The Right To Free Speech – It’s Point, Purpose And How It’s Manipulated

It was a standing joke in my family that when I was a baby, my mother couldn’t wait for me to learn to talk, and when I did, she was equally keen for me to be quiet and give her peace. Apparently the questions were never-ending, and they still are.

However, alongside trying to teach me discretion in when to speak, my parents also taught me discretion in what to say. The ability to speak didn’t grant me the right to say whatever I wanted however I wanted to say it, though complaints about ‘she’s being mean to me’ weren’t necessarily tolerated either. My siblings and I were taught very early on that name-calling and lying and various other forms of inaccuracies in speech were not allowed, and, importantly, that listening was as important a part of speech as talking.

These are skills that stood me in good stead when at school. Sit down, listen to the teacher and partake in lessons; that sort of thing. Much later on, as a mature student, university taught me that there are many more dissenting viewpoints than I had ever imagined and each one deserved attention even if agreement could not be reached, and agreement was often unnecessary.

Firstly, let’s define what ‘free speech’ is in the UK as succinctly as possible.

It’s a qualified right protected by article 10 of the Human Rights Act 1998, which incorporated ECHR into UK law. It can include the right to expressing views that others find shocking or offensive, and it includes the written or spoken word. It doesn’t include the right to incite violence or murder, stir up hatred, be defamatory or cause harassment, alarm or distress. So, if someone thinks that rapists should not be jailed (who would?), they have the right to say so, and if they think that rapists should receive a mandatory life sentence, they have the right to say that too.

‘Qualified’ means that there are some restrictions, too many and arguably not relevant for inclusion here.

Few will disagree with most of that, but I suggest that the ‘harassment, alarm or distress’ part is causing harassment alarm and distress in ways unimagined in 1998. I also suggest that most people would agree that if a specific right applies to anyone it applies to everyone – I do not have the right to say something in the same way and for the same reason if you do not have that right – and that for practical, everyday purposes, simply disagreeing with someone does not mean that they can tell me not to voice my opinion. As Evelyn Beatrice Hall wrote in 1906, when summarising Voltaire’s views on the subject: ‘I disagree with what you say but will defend to the death your right to say it.’

Why the unimagined or unintended consequences? Well, fast forward a few decades and what do we have? A society where, in rather too many instances, the listener has the right to decide what was intended by another’s words, whether or not there is a right of reply, whether or not to be offended by those words and in some cases, what the ensuing punishment should be for said offence, and this is evidenced by a variety of recent arrests and prison sentences served for a variety of offences. My silly examples above, I suggest, cause harassment, alarm or distress today in a way that they would not have done in 1906 or even 1998, but should they? And, should that situation silence any conversation regarding sexual crime that doesn’t result in accused rapists being condemned as beasts who should being banished to the ends of the earth for eternity, (never mind the convicted ones)?

Take, for instance, the recent lecture at Abertay University, arranged by Dr Stuart Waiton and delivered by Marsha Sturgeon, a representative of JIMS, a group which campaigns for fair trials.

The University immediately jumped on the fact that the lecture was of a type that did not require senior management approval, but those processes would be reviewed and that the groups views ‘did not reflect the views of the University’. So, apparently the University does not agree that trials should be fair? And, it feels that, in spite of the fact that the lecture was received well, and garnered ‘enthusiastic applause’, the fact that there are students at the university who MAY have been sexually abused and MAY be upset by a discussion about the system that prosecutes offenders, that that discussion should not take place?

On the one hand, students should be given the opportunity to engage with controversial views, but only if there is no possible risk that any student can claim to be upset by them? Did they really mean that? (see: https://www.facebook.com/AbertayUni/posts/statement-on-jims-speakerthe-jims-speaker-session-reported-in-the-press-was-not-/1257410606414350).

The BBC had reported on the JIMS protest in September, highlighting Ellie Wilson’s discomfort at being in the proximity of the group, but failing to highlight that, in another interview, she condemned JIMS for effectively gate-crashing ‘her’ protest. In fact, she chose to organise attendance at the JIMS protest, a protest that was organised to coincide with International Falsely Accused Day, an event that has taken place for the last several years, involving 20+ countries globally, and recognises the growing issue of false allegations. She bandied about her own insults, condemning the group as ‘not educated or articulate’, but interviews with JIMS group members suggest otherwise (see: https://www.youtube.com/watch?v=elrbgU8oYOQ).

Much in the press focussed on the negative, repeatedly highlighting the claim that the JIMS group are ‘rape apologists’ despite continued assurances to the contrary and failing to acknowledge that JIMS’ primary interest centres round the issues of S274/275 as raised by eminent KC’s such as Thomas Ross and Tony Lenehan.

Equal focus has been placed on accusations of name-calling and harassment levied against JIMS, with little attention to the fact that the issues have been in both directions, for reasons explained by Marsha Sturgeon, spokesperson for JIMS, with full responsibility accepted and apology given and the fact that there is a police investigation into the harassment that has been levied against the JIMS organisation and not the reverse (see: https://www.facebook.com/marshasturg).

We can see the level of importance that MP’s place on a fair justice system when MSP Maggie Chapman, also a University rector describes Dr Waiton’s interest as ‘a pet project’

and the outrage culminates in criminal damage to university property justified as ‘strong views’ (that presumably only certain people are allowed to hold) -  personal attacks on him and his work and calls for any voice that questions the justice system to be silenced, not forgetting that it is mainly those adversely affected who have the knowledge and even inclination to raise concerns.

Those who waive their anonymity as victims are often, it seems, those who are most vocal in trying to stifle debate, failing to realise that any unsafe convictions renders their own case potentially unsafe. Nothing is said by them on the topic of fair trials, though a secure conviction needs, by definition, to be a safe conviction secured by a fair trial, and the gagging is far-reaching.

Dr Andew McFarlane, who spoke up in defence of his convicted son, as he has the right to do, has been roundly condemned for responding to harassment that he received online, prosecuted for malicious communication, reported to the GMC for additional punishment, and further condemned for making a financial contribution to JIMS in their fundraising efforts to create a documentary on the topic of the need for fair trials. All this, yet the source of the harassment he himself has suffered remains uncommented and unacted upon. Where is his right to free speech, to counter claims that he believes to be untrue?

Rape and sexual assault in their historical definitions are dreadful crimes that deserve to be effectively punished, but those definitions have been altered out of all recognition in recent years. To assume that every woman who is subjected to such a crime, especially as currently defined, is scarred for life and unable to function in society if the topic of sexual crime is raised in her presence, unless it is to condemn all men and validate her victimhood, is a mistake and does the genuinely harmed and society at large no service. Definitions, however, are another conversation for another day.

Women DO lie about sexual crime, wrongful convictions (of rape, sexual assault and any other crime) DO happen and to pretend that not speaking about it is damaging to genuine victims and must be suppressed at all costs makes no judicial sense whatsoever. Neither does it help genuine victims, who deserve to recover from their trauma and develop resilience so that they can live in the world as fully functioning members of society without flinching at every word that victim’s rights groups deem unacceptable.

A growing body of data is confirming that not only are false accusations a national issue but that there is absolutely no official support network for those falsely accused (of any crime). Those falsely accused of murder, rape, assault, and any other crime you care to name are turfed out of police stations and jails without a by-your-leave, left to their own devices to reclaim their reputations and shattered lives alone, lucky if they have the support of their family. To pretend that this is a rare occurrence ignores the fact that the claim of rarity is based on the number of prosecutions for perverting the course of justice and ignores the number of times that the police recognise that no crime took place but take no action or the fact that pitifully few of the cases that are demonstrably false are officially reported or recorded.

How dare anyone, a genuine victim or anyone else, tell those who maintain their innocence, (a stance that is actually detrimental to their welfare), that they have no right to speak about their experience, to state that they are lying about their innocence, no matter what the conclusion of the police investigation or a court?

Where is their right to free speech, or to ‘trauma-informed’ treatment and consideration? Not that I am actually advocating for trauma-informed anything for anyone, because reinforcing the effects of trauma on a moment-by-moment basis is hardly a healthy thing to do, but offer to one – offer to all.

The fact is, we either have free speech for everyone or no one and right now, the hysterical fringes seem to have claimed a monopoly on it, removing it, in practice, for everyone.

No-one can pretend that feminist ideology and lobbying isn’t influencing the right of reply and therefore free speech for those accused of heinous crimes.

We have universities that tell us ‘we want our students to develop critical thinking skills’, (but clearly only on the topics we deem suitable), and ‘we want to create a safe environment for our students’ (apparently to the extent that so that no-one is upset by anything, ever), we have victim support groups that want people to talk about their trauma and not their recovery and legal advocates who want the judicial system to operate on a basis that meets every whim of complainers but does nothing to look to the welfare of the accused. This is stripping the population of the right to free speech.

Criminology students were given the opportunity to develop a deeper understanding of how THEIR justice system currently works, quietly, without fanfare and with facts. The response was condemnation, insults, graffiti, promises of being silenced and a complete lack of sensible debate outside the lecture hall.

Free speech is not compliant speech. ALL victims have the right to speak out without fear of harassment, not just rape victims, and defacing buildings should not be waved away as ‘the right to protest’ but should be roundly condemned. We all have the right to disagree and it’s long past time that both sides come together and have a sensible, common sense discussion about the legal system and how it’s failing everyone.

If you look at the dissenting voices on either side of the false allegations debate, it’s difficult not to see where the unhelpful frenzy, misinformation and intolerance of free speech lie; where the reasoned arguments lie. It’s difficult not to see who is interested in a just legal system and who is not and who demands preferential treatment for victims only of the type of which they approve, but I leave you to make your own mind up (and perhaps form an opinion what can be done about it, because something must be and soon), without another word from me.

By Felicity Stryjak

Felicity Stryjak is retired having worn many hats in her life so far, teacher and paralegal among them. She was born in Torquay in 1953 and has lived in a variety of interesting places both in the UK and abroad. She intends Scotland to be her final place of abode. More recently Felicity created Falsely Accused Database to challenge the myth that false allegations are 'vanishingly rare'.

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