Free Speech, Wilders and Fire Alarms

Judge Oliver Wendell Holmes’s overrated example of the impermissible was falsely to shout ‘fire’ in a crowded theatre. What he was referring to was the likelihood that the people in the theatre would react in a way that would prove injurious. Note that there is nothing intrinsically subversive about the language of such a false warning. Its impact would depend on the audience’s inclination to panic and a belief that it was a genuine fire alarm and not part of the drama taking place on stage. Even then, it is perfectly possible to envisage circumstances in which, in the absence of any corroboration that the fire exists,the warning would be ignored. It happens all the time in hotels and offices when an errant alarm bell rings. Mostly our response is to stay put and carry on with what we were doing until and unless we hear otherwise. In other words, even when confronted with a warning, we use our own judgement about whether the warning is valid. And if the alarm proves false and no harm is done, we don’t ask for the janitor to be jailed.
In the case of Wilders, he was being invited to shout “fire” in the house of lords to an invited audience. Any assumption about the damning nature of his film is an assumption about the reaction of those who see it; namely that they would be incited to feelings of hatred that they did not already entertain. Such an assumption is likely to be made only by those who consider themselves exempt from the contamination they fear in others. It’s the same old prejudice once used to justify the theatre censorship role of the Lord Chamberlain’s office, and that still sustains the Obscene Publications Act.
Banning acts of expression before they have been made or can be shown to have caused harm seems to me a dangerous path to tread. It is the path traveled by authorities that, no matter how benign their intentions, believe they know what’s good for us better than we do.
Wilders’ film has been widely seen already. Many have undoubtedly found it offensive. I thought it simply nonsensical: unpersuasive, poorly argued, misleading, crass, technically inept, and in summary worthless. Has it incited me to violence or to break the law? No chance. Has it had such an effect on anyone? There appears to be no evidence that it has.
The most offensive language imaginable can have no impact if it merely evokes ridicule or indifference, or indignation, or revulsion. We may feel, rightly, that children should be shielded from it until they are old enough to form an opinion on its validity. But unless speech can be shown to have incited violence or mischief, there is no good case for banning it. Unless, that is, we are content to be treated forever as children - too immature and credulous to make informed judgements of our own - or even maybe to vote.

Originally written for Open Democracy