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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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A teenager has been arrested for posting a picture of a burnt remembrance poppy. Nick Griffin walks free despite tweeting the address of a gay couple who won their appeal against discrimination advocating a "British justice squad" who should "show them a bit of drama".

Free speech assumes the agency of the speaker, but the justice system presumes the opposite for the listener. In current UK legal parlance: sentences which advocate meet with sentences imposed for “inciting”. In this curious jargon of “incitement,” the passivity of those upon whose ears the encouragement falls is taken for granted. Words seem immensely powerful, regardless of the speaker, for in their wake what can we listeners do, but act?

This causal model is similar to the justifications given by the BBFC for certificate refusal, or previously the Lord Chamberlain in theatre censorship; the logic runs: “we must protect the vulnerable who may be damaged, or act upon these scenes”. Yet, the historical lineage of this parallel system reveals the core, anti-democratic principles upon which “incitement to” rhetoric is based. As Kendall Philips points out, censorship of films and theatre is historically rooted in racist and classist assumptions. “Incitement to” legislation on free speech seems to take a similar, egocentric, hostile view. Surely no individual thinks, “I am incapable of judging, so others must be prohibited from speaking, lest I act upon it without judgement”? Instead, each thinks, “others are incapable of judging, the stupid masses who will act without thinking,” underwritten with “unlike me”.

In the United States, the Brandenburg test is used to determine First Amendment protection of incitement speech on the basis of advocating “imminent lawless action”. However, this is problematic as it in no way accounts for the power relations between speaker and listener. In essence, one could be prosecuted for advocating a lawless action, in a situation where no criminality would ever conceivably materialise. Instead, it must be seen that speech is embedded within a social context. Those who exert greater authority in society, even if that be only through charisma, should bear a greater responsibility, for it is more likely that their “incitement” would lead to actual criminality.

Free speech is valuable and should not be restricted if solely offensive, for this does nothing more than lay bare the speaker's bigotry. Instead, in cases of “incitement,” surely the position from which the speaker speaks should be judged. Perhaps the most prominent example is the culpability of certain sections of the press for a culture in which there are mounting attacks upon the disabled, immigrants and gay people. While this is deeply troubling, the problem there, I suspect, lies largely in what remains unsaid and which constituent parts are held up as exemplars of the whole, rather than what is explicitly said. On the other hand, it is an entirely different case when the press lend their credibility directly to such causes.

To conclude, though: since Nuremberg, following orders has not been an acceptable defence for criminal conduct; one must instead act as one judges to be morally right. Furthermore, in that worst of all possible cases, those giving the orders were also prosecuted. However, it is authority and one's position in society, or a subset thereof, that distinguishes an order from “incitement,” which seems, somewhere along the line, to have been lost.

As Samuel Beckett asked: “What matter who's speaking?” Judge for yourself.