The First Amendment only protects us against the government, and that alone makes the NFL's case strong, but they're also correct to limit protest.
One of the great advantages of the ever-increasing plethora of rights conferred upon us by government (except that of keeping the product of our own labor) is that it requires lawyers to adjudicate between them when they conflict, as they so often do. It prevents unemployment among the ever-increasing number of lawyers: and you have only to consider the career of Robespierre to know where the disgruntlement of lawyers may lead.
Lawyers were needed recently to adjudicate between the Mayor of London and a Christian advocacy group, the Core Issues Trust. The latter had wanted to mount an advertising campaign on the sides of London buses exactly in the style of a previous advertising campaign by Stonewall, a homosexual lobby group. That campaign consisted of the slogan ‘Some people are gay. Get over it!’ The slogan proposed by the Core Issues Trust was ‘Not gay! Ex-gay, post-gay and proud! Get over it!’
The Mayor of London, Boris Johnson, ordered that the second advertising campaign, that by the Core Issues Trust, not be permitted. It is part of his job – a small part – to ensure that advertising on public transport complies with certain standards; but it now seems likely that he intervened in this case not because the proposed campaign breached those standards, but for political advantage, to curry favor with a section of the electorate, to whom he was about to appeal in an election. That, of course, was not his stated reason for prohibiting the Core Issues Trust proposed advertising campaign.
Not surprisingly, perhaps, a furious argument has broken out over the right and wrongs of the decision, irrespective of any procedural misdemeanors on the mayor’s part. The homosexual lobby group claims it as a victory for their rights, the Christian lobby group claims it as an infringement of theirs.
There are several points that should be made, I think, in advance of any discussion of the case. The first is that the refusal of an organization to publish something is not itself censorship, unless that organization has the power, which it uses, to prohibit all other means of publication and dissemination of what it refuses to publish. This is not (yet) the case here.
The second is that there are limits to what may be posted on the sides of buses. No one would permit incitements to crime or violence, for example. Where those limits should be is a question of judgment, but no one (I think) would argue that refusal to allow certain advertisements on the sides of buses was, ipso facto, a breach of anyone’s rights to free speech.
The third is that it is not provable that anyone would, in practice, be affected in his attitudes, much less his behavior, as a result of either of these rather crass advertisements. Someone who was intolerant of homosexual behavior would probably not be made tolerant by Stonewall’s campaign, and someone who was tolerant of that behavior would probably not be made intolerant by the Core Issues Trust’s.
This said, it seems to me that the arguments used in favor of the Mayor of London’s action in prohibiting the proposed campaign of Core Issues Trust were false, intolerant and largely illogical. Here is an example of the commentary by a reader in response to the report of the case in the left-liberal newspaper, the Guardian, expressed with less venom than many:
I think history’s judgment [will be] it was the right thing to do. We can’t have fundamentalist groups using public transport to oppress minorities.
The reader expresses, albeit implicitly, the view that what comes after is always morally superior to what came before: on this view, Nazi Germany was, for a time at least, morally superior to Weimar Germany. It is the pseudo-Hegelian view that it is history that makes moral judgments, and not men. More importantly, however, is the idea that the expression of a certain view (which is not an incitement to crime or violence, or even to any proposed policy) is oppressive, rather than merely offensive, to minorities. There is the implication that minorities, whatever they might be, have a right not to be offended.
Another argument in favor of the Mayor’s prohibition in common use was that the proposed advertising campaign by the Core Issues Trust was false and misleading in so far as it implied that the sexual preferences of homosexuals were a matter of choice and were alterable, either by will power or by some kind of treatment. This argument, to succeed, would have to show, among other things, that what is beyond choice and unalterable is ipso facto morally acceptable, though this is clearly not the case; that no homosexual had ever voluntarily controlled his desires, which is again almost certainly not the case; that no homosexual had ever altered his sexual behavior, which is yet again almost certainly not the case; and that the common assertion, which may or may not be false, that almost everyone is to a degree bisexual, should also be prohibited, in so far as it suggests that sexual desires are controllable, since most people act on them.
The Core Issues Trust took the Mayor to court because it believed that he had exceeded his rights to interfere with its right to express an opinion in public. The court decided that he had not done so, on the following grounds that I quote verbatim:
a) advertisements on the side of London buses are highly intrusive;
b) the advertisement would cause grave offense to a significant section of the many inhabitants of London; and, for those who are gay, it was liable to interfere with the right to respect for their private and family life under Article 8(1) [of the European Convention on Human Rights];
c) it was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks;
d) it was not a contribution to a reasoned debate;
e) leaflets, articles, meetings and the internet all provide an alternative vehicle for the expression of the Trust’s message;
f) under the Equality Act 2010, [the transport authority] was under a duty to eliminate discrimination and harassment against gays and to “foster good relations” “tackle prejudice” and “promote understanding” between those who have same-sex orientation and those who do not. Displaying the advertisement would have been in breach of that duty.
This is surely a very sinister ruling, one that implies that liberalism has moved very far from that expressed in, say, John Stuart Mill’s On Liberty. It has sought, and appears on the verge of achieving, a kind of dictatorship, not of the boot-in-the-face variety (though it may yet come to that), but of a subtler kind, the kind that yells ‘Be tolerant, you swine, or shut up!’ As to what you must be tolerant of, it will decide.
Of all the court’s reasons for its judgements, only one was unequivocally respectable, namely e), though it seems to me likely that it might not remain so for long, given the drive to liberal totalitarianism. Reason d) was also strictly correct: but advertisements are not usually contributions to reasoned debate, and Stonewall’s certainly wasn’t either. Some people are gay, it said, implying that this was a reason in itself to ‘get over it.’ But this is only a reason if to the undoubted fact is added the judgment that it does no harm that that some people are homosexual (my own view). Some people are psychopathic; necrophilic; paedophilic; sadistic etc. etc. That they are as they are is no reason in itself to ‘get over it.’ Advertisements are not the medium for complex or subtle moral philosophy; and therefore for the state to allow a ban of one pressure group’s advertisements but not another’s on the basis that they are not a contribution to reasoned debate is dictatorial.
If the advertisements of the Core Issues Trust were intrusive, then so must those have been of Stonewall. If the argument is that, to be rightfully banned, advertisements must be both intrusive and offensive to some group or other, then it is almost certain that Stonewall’s advertisements could and should rightfully have been banned: for they offended, among others, fundamentalist Christians of the Core Issues Trust variety. It is worth remembering that to say almost anything of significance is to offend someone.
How on earth the advertisements were supposed to interfere with the right of homosexuals to respect for their private life the judge did not condescend to say. The Core Issue Trust was not proposing any form of action that interfered with the private lives of homosexuals, nor could any such proposal be validly inferred from its advertisements. The view that adultery is morally wrong does not interfere with the right to respect for the private lives of adulterers, and could not even embarrass adulterers or make them feel guilty unless they half-acknowledged already the moral (though not the legal) wrongness of their conduct. The respect of which this judgment speaks, therefore, can only, in practice, be the kind of ‘respect’ that the street hoodlum demands: show me ‘respect’ or I will knife you. In the matter of disagreement between blackmailers and blackmailed, therefore, the judge came firmly down on the side of the blackmailers.
Reason c), that the advertising campaign ‘was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks’ was an astonishing example of loose thought. As it happens, I appear before the English judiciary quite often as a witness in serious criminal cases, and I have been much impressed by the judges’ precision of thought and expression, so that such manifest special pleading came as an unpleasant surprise to me, and suggests (though I cannot prove it) that the judge was herself acting in conditions of fear.
Who, in Reason c) was doing the perceiving? Most likely, it seems to me, were homosexuals, or at least some proportion of them. Whether their perceptions were themselves reasonable was evidently not a question that occurred to the judge. It is, after all, possible to criticize people without hating them or wishing them ill; and paranoia is a common feature of human psychology. In other words, the judge implied that the taking of offense was its own justification, though presumably the taking of offense justified the protection of only some offended groups since it is impossible to protect everyone from what offends them, almost everything offending someone. Thus the judge in effect ruled that a particular group was to be protected from adverse criticism and thereby outlawed freedom of opinion, or public expression of opinion, on matters which are far from being beyond dispute The offensiveness of leaflets, articles and meetings (the alternatives to the advertisements cited by the judge), after all, would be just as great, in the case of leaflets and meetings probably even greater.
The assertion that the advertisements would increase prejudice and therefore violence against homosexuals seems to me to rest on empirical assumptions that are probably false. It is at least possible, not self-evidently absurd, that the initial advertisements of Stonewall raised the hackles of those inclined to have their hackles raised; and that the banning of the advertisements of the Core Issues Trust would raise them even further, as being an exercise in illegitimate power. As for those who offer violence to homosexuals, they should be dealt with accordingly, and in my view severely. Violence in society is much more a product of the legal tolerance of, and leniency towards, criminal violence than it is of prejudice.
Reason f) fails for the same reasons that much of reason c) fails: and this is so even without considering the inherently liberticide effect of the legislation that it interprets.
Having said all this, let me make clear that I reprehend the campaigns of both of Stonewall and of the Core Values Trust as fatuous and irritating, though perhaps appropriate in some sense to an age of ADHD. The only real beneficiaries of their idiocy have been lawyers, half of them (those defending the Mayor’s decision) working at taxpayers’ expense. Not surprisingly, the Core Values Trust has appealed the decision, meaning that even more public money will be funneled into lawyers’ pockets thanks to a conflict over disparate and opposing rights granted by a parliament of lawyers.
Tolerance is a habit of the heart much more than it is a product of legislation. I was very glad to see that one famous campaigner for homosexual rights called Peter Tatchell opposed the Mayor’s ban on the classical Voltairean grounds that he disagreed with what the Cores Issues Trust said, but defended (perhaps not to the death, perhaps, let us not go in for Gallic exaggeration or histrionics) its right to say it. This is admirable but alas all too uncommon. Intolerance comes more easily to Man than its opposite.