OBEY Giant

Kim Schnitzel – Freedom of Speech: an act of domination?

Western capitalist states grant their subjects freedom, often doing so in the first few paragraphs of written constitutions. One is hard pressed, indeed, to find a political tendency that does not appeal to freedom. The BNP calls its newsletter The Voice of Freedom, Tories accuse Labour of putting social equality before economic freedom and the Liberal Democrats declare their identity with freedom by name. Labour, furthermore, seeks to balance freedom and equality, whilst the Trotskyist Alliance for Workers Liberty is dedicated to achieving freedom for workers and the oldest Anarchist newspaper in the country is simply called Freedom.

It is curious that freedom is both a central ideal of capitalist society and a common reference point for Anarchists and other radical critics of this society. Whenever the police use (excessive) force to break up a demonstration, for example, they are criticised for undermining freedom of speech or freedom of assembly – the very rights they are supposed to protect. While it is not uncommon that the police does indeed violate the law when enforcing order, ultimately this criticism is based on a misunderstanding of what the right to freedom of speech truly represents.

The Right to Freedom

If someone grants others the right to something such as the right to protest, this someone claims the authority to do so and thus the entitlement to rule over actions and speech. If we – the authors of this piece – started granting our readers the right to form their own opinions about our writing, it would be laughable; we are clearly in no position to grant or withhold such a right, and our readers would reject our jurisdiction over the matter. The state, however, successfully manages to grant people the right to something that they do on their own and without anybody’s permission anyway. People think, they speak their mind, they assemble – they can do this without any license. Granting a right to such basic activities is quite a claim to authority, and is only successful because the state has a monopoly on force that goes unchallenged by the vast majority of its citizens.

The logical prerequisite of granting a right is authority. Hence, domination is presupposed when a right is granted, and not simply when a right is violated or restricted. The state’s blanket declaration that “you may express your opinion” therefore appears in a less benign light: any and every opinion of its subjects is by virtue of the state’s grace – this is the claim laid when the state grants freedom of speech, opinion and assembly.

Freedom of speech – a productive force for rule over a society based on antagonistic interests

As a result of the way in which production and consumption is organised, the members of bourgeois society are mutually dependent yet have antagonistic interests. The division of labour implies that economic actors produce for each other, but they do not do so according to a common plan addressing needs and wants. Rather, all economic actors insist on their economic freedom to deal with their respective private property as they see fit: just because someone needs bread and butter is no sufficient reason for them to get it nor a sufficient reason to produce it. Commodities are instead exchanged in situations in which each side’s advantage is the other’s disadvantage: a low price is good for the buyer, a high price good for the seller. The state protects private property and thus guarantees this freedom, maintaining the system so as to ensure the economic success that is produced by the universal competition of its subjects.

Those that are involved in this competition – workers, capitalists, landlords, pensioners, etc. – inevitably confront the state with their demands for the conditions of success, whether that be for themselves or for what they think is best for the nation. Some want higher taxes, others want lower taxes; some lobby for workers to receive better healthcare so they have less sick days, others oppose this asserted “pampering”; yet others argue that environmental protection should trump short-term growth etc. Competing demands that originate in antagonistic interests inevitably result in the production of conflicting answers. The freedom to announce and argue for these answers – freedom of speech – is recognised by democratic states as an ingredient for effective rule over a society full of antagonistic interests. As long as citizens accept that all social change ought to be accomplished through the proper political channels, the democratic state welcomes what it sees as constructive proposals – even protest.

The defence of speech against its consequences

Freedom of speech therefore has its limits like any other freedom guaranteed by the state. Indeed, no democratic state in the world grants freedom of speech without restriction. Firstly, no state grants its citizens the right to say whatever they want[i]. Secondly, democratic states ask their subjects to restrict themselves to freedom of speech, i.e. to refrain from letting actions follow words. Thirdly, they take particular care of that restriction when it comes to the political system itself. For example, the British state asserts its existence in all eternity with the assertion that Parliament is sovereign and that “no Parliament can pass laws that future Parliaments cannot change”[ii]. The rule of Parliament is eternal and not even Parliament can change that. The one thing that is not given up to a meaningful free exchange of ideas under the protection of the state is the political system itself.

Case Study A: The worries of the British constitutionalists.

In fact, there is a bit of debate in the British legal literature about the scenario of what would happen if an “extremist” party took over Parliament, i.e. a party which does not accept Parliament’s sovereignty and parliamentary democracy. No serious participant in this debate supports Parliament’s supremacy in such a case. For example, Albert Venn Dicey, a well-reputed author on the UK constitution, believed that in certain extreme circumstances the monarch could dissolve Parliament single-handedly, on the condition that “an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors … A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation”[iii]. In other words, the dissolution of Parliament in extreme situations is part of the royal prerogative to assert the “wishes of the nation” against Parliament.

In a similar fashion, Trevor Allan, a professor of law specialised in the relations between the courts and Parliament, writes: “The practice of judicial obedience to statute cannot itself be based on the authority of statute: it can only reflect a judicial choice based on an understanding of what (in contemporary conditions) political morality demands. The limits of that practice of obedience must therefore be constituted by the boundaries of that political morality. An enactment which threatened the essential elements of any plausible conception of democratic government would lie beyond those boundaries. It would forfeit, by the same token, any claim to be recognised as law.”[iv]

It is therefore clear to these scholars that any move to abolish parliamentary democracy must be suppressed by suppressing Parliament: debate has its limits.

Case Study B: The banning of the CP in Western Germany.

When in 1956 the Federal Constitutional Court of Germany banned the Stalinist Communist Party of Germany, it quite nicely expressed this logic of freedom of speech granted by the state: “This [multi-party] principle wants to ensure the existence of multiple political parties, at least the possibility, that at any time new parties can be founded freely. This not only constitutionally excludes the position of one party as the ‘unity party’, but this also sets as an article of faith that no political party can claim a monopoly on correct political insight and objective, on correct political behaviour; because such a monopoly party is in its essence does not aim to take part in the state but instead to embody state power by itself in itself. Contrary to this, liberal democracy must avow the opinion, that in the area of political basic views, provable and irrefutable truth does not exist.”[v]

When the court banned the Stalinist communist party it did not examine the arguments presented by this party, it did not investigate whether they were right or wrong, but insisted that there could not possibly be proof that they were correct[vi]. The irrefutable truth of the Federal Constitutional Court is that there must not be irrefutable truth: it decreed the abstinence from such truths to anyone involved in politics.

While so far British legal debate has abstained from this kind of creative ‘argumentation’ used by the German constitutional court, the result is effectively the same. Pluralism and freedom of speech evidently do not mean giving in to the forceless force of the better argument when it comes to pluralism, freedom of speech and the basics of the democratic order. In this realm, they are not means to let the better argument prevail. On the contrary, precisely this is excluded, if a priori it is decided that whatever the outcome it cannot be acted upon.

For a concrete example: either the nation state and capital imply poverty and misery for many or they do not. If it is the former then this would be a good reason to get rid of capital. This requires investigation, arguments and debate which then inform action. To exclude actions based on the result of this debate is to exclude the possibility of a reasonable society without misery.

Yet, the restriction not to act does not violate freedom of speech. First of all, freedom of speech indeed makes no guarantee beyond speech itself. Secondly, freedom of speech is a guarantee of freedom in disregard of the content of speech: a statement is defended on the grounds that it is a statement, not because it is right, correct, important etc. With this abstraction from content relativism is implied: you may have an opinion because it is an opinion, but those who disagree with it – regardless of how ridiculous their reasons – are also entitled to their opinions. No matter what the evidence for a particular political theory is, it cannot be implemented if it violates the freedom of others, such as those who express their freedom by refusing to accept this evidence.

This logic is at work whenever people respond to critique by pointing to their entitlement to opinion and their freedom to voice it. This is both presumptuous and humble. It is presumptuous because it insists on opinion, it disregards critique instead of engaging with it. It is humble because it wants nothing but to voice an opinion. It makes no attempt to change or influence the world.

This article was written by Kim Schnitzel of the Kittens Editorial Collective. A longer version of this article is also available at:http://antinational.org/en/freedom-and-equality.


[i]This is more pronounced in European states – “anti-extremism” clauses in Germany, libel law in the UK – than in the USA, but with the arrival of the Patriot Act the USA also introduced limits on what can be said, e.g. in support of a group on a terrorism list. http://www.nytimes.com/2010/02/11/us/11law.html

[ii] http://www.parliament.uk/about/how/sovereignty/

[iii]Cited from http://en.wikipedia.org/wiki/Royal_Prerogative_(United_Kingdom), emphasis added

[iv]Trevor Allan, The limits of parliamentary sovereignty, emphasis added

[v]“BVerfGE 5, 85 – KPD-Verbot”, http://sorminiserv.unibe.ch:8080/tools/ainfo.exe?Command=ShowPrintText&Name=bv005085, our translation, emphasis added

[vi]The communist party argued that it represented a future that would inevitably arrive. According to its philosophy of history, socialism was the next step of civilisation, but the time for socialism was not ripe yet. Hence, the party would not at present seek to abolish the Western German state. For a critique of the underlying theory, see “Historical Materialism – an anti-revolutionary theory of revolution” at http://antinational.org/en/historical-materialism.

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