Leviathan’s New Censors

Look around the world at the moment and you will find that the most successful political movement across all continents is the growing threat to free speech from censorship by governments of all stripes, sometimes assisted by private sector companies and NGOs. These attempts to censor free speech, or even to suppress it completely, vary greatly. Some are vast multi-governmental, public-and-private, agreements to co-operate on suppressing information that undermines and conflicts with narratives such as the Covid lockdown arguments; others are local and small-scale—such as the Birmingham (UK) municipal prosecution of a pro-life woman for the crime of praying silently a little distance from an abortion facility—that reflect sweeping changes in social morality (at least from the perspective of town hall officials).

Size does not, of course, define importance. The extension of censorship to one’s private thoughts—which the authorities must guess in order to prosecute them—is an immense expansion of government power. “They can’t censor our memories,” says a repentant Soviet apparatchik in Ninotchka. Well, now they can.

Another example of the seemingly small-scale but fundamentally significant suppression of free speech, also from the UK, was recently highlighted by Jonathan Turley in the New York Post: “Last year, Nicholas Brock, 52, was convicted of a thought crime … The neo-Nazi was given a four-year sentence for what the court called his ‘toxic ideology’ based on the contents of the home he shared with his mother in Maidenhead.”

Now, Brock is a neo-Nazi, and the racist documents and iconography in his home were truly repulsive. However, as the judge pointed out, he had apparently made no effort to communicate his “toxic ideology” to others, is fifty-five years old, lives with his mother, and has limited mobility. This picture drawn by the judge suggests that Brock is a harmless crank. Could he perhaps turn into a dangerous one? Well, it’s possible. But a free society can’t go around imprisoning harmless cranks because they might turn into something worse.

That’s what the judge did, however, sentencing him to four years in prison, which in today’s Britain would be a stiff sentence even for some violent crimes. He added, “I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.” That statement is hard to understand other than as a confused justification for sentencing someone to prison for holding unpleasant political views.

And the detective in charge of regional counter-terrorism—though terrorism didn’t seem to figure in the court case—drove home this dubious conclusion still more ominously: “We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.”

“Toxic” does some heavy lifting in both their statements. Merriam-Webster’s Dictionary says: “The meaning of TOXIC is containing or being poisonous material especially when capable of causing death or serious debilitation.” That seems a strong condemnation for keeping a collection of Nazi memorabilia which, however repellent, isn’t a virus borne on the wind to poison innocent neighbours. As far as is known, Brock’s political opinions simply rested idly on a table—“potentially” but not actually doing harm to anybody.

Not surprisingly, therefore, when people in the UK go so far as to express in public political opinions that are disfavoured by those in authority, they run into legal or quasi-legal attempts either to punish or to deter them from using their common law right to say unpopular things that have not been expressly banned. Four years ago Konstantin Kisin, the Anglo-Russian satirist and writer, cited the figure of 3300 arrests in the UK for words written on social media, compared to a mere 400 in authoritarian Russia. Even if some of those words are threats, the comparison is disturbing. And if newspaper reports and personal anecdotes are any guide, many more ordinary Brits have felt PC Plod’s hand on their collar in the intervening years.

(I will not deal here with the rioters brought before the courts following the murders of the three young girls in Southport. These cases blend physical violence and political opinion, and we need to separate them when judging the justice of the sentences, the propriety of the accelerated trials, and the apparent priority given to some punishing some criminals over others depending on which “community” they came from. I will return to this topic in a later Quadrant.)

Scotland and Ireland are trying to match or overtake the English courts in their determination to restrict free speech on controversial issues. Scotland has passed legislation that seeks to imprison people for expressing racist and offensive comments around the domestic dinner table. And proposed Irish legislation would “criminalize possession of material deemed harmful”—Brock’s offence made vaguer and more of a catch-all—punish crimes against, among other things, “peace”, and use the criminal law to counter racism and xenophobia. Indeed, the underlying direction in all these innovations suggests an attempt to use the criminal law to enforce progressive political attitudes and—the same thing from another angle—to make the attitudes opposite to progressivism politically unrespectable.

Of course, it’s not necessary to make Nazism unrespectable; the Nazis did that very effectively and for all time. But progressives have a serious problem in distinguishing even passers-by and mildly liberal opponents, let alone conservatives, from Nazis. So the anti-free-speech laws they pass should be examined sceptically in order to protect legitimate opinions from over-zealous legal drafting and innovative judicial interpretation. How would the courts in Ireland judge charges of xenophobia against those politicians and activists who now oppose the government’s policy of massively expanding immigration? Why have governments in the UK and the US brought in the toughest anti-harassment laws against the least harassing form of the offence, namely silent prayer conducted from a distance? And will some of the penalties imposed on the Southport “rioters” and those who have sympathised with them in tweets be reduced in the light of criticism that they seem disproportionately severe for first offenders and in some cases limit free speech too.

Public reactions in all these cases show that for ordinary citizens support for the idea that “this is a free country” remains important. A tide may be turning.

Australia’s government meanwhile also has charges to answer on free speech, but they arise in the different context of the larger multi-government push for stronger control of the media (dissident as well as mainstream) in order to protect its own official “narratives” from being subject to subversion or correction (according to taste). Like other governments—notably the US, the UK, and German governments—Australia’s federal government has recently proposed new legislation to give the country’s leading media regulator—the ACMA—powers to investigate, prosecute and fine social media for the new offences of misinformation and disinformation. The fines could rise as high as 5 per cent of their global revenues.

When this kind of proposal comes up, it’s generally said that no one really knows what these terms mean. That’s not really true, however, because outside Australia there has been an almost Talmudic debate in the last two years about their meaning—and its conclusions are revealing. Misinformation is spreading false information unintentionally; disinformation is spreading false and/or damaging information intentionally and with malice aforethought; and—most interesting of all—malinformation is telling the truth with malice aforethought.

Any confusion you may feel about these distinctions will probably be clarified by Harry Truman’s old joke at the expense of Republicans. He offered them a deal: “If they stop lying about me, I’ll stop telling the truth about them.” Truman was threatening his opponents with “malinformation” or truths they would rather keep hidden.

For a long time—starting after Brexit and the 2016 Trump election, becoming more angry and more consequential in response to the Covid pandemic—the debate from which these terms emerged took place in the corridors of power under the radar of public debate. The debaters were the governments, the establishments, their intelligence services, Big Tech, and their political allies in the media and other major institutions. Their purpose was to direct the flows of information to society to ensure that Brexit and Trump could never happen again. The Covid pandemic gave them the justification for establishing a centralised system of information control that might accomplish that, and the tools for giving government an effective monopoly of legitimate information. And at least in theory, the ban on malinformation justifies prohibiting the publication even of accurate information—in the UK, the term used is “accurate but harmful”.

But even as the EU’s Commission President, Ursula von der Leyen, was recently proclaiming that countering disinformation was to be the Union’s next great mission, it all began to fall apart. Elon Musk acquired Twitter and asked three formerly “progressive” journalists to look into its files. They found a series of scandals, from suppressing accurate criticisms of Covid policies by distinguished doctors because they contradicted official medical advice, to slandering ordinary Americans as pro-Russian assets because it helped to prop-up the fictional scandal of Russiagate. Other leaders of Big Tech rejected these allegations and denied co-operating with the Biden administration’s demands for such censorship—as, of course, did the administration itself. Finally, Facebook’s Mark Zuckerberg sent a letter to Congress admitting that he had in fact yielded to the administration’s pressure to censor Facebook—and that he regretted doing so.

In short, countering disinformation is just another way of protecting government and its friends from the inconvenient results of free speech.

In Canberra, however, an important lesson has been learned. The bill to regulate Big Tech in order to deter and punish disinformation and misinformation will now be amended to disallow any charges of either offense against government officials or its agencies.