COMPELLED SPEECH – LIBERALISM UNMAKSED

COMPELLED SPEECH – LIBERALISM UNMAKSED

For the majority of legal commentators, the Ashers’ Bakery judgmentwas a no-brainer; the bakers objected to the message and not the messenger and for this reason, had the lawful entitlement to refuse to provide their services.  However, writing for the Constitutional Law Blog, two academics from Keele University, objected to the judgment; here – part 1 & here – part 2[1].

The thrust of their objection seems to be that liberalism should prioritise the notion of equality over freedom.  They argue that the statements ‘homosexuality is a sin’ and ‘support gay marriage’, should not be treated as equivalent.  They contend that:

The message ‘Homosexuality is a sin’, however, does not just contradict deeply held beliefs of some people. It conveys discriminatory values and it results from such values. It perceives gay people as less worthy, as human beings or rights-holders, simply because of who they are. Those who object to assisting others in conveying the message ‘homosexuality is a sin’ – do not rely on discriminatory or repugnant values while doing so. They in fact rely on liberal values. Therefore, and within the context of providing service to general public, holding these values does form a valid reason for prioritising the right not to manifest a message to which one objects over the duty to provide a service to the general public.” [2]

They further contend, that opposing gay marriage is distinct from say, opposing abortion, because the former pertains to the identify of another.[3]  In part 2, they go on to conclude that the Ashers’ judgment would allow a baker who objected to miscegenation, to lawfully refuse to bake a cake with a message that supported inter-racial marriage.[4]

Is this conclusion correct?  In theory it might be but in practice, I am fairly sure it would prove to be erroneous.  If the baker in the hypothetical scenario was in Northern Ireland, they would have to rely on their ECHR rights as did the bakers in Ashers[5].  In such circumstances, I would expect the Court to invoke article 17 to deprive the baker who opposed miscegenation from any protection under the ECHR:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”.

What would happen in other parts of the UK?  The Equality Act 2010 only protects philosophical or religious belief as a protected characteristic; this may include political ideologies but not specific political opinions[6].  I think that if the above hypothetical scenario occurred and the customer brought an action, the Court would find that the customer had a philosophical belief in ‘equality’ and had been directly discriminated against based on such belief.  The baker’s belief that miscegenation was undesirable, would be deemed unworthy of respect in a democratic society.[7]

If the ‘racist’ baker is to be potentially subject to ‘compelled speech’, in the course of running their private business, what can be said about the ideology that would justify such compelled speech?

The academics are correct in arguing that liberalism, or at least the kind of liberalism that is part of the current hegemony in Western states, is more concerned with notions of equality than freedom.  The Ashers’ judgment perhaps constitutes a slight aberration to the primacy of equality over freedom.  This primacy of equality tends to be reflected in modern jurisprudence.  It was still reflected in the Ashers’ judgment, where Lady Hale’s cites article 1 of the Universal Declaration of Human Rights.[8]  This proclaims that all human beings are born free and equal, in dignity and in rights.

It has been persuasively argued that the concept of dignity has replaced the concept of honour in both Western morality and Western jurisprudence, see here[9] .  Article 1 above is supposed to be a normative statement, even though it is expressed ostensibly as a statement of fact.  Indeed, not only is an empirical justification not required, but any empirical arguments that are perceived to threaten the concept of equal dignity, are ruthlessly supressed.  Thus, the belief in equal dignity (i.e. being worthy of respect) for all, takes on a quasi-religious character, with perceived heretics being persecuted, rather than merely having their assertions challenged.

This, rather than any concern over the liberty of others, explains why non-violent dissidents can face loss of employment, aggressive and contrived economic boycotts, censure, exclusion from the internet and social media platforms, fines and imprisonment.  Such outcomes cannot be justified on any objective application of Mill’s liberty principle.  Seen in this context, dissidents being subject to compelled speech, is fairly predictable and congruent.

A similar reason for the treatment of Western dissidents, is that the liberalist state and its proxies do not believe that dissidents should exist, but for pathology and wickedness.  To elaborate; liberalist states lack a strong sense of what Carl Schmitt (see below) described as, a concept of the political.  What is meant by this, is that liberalist states are seen as associations created by individuals to pursue their interests.  Liberalists deny the fact that liberalist states reflect and were created forcibly, by people with a common language, racial characteristics, heritage, religion and a clear sense of who could and could not belong to their community.  They believe conflict can be avoided via a liberal state that gives its citizens the possibility of improving themselves via market competition and that membership of such a state is potentially open to all of humanity; individuals are viewed as fungible.[10]

Therefore, the Western dissident is not viewed merely as an enemy of the state who can potentially be bargained with, but as an enemy of humanity.  The liberalist state and its proxies will not typically use violence against such enemies, as opposed to waging economic warfare.  As Carl Schmitt observed:

The adversary is thus no longer called an enemy but a disturber of peace and is thereby designated to be an outlaw of humanity.  A war waged to protect or expand economic power must, with the aid of propaganda, turn into a crusade and into the last war of humanity”. [11]

Schmitt was describing inter-state conflict and economic imperialism, but his theory applies by analogy to the behaviour of Western states and non-state actors, towards those who appear to pose a threat to ‘equality’.  In Schmitt’s theory, the wielding of economic power is described as peaceful, yet the aim is typically warlike, namely dominion over the enemy and the result of economic warfare, such as blockades and sanctions, can be death.[12]

Similarly, when a Western dissident is subject to economic warfare, their enemies will make disingenuous appeals to free market principles; they will say that they are merely operating within a free market by persuading free market actors to disengage with the dissident.  For example, they will maintain that social media platforms are run by private companies that have an unfettered right to delete a user’s account, but if that same user found another effective platform, they would set their sights on removing the new platform.  If they destroy a dissident’s business by pressuring customers to withdraw their business, they will go after any new business he establishes.  They are unmasked by their behaviour; their aim is ideological dominion through fear, pressure and the stifling of ideas they find threatening.

As to how far the comparison can be taken between liberalist states causing starvation through economic warfare at the time of Schmitt’s writing and contemporary actions against Western dissidents, consider the above paragraph in conjunction with the EU Council Framework Decision 2008/913/JHA, which provides for economic penalties against those convicted of inciting ‘hatred’ against ‘a minority group’; such penalties include removing entitlement to state benefits and disqualification from commercial activities.

Yet the dissident will not be able to sue for peace or secure a compromise because the liberalist state and its proxies do not recognise them merely as enemies with competing interests; a nationalist opposed to rootless cosmopolitanism does so, according to the liberalist state and its proxies, as an obscurantist with pathological impulses; such people should not exist in the mind of the liberalist.  This is similar to the view taken by some European settlers of the North American Amerinds; such people could not be bargained with as they were deemed unworthy of existence, due to their cannibalism.[13]

For the reasons set out above, only through ideological revolution will the Western dissident be able to obtain freedom.

 

 

 

[1] Yossi Nehushtan and Stella Coyle ‘The Supreme Court’s Betrayal of Liberalism & Equality’  6.11.18

[2] This is a facile and sanctimonious analysis, which imputes statements that are not made; it is homosexual activity that is viewed as less worthy than heterosexual activity.  There is a debate about the extent to which homosexuality is caused by environmental or genetic factors.  Irrespective of this, the proclivity is plainly involuntary, but any sexual activity motivated by the proclivity is unquestionably voluntary.  Refusing to give homosexual relationships equal status with heterosexual ones, arguably makes life more difficult and/or less pleasant, for those with homosexual proclivities.  One can debate whether this is justified, but this is not the same as suggesting that homosexuals are inferior per se.  Furthermore, the extent to which the aforementioned proclivities form part of a person’s identity, is a highly subjective and perhaps metaphysical issue, which calls for a nuanced analysis.

[3] Ibid

[4] They also give the example of a baker refusing to bake a cake with a message supporting ‘Black History Month’ and pre-suppose that they only explanation for this would be racism, i.e. the belief that one race is inherently superior to another.

[5] see paragraphs 37-48 for why they would have to rely on the same and then 49-58 for the application of such rights – per Lady Hale

[6] Section 10

[7] Grainger plc v Nicholson [2010] IRLR 4

[8] Supra, para 35

[9] P Berger – The obsolescence of the concept of honour; Changing Perspectives in Moral Philosophy, Notre 87Dame (Indiana), Notre Dame University Press, 1983, p. 172-81 (286 p.)

[10] See R Duchense ‘Carl Schmitt Is Right: Liberal Nations Have Open Borders Because They Have No Concept of The Political’ TOQ 2017 – p37

[11] C Schmitt ‘The Concept of the Political’ 1932 – University of Chicago Press 2007 ed, p80

[12] Ibid p78

[13] Ibid note 23