Last week, Graham Norton was asked in an interview about “cancel culture.” He was unequivocal:
“You read a lot of articles in papers, by people complaining about cancel culture. And you think, “in what world are you cancelled? I’m reading your article in a newspaper or you’re doing articles about how terrible it is to be cancelled, so you know – I think the word is the wrong word. I think the word should be “accountability.” You know John Cleese has been very public recently, complaining about this, and it must be very hard to be a man of a certain age who’s been able to say whatever he likes for years, and now suddenly there’s some accountability. You know, it’s free speech but not consequence free.”
The interviewer then asked him about JK Rowling, specifically referencing the “deluge of anger, rage and attempts at censorship which seem to me to be more than a middle-aged man not being able to say something he used to say in the days of empire.”
He was somewhat more nuanced about this, perhaps recognising – rightly – that whatever he said about cancel culture in respect of JK Rowling was going to be assumed to be a contribution to the debate on sex and gender:
“When I’m asked about it, I become part of this discussion, and all I’m painfully aware of is that my voice adds nothing to that discussion and I’m sort of embarrassed I’m drawn into it. And if you want to shine a light on those issues, talk to trans people, the parents of trans kids, doctors, psychiatrists, someone who can illuminate this in some way. As “bloke off the telly” your voice can be artificially amplified… and most of the time that’s a distraction, and it’s just it’s for clicks, for whatever, to put my name in a headline. “Graham Norton slams,” – “Graham Norton defends“ – “Graham Norton weighs in on” and actually Graham Norton shouldn’t be in your headline. If you want to talk about something then talk about the thing, you don’t need to attach a Kardashian or a whatever to a serious subject, the subject should be enough in itself. You know, it’s the Michael Gove thing about experts, we’ve got enough experts. No, please, can we have some MORE experts. Can we rustle up some f*cking experts and talk to them. Rather than ‘man in shiny pink suit.’”
Perhaps unsurprisingly, this second point was taken up with less vigour than the first. There has been a persistent analysis from genderists that women (and a few men) who are hounded online or in person for expressing feminist views are experiencing only “accountability” or “consequences,” no matter how grave the threats or how significant the involvement of state bodies (more on this later). This analyis causes understandable anger among those who have been on the receiving end of serious threats. JK Rowling was one of a number to make the point, causing the spotlight to swing back to Norton himself. In particular, his previous attitude towards vulnerable women attracted attention. Norton, now himself the victim of a Twitter pile-on – or “consequences” as he might put it – deleted his Twitter account.
Legal Feminist is in favour of free speech and deplores attacks on anyone for the lawful expression of their views. But it does rather illustrate the difficulty with the amplifying effect of social media on freedom of expression, and that brings us to Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The argument propounded by Graham Norton is that if one person has the freedom to hold and express her opinion, another has an equal and opposite freedom to impose “consequences” in the form of her own expression of opinion. And where this means that people put forward impassioned arguments from diametrically opposing viewpoints, this is true. Where one person puts forward a well reasoned argument and another replies “lol r u stupid” it is also true. Where it fails is where “consequences” is used in the manner of a headteacher scolding an unruly class – where it means punishment, not disagreement – and where this has a dissuasive effect on others participating in a free exchange of views.
The European Court has long recognised the concept of the “chilling effect” in Article 10 cases. What this means is that where one person suffers serious adverse consequences of their otherwise lawful free speech, others will be dissuaded from following suit.
There are some examples of gender critical speech in which plainly the state has interfered, or where a classical “chilling effect” of state involvement can be seen in the form of criminal proceedings or the threat of it. An obvious example is that of “Harry the Owl,” aka Harry Miller of Fair Cop, who was expressly found by the High Court and the Court of Appeal to have encountered exactly that chilling effect when he was visited by a police officer to ‘check his thinking.’ The co-option of the state authorities, with the threat of prosecution or recording of a hate ‘incident,’ would undoubtedly have such an effect on others considering contributing similar thoughts to a discussion.
Typically, chilling effect cases are ones in which the state is involved or implicitly involved in the silencing of a particular view. Other cases aside from Miller which fall within the same category might include the prosecution of Kate Scottow (whose expression of opinion was held to be lawful speech within the meaning of Article 10) and the requirement that Maria McLachlan, herself a victim of a battery, must refer to her male assailant in court using a female pronoun.
Generally, human rights (save in particular circumstances which are not the focus of this blog) have a vertical, not a horizontal, effect – which means that it is the state prohibited from interfering with the rights of the individual, not individuals prohibited from interfering with one another’s rights. However, the state may have a ‘positive obligation’ to prevent interference with freedom of expression. There is precedent in the case of Fuentes Bobo v Spain 39293/98 that an Article 10 infringement may be found where an employee was dismissed for ‘offensive’ remarks. The Court held that the State has a positive obligation to protect the right of freedom of expression – which meant not just that the State must not interfere with the right to freedom of expression, but that it must actively use its powers to support it. (For more on positive obligations, p50 of the Handbook On Positive Obligations is instructive.)
In light of Fuentes-Bobo I think it is plainly arguable that the same must apply where the state has failed to take action against online vigilantes. If the state is indifferent to rape or death threats that amount to a criminal offence (malicious communications) and women who express an unpopular view recieve such threats, it is of little value to describe those threats as consequences. Pausing briefly to note that Graham Norton did at least try to distinguish between disagreement (“accountability”) and a deluge of threats and censorship (he swerved the question and moved onto whether any celebrity should contribute to the discussion), it is nevertheless true that women online DO receive these threats, and that the state seems unwilling to investigate or prosecute the people making them, or to take effective measures to compel social media providers to deal with them. If the ‘consequence’ to a well known individual contributing a gender critical view is a deluge of rape and death threats, the chilling effect on everyone else is obvious. That she may later be able to write about her experience is irrelevant: the chilling effect occurs when another woman, finger poised above her keyboard, hits delete instead of tweet.
At present, the chilling effect on gender critical speech is obvious. Prof. Stock and Maya Forstater lost their jobs. JK Rowling has received enough threats, she says, to paper her house. Harry Miller’s case expressly referenced the chilling effect. A number of women including Kate Scottow (convicted and overturned on appeal) and Caroline Farrow (as yet not convicted, but her critic(s) are working on it) have been prosecuted or threatened with prosecution. Genderists are reluctantly accepting that gender critical views are protected, but maintain that expressing them is forbidden (it is not).
But it is not just gender critical speech which is under threat – there are many views from Brexit to Scottish independence to abortion rights to hijabs on which there will be multiple, opposing views. We have a historically unique situation in which an individual’s ability to express a view has never been more capable of broadcast, and in which the most chilling effect no longer comes actively from the state, but from the moral permission granted to the most censorious and most threatening of the online witch-finders. The state must grapple with this, and soon. You do not have to agree with a viewpoint to recognise that it falls within the parameters of freedom of expression. And as Graham Norton has just discovered, “consequences” is a blandly poor descriptor of a chilling effect.