Isaiah Berlin’s Two Concepts of Liberty frames liberty in two senses: “negative” and “positive.” The use of these terms is not normative but rather a description of how such liberties function within the modern post-war liberal state.
Negative liberty he described as “the area within which the subject—a person or group of persons—is or should be left to do or be what he is able to do or be, without interference by other persons?'” This is sometimes referred to in shorthand as “freedom from,” and serve as a shield from state interference rather than something which can be affirmatively imposed on private parties.
Positive liberty, on the other hand, “is involved in the answer to the question: ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?” This is commonly referred to in shorthand as “freedom to,” and is so described because such rights are delegated to you by the state and those rights can be wielded, like a sword, to force others to accommodate your exercise of that right.
The societies in which most of us live mix positive and negative liberties together in the bundle of rights we are able to exercise. What particular mix exists in a particular place is the result of a political settlement. A “right to healthcare” is a freedom to, positive liberty, because in the states which have it the state funds healthcare mandates at the end of a barrel of a gun; the state forces others to provide that “freedom” to you.
By contrast, the American perception of freedom of speech is, overwhelmingly, a negative liberty, one which can be freely exercised but which does not permit others to be required to listen to, or carry, it. Without restating chapter and verse of First Amendment law, the First Amendment and its related interpretive rules are directed towards creating a zone of non-interference from state intervention – or private entities performing state functions – within which, subject to clear and objectively-definable outer limits (true threats, direct incitement, and the like), the freedom to express one’s ideas without a legal sanction is more or less absolute.
The United Kingdom has long been my area of focus for free speech work. It can be argued, in my view fairly convincingly, that the United Kingdom does not possess free speech of the type the Americans have – by which I mean, there is no zone of non-interference within which one may nonviolently express thought and be completely safe from the threat of arrest.
There is, however, a positive right emerging in the UK for freedom of expression, one being championed by that country’s leading free speech activist group, the Free Speech Union. This positive right emanates from the Equality Act 2010, a piece of legislation which was enacted to be the United Kingdom’s answer to the U.S.’ Civil Rights Act of 1964. Unlike the Civil Rights Act, however, the Equality Act goes further, in that it protects not just the characteristics of sex, race, and religion, but bundled together with the “religion” category in Section 10 of that Act it also protects belief as a protected characteristic. The Act continues by defining the term “Belief” as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”
In addition to public bodies, the Act also provides, per Section 29, that private providers of goods or services to the public cannot discriminate in their provision of services to any person based on such a protected characteristic – so, for example, a pub cannot eject you simply because you’re Irish, or gay, or a woman, or trans.
The presence of philosophical belief within the protected categories, however, has left an opening under UK law for holders of unpopular or minority opinions to utilize the Equality Act 2010 to force public bodies and private providers of public accommodations to carry their speech. The FSU has successfully represented its membership to, for example, procure an apology and reinstatement for an Open University professor who was discriminated against for expressing gender-critical views. In another, much more recent, case, the FSU has threatened legal action against a pub landlord in Brighton – which is historically the UK’s most LGBT-friendly city – for ejecting a gender-critical group from his premises because he disagreed with their speech.
Gender critical points of view are not the only type of viewpoints which are protectable under the Equality Act: in principle virtually any viewpoint constituting a coherent philosophy, including climate change or environmentalism, could be covered. As a result, I think that if the FSU’s lawfare strategy – which is prototyping what it looks like to use the Equality Act to enforce right-coded viewpoints – is successful, we will likely see similar litigation from other groups trying to get their opinions into the faces of their political opponents. Imagine, if you will, a group of Satanists or atheists trying to force the restaurant below St-Martin-in-the-Fields to host their weekly meet-ups.
The Free Speech Union cannot be blamed for using the positive liberties conferred by the Equality Act – a “freedom” which arises because the state has made a policy choice that achieving “equality” in all domains is so important that even the rights of others to disassociate from their philosophical opponents must be subordinated to it – to expand the scope of permissible expression in that country. It is quite literally the only tool they have to achieve their political objectives, given that the UK has no First Amendment of its own, and indeed has many legislative provisions (Public Order Act, Terrorism Act, Online Safety Act, Public Order (Hate Crimes) (Scotland) Act, etc.) which police political expression. Trying to use the UK’s legal rules to expand the scope of free speech within the bounds of that legal system is sort of like showing up with a knife to a gun-fight. (Not that anyone in the UK would know what a knife or a gun is.)
The framing of free speech as a positive right, and the absence of an objective principle whereby one form of gender-critical expression is protected under the Equality Act whilst another constitutes a criminal offence, strikes me as not only deeply unsatisfactory but also one which cannot last.
I’m pretty sure I read somewhere that “[e]very kingdom divided against itself is brought to desolation, and every city or house divided against itself will not stand.” The UK’s current speech rules require freedom of speech to be brandished like a weapon, not carried like a shield. This is unlikely to result in freedom of speech becoming more popular over time.
In this system, political conflicts over free expression will not be resolved by free citizens choosing what speech they want to hear, but by a form of document-based street brawling where lawyers, instead of heavies, are called in to bludgeon political opponents in expensive trials before a state-appointed referee. And, as now, it will continue to be the case in that country that one man’s criminal hate speech will be another man’s Equality Act-protected characteristic. Under such a regime, how long could any kingdom, to say nothing of the United Kingdom, stand?
Image licensed CC0.
