. The discussion around the Joe Rogan show has resulted in the podcaster committing himself to providing more balance in future and Spotify acknowledging its role in modifying content.

If nothing else, this episode has at least disabused us of the idea that Rogan is an outsider, let alone a dissident. For better or worse he now is the mainstream media.