‘Free speech is not a human right, it is a rule’

The controversy over The Da Vinci Code has re-ignited the ever-green debate on freedom of expression. With the government giving the go-ahead for its screening, it might seem as if freedom has won a major victory. But, in this essay, excerpted from the March issue of Index on Censorship, TOM STOPPARD argues that free speech is not an inalienable human right.

***

The idea that being human and having rights are equivalent—that rights are inherent—is unintelligible in a Darwinian world. It is easily overlooked that when Thomas Jefferson asserted that life, liberty and the pursuit of happiness were inalienable human rights, he did so on the ground that they had been endowed by God, our creator. 

That is how Jefferson deemed “these truths to be self-evident”. Yet, we do not find that insistence on human rights is the preserve of believers. Still less do we find the right of free expression being derived from God’s endowment.  Is the right of free expression self-evident? 

That I have the right to express myself freely at all times in all circumstances entails the idea that free speech is a “basic human right” possessed by each individual, and, as such, trumps the interests of the society or group, including my neighbour.  

But there is something odd about this.

The trumper is, after all, a member of the group. The interest of the group is the only game in town. That’s why the group is a group. The trumper is trying to trump himself. He has produced from his sleeve a card that was never in the pack and which he insists wins the trick. 

So it might, if we believe the card was divinely bestowed, that there is a “superior” game going on. If, however, we don’t believe that (and even those who believe in our divinity do not generally believe that God said, “Let there be free speech”), then it follows that “rights” are a psycho-social phenomenon, and there are no rights more human than others; no trumps. 

This looks bad for the principle of free speech. It seems to have no foundation. It is not impossible to imagine a group—a society—deciding collectively that censorship is desirable.

On what ground can we stand and declare the decision to be deplorable?  We may say that it’s deplorable because, for example, it would lead to that society becoming moribund, or for other pragmatic reasons. But it’s had to see how we can say that the members of the group are being denied their rights. 

A “human right” is, by definition, timeless. It cannot adhere to some societies and not others, at some times and not at other times. But the whole parcel of liberties into which free expression fits has a history…  

The concept of pluralism is a thousand years more modern than St. Augustine. To say, therefore, that the right of free speech was always a human right which in unenlightened societies was suspended from the year dot until our enlightened times is surely beyond even our capacity of condescension. 

Freedom of speech as a standalone “right” is a ghost, the flip side of inherent human rights being unintelligible: that is, you have no inherent right to limit my freedom of speech, therefore I have the right of freedom of speech… 

Freedom of speech, far from being an absolute, a given, seems to have less to do with rights than with rules. But that’s the good news. Now we can avoid the clash of absolutes, the endless, enervating, futile confrontation of irresistible forces and immovable objects.  

How did the concept of free speech as an inherent human right get into such a mess? 

It did so because we persist in the notion of a “right” as something to be claimed rather than accorded. While claim and counter-claim are presented as absolutes, this is a debate that not only will have no resolution but cannot have a resolution. 

The “human right” of free speech is a non-starter. It is not an absolute to be claimed for any and every position. It will prevail when we accord it. The rules are ours to make, and modify for different situations. The rules will be as good as we are, or as bad. 

***

www.indexonline.org