RE: free speech?
Mary McAleese, President of Ireland
The Defence of Freedom
Edited version of speech delivered to The Irish Times/Harvard University Colloquium, 16 October 1998
Human rights are the oxygen of civilisation. Nobody owns them. Nobody has authority to deny them to another. Sir Edward Coke — speaking of the Magna Carta in 1628, in an era before the introduction of gender-neutral language — proclaimed that ‘human rights is such a fellow that he will have no sovereign’. They are the birthright of all.
The Declaration of Human Rights is couched in eloquent and persuasive language — the kind of language designed to comfort the oppressed, to challenge the oppressor. But when we move from its broad brush to translating its effects and ethos into everyday life as it is lived in the chaos of the world, we also have to acknowledge the perverse complexity of some of the issues we are called on to address.
Freedom of speech is one such issue and it is upon that freedom I want to reflect in this address, raising more questions than I have answers but offering (I hope) some insights.
Article 19 of the Declaration of Human Rights proclaims that ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ Article 40 of the Irish Constitution (1937) declares that ‘it is the right of the citizens to express freely their convictions and opinions.’
And of course the famous First Amendment to the American Constitution states that ‘Congress shall make no law, abridging the freedom of speech, or of the press or the right of people peaceably to assemble and to petition the government for redress of grievances.’
By freedom of speech we generally mean, and I mean here, freedom of expression — not just words but images, symbols and even demonstrations or marches through which views and convictions are expressed or cultural heritage showcased.
Clearly there are many instances (Northern Ireland being one of them) where civil rights have been won and other important social grievances have been redressed by people who asserted themselves verbally in ways which were at first strongly resisted by their fellow citizens and the authorities.
The history of the debate concerning freedom of expression is full of ironies. Northern Irish Catholics, who were themselves beneficiaries of a civil rights movement which staunchly asserted its right to march, now find themselves challenging the demands of the Protestant Orange Order to march where it pleases.
When Orangemen proclaim their right to ‘march the queen’s highway’ why then is there no simple convergence of interest — no clear if even grudging recognition that if all citizens are to be equally accorded fundamental freedom of speech then we must be prepared to tolerate marches by people whose views we disagree with?
A minority of Orange marches are deeply controversial. In asking ourselves why this should be so, it is worth looking for a moment beyond Northern Ireland to other societies in which the exercise of freedom of expression has been a source of dispute.
An American visitor spoke to me at the height of this year’s trouble at Drumcree, near Portadown in Northern Ireland. An Orange march had been banned and was refusing to disperse. ln the ensuing violence across Northern Ireland three little children were to be burned to death. Yet during the stand-off my American visitor said that in the United States the march would in all likelihood have gone through with the full backing of the law.
As Prof. Samuel Walker has written in his fine book on the history of hate speech in the United States, this country ‘protects even the most offensive forms of expression’ and — in his view — the First Amendment protection of freedom of speech is ‘one of the glories of American society.’ I too greatly admire the robust manner in which the Supreme Court of the United States of America has defended and promoted free speech. However, you also in this country have faced situations of choosing between one person’s freedom of speech and another's freedom to live quietly in peace — situations where one person’s voice speaking freely has consigned another to fear and terror.
The truth is that sometimes the exercise of freedom of expression is actually experienced as personally oppressive and humiliating, especially (although not exclusively) by the weak, the powerless and the deprived.
An American case of 1992 is regarded by some observers as a landmark in this whole debate. The Jones family, a black family living in a white neighbourhood in St Paul, Minnesota, were subjected to harassment. One night a burning cross, the symbol of racist persecution, was placed within the fenced yard of their house. Robert Viktora was among those who put the burning cross there. He was prosecuted under a city ordinance directed against the display of a symbol which one knows, or has reason to know, ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender…’
The US Supreme Court upheld the First Amendment rights of Robert Viktora and struck down his conviction in a lower court.
To return to Northern Ireland, its annual Orange marching season provides some further examples of how one person's freedom of expression can be felt by another as a restriction of his or her own rights.
Most Orangemen see their marches not just as an historic tradition but as an expression and celebration of their hard-won rights and liberties. But, conversely, some of their parades are seen by Catholic or nationalist residents of the areas through which they pass — and often by the wider nationalist community as well — not just as a major intrusion on their right to live peacefully in their own homes but as an assertion of superiority and an expression of a continued reluctance to accept the full equality of the two communities
In the past, the Catholic community collectively tended to choose to stay silent in the face of unwelcome parades. In recent years, Catholic residents’ groups have exercised their freedom of speech to talk back, to protest at the marches and to insist that their sensitivities must be taken into account in the routing and timing of marches.
There have been, often due to an escalation of tensions far away from the locations themselves, confrontations, stand-offs, and sometimes appalling violence, even deaths. Inevitably, people other than those directly concerned become involved.
The Good Friday agreement sends out a clear message — the way forward is through affording each other respect and tolerance, through accepting diversity, ultimately through consensus and partnership.
It is vital, therefore, that those of us who support freedom of expression do not resort to absolutist arguments, as though we were proclaiming the divine right of kings, as though an appeal to rock-hard principle could resolve the dilemma of conflicting rights both neatly and comprehensively.
There are some important questions here — questions about the voice or voicelessness of the victim which are sometimes dismissed or finessed from the agenda when free speech is discussed. The experiences of people on both sides in Northern Ireland can provide useful insights in answering these questions.
Northern Ireland in particular has a very creditable civil code which provides legal redress for verbal sexual, religious or racial harassment in the workplace. It effectively outlaws certain language and behaviour notwithstanding the commitment to freedom of speech.
Out on the street, however, the same conduct which is unacceptable in the workplace — or, indeed, conduct which is much worse — may be, and often is, protected by appeals to freedom of speech. Even in countries where constitutional provisions speak of the equality and dignity of each human person — and indeed pledge to vindicate that equality by law — there is freedom to express views which promote racial supremacy, gender inequality or religious hatred.
Arguing that opponents have an equal right to talk back, states founded on a commitment to human rights sometimes adopt a deliberately neutral pose on the public expression of views anathema to those very human rights, provided that the views expressed stop short of immediate incitement.
However, being entitled to talk back and actually talking back are two different things and in my view it is worth reflecting on whether and to what extent we encourage and promote effective talk-back; that is to say the kind of talk-back which ensures that free speech is not just a licence for the voluble bully.
Take the immigrant issue for example — an issue affecting so many countries, including my own. Sometimes language used about immigrants is inconsiderate and wounding. Our freedom of speech can be a whip on their backs. Yes, some people rally to defend them but what of the woundedness that goes deep, what of the silent places into which they creep — fearful for their present and terrified for their future?
I need hardly remind a Massachusetts audience that we Irish have often been immigrants ourselves and have been on the receiving end of hate speech.
One month ago when l was in England, I visited an exhibition on Irish travelling people who live there — in another era these people were called Irish gypsies or itinerants. Children at the exhibition put on a little play. It told of their experiences on the street and the names which they were called — ‘dirty gippos’ was the most repeatable of them.
What does it mean to children like them to tell them that their tormentors are exercising their freedom of speech, that the state defends their right to do so?
Was not this what was said to the inhabitants of Skokie, Illinois, where in 1977 a small Nazi organization asserted the right to parade through a largely Jewish village? The Nazis’ case was controversially supported on First Amendment grounds by the American Civil Liberties Union and it succeeded in the Circuit Court of Appeals. The US Supreme Court refused to hear an appeal. In the end, the planned Nazi march did not go ahead in Skokie itself but there remains to this day a real question about how far we can acknowledge responsive silence, silence provoked by fear and subtle, insidious intimidation.
How far should we acknowledge that the marchers were sending a powerful message, throwing big shapes, intending to instill fear and paralysis? They were not simply planning on marching any old place, they were on a mission — out to destroy peace of mind in a Jewish community.
Just as in Northern Ireland, both sides can invoke seemingly innocent and even noble values in ways which result in fine words not actually meaning what they seem to say. They may have — to borrow a phrase which the poet Seamus Heaney uses about the words of enmity — ‘the toothed efficiency of a mowing machine’.
If you have experienced the wounding power of symbols and of language you may not readily agree in adulthood with the sentiments of that reassuring refrain which is used by children and which goes: ‘Sticks and stones may break my bones but names will never hurt me’. Name-calling, words and even tunes, can and do hurt. They can hurt deeply, offend and inflame. Language is sometimes a signal by the aggressive that exclusion and persecution will be tolerated. It can chill dissent and inflict psychological torment.
Certainly, many legislatures have codes designed to criminalise conduct which steps over a threshold into incitement to hatred or violence. But these codes have often been accused of being inadequate.
I do not dispute the thesis that to embrace freedom of speech means having to listen to things which we do not like and things with which we profoundly disagree. What I do say is that the right of free speech can be enhanced. How? By ensuring that those who feel wounded by hateful expression have an effective means of being heard and of remedying any harm done to them by the barbs contained in those words.
The historical paralysis often experienced by victims of bigotry is no accident. As Rita Kirk Whillock, of the Southern Methodist University, has put it in an essay on hate as a stratagem for achieving political and social goals, ‘the use of hate as a rhetorical stratagem allows (the speaker) to accomplish four specific goals: to inflame the emotions, denigrate the designated outclass, inflict permanent and irreparable harm to the opposition, and ultimately, to conquer’.
The experience of women has often been one of having something to say but saying it to a brick wall in a society dominated by men. Recent research by Catharine MacKinnon and others on the subject of pornography undermines the contention that if everyone is free to talk then everyone is equal and can simply counter opinions which they find offensive. Our defence of freedom of expression can only be enhanced in the end by our concern for the victims of its abuse.
Those of us who believe that words can hurt are seeking a balance. We do not wish a treasured human right to be hedged in by so many qualifications that the right itself becomes more theoretical than actual.
For this reason, we must seek ways of advancing the debate which will not reverse victories achieved in the course of a long international struggle for civil and human rights.
Positive action rather than censorship is the best way of fighting abuses of free speech, although some censorship or criminalisation of hatred cannot be ruled out. For if our constitutions and our treatises on human rights acknowledge the equality of each human being, then why should legal systems be seen to be neutral when children are called ‘dirty gippos’, or when religious difference becomes religious hatred?
There is some evidence that in those areas in Northern Ireland where dialogue forums have been set up across the cultural divide people are moving painfully up a mutual learning curve and are beginning to deal with deep-rooted mistrusts and hatreds.
There are those voices who would outlaw parades of all shades altogether. It is sometimes tempting to regard censorship as a short cut to creating the perfect society. Indeed, it is clear that the right of free speech is not absolute even within the United States. In this country obscenity is prohibited and indecency circumscribed. There are remedies for libel and sexual harassment. Also, ‘fighting words’ which are likely to make the person to whom they are addressed commit an act of violence are inhibited.
For its part, the United Nations Declaration of Human Rights reminds us that the freedom of expression is balanced by other obligations. It states that: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’ and that everyone may be subject to limitations which secure what the Declaration describes as ‘due recognition and respect for the rights and freedoms of others and the just requirements of morality, public order and the general welfare in a democratic society’ (Article 29).
The question ultimately is not if it is wise to limit freedom of expression in certain circumstances — for such limitation in principle is widely acceptable. Rather we may ask if there are means of enhancing freedom of expression so that potential victims of speech and imagery are protected and given a remedy even if that remedy is simply a credible and meaningful opportunity to talk back.
There are at least three particular ways in which the right of freedom of expression may be enhanced by the protection of the vulnerable and by a raising of awareness as to why the broadest freedom of expression is desirable. Education, from the earliest years, in both equality and free speech and in the avoidance of its abuse; support for research into the impact of words and images; the creation of accessible and dedicated public talk-back forums or mediation mechanisms.
In recent years, schools have made real efforts to promote cross-community understanding. The new political climate demands that those efforts be redoubled and extended beyond the schools. We coherently have to shift gear from a culture of conflict to a culture of consensus.
Education has a very important role to play too in helping people to discover new and imaginative ways of expressing cultural identity, ways more consonant with a culture of consensus, ways which can showcase a culture at its best.
The need for public talk-back venues is, it seems to me, the most important issue to raise here. By those I mean places of communication or protest for those who feel marginalised or oppressed by the exercise of free speech by others. So often each side feels that it alone is the victim, it alone is being martyred. By freeing these voices we enhance and advance freedom of speech, vindicating the rights of all, provoking dialogue and, ultimately, better informing public opinion.
The feeling of being put upon by others in the exercise of their free speech requires a very serious and profound response from all those committed to freedom of speech.
It is by such creative and constructive initiatives that I choose to assert the rights of victims of freedom of expression. By recognizing too the relevance of social inequality to this debate we lose nothing.
Those of us who advocate tolerance for free speech can hope to find common ground with those who are principally concerned about the effects of such speech on the vulnerable and the oppressed.
Freedom of expression is a precious human right. We are called to defend it not only against those who would suppress free speech but also against those who have made of that freedom a licence. They use it as a weapon to exploit, hurt or oppress their fellow and sister citizens. They do it cynically, and they do it deliberately. That is the price we pay for that freedom; it is a high price for those who feel the brunt of that weapon’s poison and hatred. By all means let us say to the hard of heart — you are free to speak, but you will never have the last word.
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