Some reflections on freedom of speech

Where I muse that the fetishization of feelings over facts explains the paper thin commitment of many to freedom of speech.

Checking my emails on Tuesday 18^th June I found (yet another) from my regulator to say that a complaint against me had been dismissed. This is a regular occurrence, complaints of my racism, anti semitism, transphobia and homophobia have been landing with reassuring predictability in my inbox for the last six years. Most are comical in their poorly constructed outrage. I reject them all.

This one however was a little different as it came from the organisation UK Lawyers for Israel which has a very illustrious list of patrons indeed - Lord Carlile CBE KC, Lady Cosgrove CBE KC, Baroness Deech DBE KC, Lord Dyson PC, Sir Bernard Eder, Lord Grabiner KC, Stephen Hockman KC, Lord Howard CH PC KC, Sir Ivan Lawrence KC, Lord Pannick KC, and Professor Richard Susskind OBE.

It set out an astonishing litany of complaints, involving very serious breaches of the criminal law, including the Terrorism Act. I set out the complaint below; judge for yourself. I do not accept anything I said is in breach of the criminal law and I will defend my self robustly in any proceedings. I note with interest the dates - they go back as far as 2019, mistakenly identifying that tweet as 2023. These tweets have already been hawked about the police and my regulator, to no avail. The police have already conceded they acted unlawfully in recording them as a Non Crime Hate Incident. But clearly someone kept all the screenshots and has bided their time.

My regulator, which has been usually sensible since losing to Jon Holbrook on his appeal against sanction for his spicy tweeting, dismissed the complaint and call for me to be ‘investigated’, pointing out that I was not posting in the course of my work as a barrister and the exercise of my political speech earned the highest form of protection.

I posted the complaint on X, along with my outrage. I contacted UK Lawyers for Israel to make a Data Subject Access Request. I am particularly keen to know exactly to which police force they reported me - because surely such serious allegations of criminal misconduct wouldn’t just be cynically used to bolster  a vexatious complaint? If they had reported me to the police, I need to know which force so I can investigate if a Non Crime Hate Incident has been recorded against me and take further action.

If they haven’t reported me to the police then I am entitled to raise serious concerns about an outfit which will rely on my alleged criminality to gussy up a complaint, and yet fails to make it to the proper agency. I would also be very interested to know who provided them with screenshots from five years ago, but suspect I already do.

The response from quite a few people on social media to my post was interesting. Some people who I had known for years, whose houses I had visited, and who never gave me any indication they found me a repulsive bigot, publicly declared they would cut all ties with me for my repellent views. Others declared themselves variously ‘sad’, ‘stunned’ and ‘speechless’ and told me I was instantly ‘unfollowed’.  Not a single one of the sad or stunned ones shared any of my concerns that spurious allegations had been made by a group of lawyers that I was in breach of the Terrorism Act.

I went to Auschwitz and Birkenau at the end of May 2024 because I wanted to bear witness. I bought ‘This Way to the Gas Chambers Ladies and Gentleman’ by Tadeusz Borowski and am reading it now. I thought about conversations with my father – like many men of his generation alarmingly obsessed with the war and Nazis – where I argued the Nazis would have seen me, a disabled person as ‘untermensch’, him responding that no they were after racial purity. I think I was right. I took a picture of a grim pile of artificial limbs at Auschwitz and wondered about their owners and man’s inhumanity to man.

After Auschwitz I went to Frankfurt where a Pro Palestine march streamed past my café with much shouting and banging of drums. The wheel is always turning. I have no solutions for the current conflict, no opinions other than to say I am very sad to note I am becoming desensitised to videos that flood my Instagram timeline of trembling Palestinian toddlers, covered in dust, who will never see their mothers again.

If it is anti Semitic to say that I think the military response of Israel in Gaza is disproportionate then so be it. This insult now has about as much impact on me as being called a ‘transphobe’. I think it is a shame to give up these words so lightly. What words will you have left for those who desecrate Jewish cemeteries or gun down people in synagogues? Or do you genuinely think that I am under that same umbrella? Walking along that same path?

I wonder what my accusers make of my public comments after 7^th October 2023 when I reviled the barbarism of Hamas, and was insulted on line for my pains? Of course they will not care. This is not about facts, it is never about facts – it is about feelings and the narrative you want to create that will amplify and protect those feelings.

I think that making emotion a fetish explains precisely why so many of us have only a paper thin commitment to freedom of speech. If you are unsure of the importance of and the parameters of freedom of speech, then the first instance judgment in Miller from 2019 offers a good primer. In essence, freedom of speech is given particular importance as a fundamental human right. If you can’t speak about something then of course you can’t protect it, or complain about it. Political speech has the highest possible protection and has to include things that others may find offensive or even shocking. Because otherwise, who is being the gatekeeper? If individual pure offence was the criterion for criminality in speech, then every single sex realist in the UK would now be banged up – and not that long ago, that was a real possibility, had not Harry Miller and Maya Forstater stood up, fought back, and gone to court.

What I think has gone wrong is that people have lost all sight of context and the necessary limits on their feelings. This is seen most clearly in the ‘gender wars’ but is becoming all pervasive. Instead of an argument, instead of facts, we now rely on our viscera to tell us what is right or wrong. Any challenge to our ‘feelings’ is then magnified into a deadly attack. We lash out or we expect others to modify what they think, say and do - or even say nothing at all - to make us ‘feel’ better.

I care about what some people think about what I say. In order of importance, those I love, the police, my regulator, people I work with in any capacity and people who invite me to their houses or on a social outing. Of course it would be entirely unreasonable and not an exercise of ‘freedom of speech’ to demand that work colleagues have to listen to my views on geo politics or for me to continue to discuss something in your own home when you have asked me to stop as it upsets you. You are perfectly entitled to kick me out.

But if you do not fall within any of the categories listed above, if you come to me bearing your outrage or your ‘sadness’ on a plate and expecting me to tuck in, think again. If all you have to offer is your ‘feelings’ and you expect that to have any impact on how I choose to exercise my fundamental rights to think and speak as I wish within the law, then you have revealed yourself as not only the enemy but also as a fool.

Some were a little bruised by my robust response to them on social media. I would ask them to consider my position a little more carefully. For six years now this has been my life. When I was suspended from Twitter in 2021, it was widely and falsely reported that I had been suspended for Holocaust denial. If they couldn’t get me as a ‘transphobe’ then ‘anti Semite’ had the best next currency. My time and money is frequently wasted in dealing with malicious complaints. I could have been spending that time with my daughter or my dogs. You have taken my time away from me. If I were a slave to my feelings, I might say I hate you for it. But I am not. I will turn that energy not into some emotion but into action. I will fight you.

And if Lawyers for Israel are willing to reflect, I suggest it is on this. If I am the vicious anti semite you claim me to be, what do you think will be achieved by forcing me out of my job or into prison? What do you think happens to angry and frightened people who have nothing left to lose? The cure for bad speech is more speech. Not this kind of cynical and dishonest attempt to silence those who give you a bad feeling. If speech makes direct threats of violence, targets individuals for harassment or defames them, then of course it isn’t protected. But if what you are doing is wielding such an enormous and threatening sledgehammer for the nut of an offensive or clumsy tweet - ask yourself what Side of History that puts you on.

The biggest sadness of the last six years for me, in the context of the ‘gender wars’ has been the growing realisation that many of those institutions and individuals I once respected, are either cowards or raging authoritarians, delighted that their masks can now slip and for whom the rule of law means nothing. Certainly nothing when set against your ‘feelings’. You scared me once. Not any more. Now, you just make me angry.

Complaint by UK Lawyers for Israel