We publish below an excerpt from the Law Society’s annual human rights lecture given by Lord Justice Sedley on July 27th last
Lord Justice Sedley began by describing the case of William Hone, a publisher of political tracts disguised as parodies of the Anglican liturgy, who was charged with blasphemy and acquitted by a jury in 1817.
Fast forward to the 20th century, by when the received definition of obscenity has become matter tending to corrupt and deprave those likely to come in contact with it.
That is how Lord Cockburn defined it in 1868, excising from the Obscene Publications Act 1857 the intent to corrupt morals, which its mover, Lord Campbell, had assured parliament was the Bill’s sole target, and substituting whatever a jury decided to make of the book.
What then were corruption and depravity? Lord Birkett, an advocate of long experience, took it be “the deliberate excitation of sexual feelings”. Sir Thomas Inskip KC, as attorney general, opening the case against Heinemanns for publishing a novel about a woman who worked as a prostitute purely because the money was a lot better than factory wages, said: “This book deals with what everybody will recognise as an unsavoury subject – gratification of sexual appetite.”
Mervyn Griffith-Jones QC, remembered as the advocate who asked a jury whether they would want their servants to read Lady Chatterley's Lover, was once asked by a colleague how he advised the DPP on obscenity cases: "I don't know a lot about literature," he said. "I just read what the director sends me, and if I get an erection we prosecute."
This was not as jejuneas it now sounds. Punishing others for what excites the punisher is familiar to anyone who has endured an English public school education, and a number of other forms of education too. But it goes far wider than the suppression or gratification of prurience by the enforcement of prudery.
The basis of most censorship is not the consequentialist reasoning by which it is commonly justified, but the unadmitted anger or embarrassment of the censor – a human enough emotion that every parent encounters, but not an entirely sound basis on which to send people to prison. Yet, are there not instances where consequentialism is justified?
Discussion of the permissibility of limiting freedom of speech travels over vast theoretical tracts. Rather than try to survey them, let me limit myself to two points.
One is that, while most governed societies place a premium, sometimes a very high one, on the freedom of individuals to say whatever they think, all of them accept the need for a limit. Even the First Amendment does not permit you to shout “Fire!” in a crowded theatre.
A universe, nevertheless, separates such a free-speech culture from that of, say, China, where the state is currently constructing its Green Dam Youth Escort firewall to keep unofficial ideas away from its millions of internet users, or of Islamic states where blasphemy is widely defined and cruelly punished.
But you don’t need to look back very far back to see a time when the First Amendment gave no worthwhile protection to political dissent: in 1907, almost a century after William Hone’s three trials, the US supreme court upheld the conviction of a Colorado newspaper for publishing a cartoon attacking political corruption, along with the trial court’s refusal to let the publisher prove it was true; and as recently as the 1950s neither the First nor the Fifth Amendment did much for the House Un-American Activities Committee’s victims.
One looks back, beyond that, to a Europe in which heresy meant torture and execution. The line between free speech and censorship has shifted massively over time and can be expected to go on doing so as political and moral cultures go on changing.
My second, and related, point is that within our own lifetime we have exchanged one form of consequentialism for another.
Whether by choice or under the pressure of changes that we can’t control, western societies have pretty well abandoned the notion that letting people read and see sexually arousing or politically radical material will cause them to degenerate morally or become civically disaffected.
If in spite of this we draw a strong line at child or violent pornography, it is because it is inexorable that children or vulnerable adults have to suffer in order to produce it. The overt incitement of violence remains another agreed taboo.
What has come to be substituted for the idea that the consumers of undesirable material will become morally corrupted or politically disaffected is the quite different idea that in a democracy everyone, however marginalised, is entitled to respect.
This is arguably another version of consequentialism. Its premise is that every human being is of equal worth – an idea that less than a century ago was quite alien even to developed societies, which were quite ready to understand mankind in terms of racial genotypes and to see it managed by segregation and eugenics. It accepts correspondingly that individual choices, however unwelcome to others, and personal autonomy, however eccentric, are entitled to be respected.
Political scientists and historians probably have a better take than jurists like myself on the synergy between economic liberalism and human rights, and perhaps too on the prospects for the latter as the former implodes and the state is recalled from retirement into action as a firefighter.
But the margins of toleration still depend on a paradigm of cause and effect: interference with individuals’ autonomy and choice diminishes the respect that society owes them; abstention from interference maximises their own and society’s potential. This is both the case for toleration of unpopular speech and the case for forbidding hate speech . . .
Lord Justice Sedley went on to discuss the historic and contemporary experience of literary censorship, incitement to hatred legislation, and the publication of misleading information, especially in the scientific area.
The full lecture is available on the Human Rights Committee page of the Law Society’s website, www.lawsociety.ie