Three somewhat unrelated news items in the last few days have got me thinking a little about freedom, and how one asserts it through individual or institutional action: a couple of days ago it was, apparently, Everybody Draw Mohammed Day, and a number of the rationalist and atheist blogs I frequent exhorted their readers to draw and post images of the Prophet as a protest against the Charlie Hebdo massacre in particular, and against religiously-inspired restrictions on our freedom in general; the University of Western Australia, following protests from its own staff, returned a four million dollar grant to establish a “consensus centre” under the climate-change controvertialist Bjørn Lomborg;1 and a baker in Northern Ireland was found to have discriminated against a gay couple by refusing to bake a cake with a pro-gay marriage slogan.
Let’s first clarify the concept of “freedom” a little, and distinguish between freedom-to and freedom-from. Freedom-to is the freedom to do something without legal or cultural restriction, whereas freedom-from is the freedom to not have something done to you. Freedom-from and freedom-to can interact: for instance, in the general liberal understanding, I have freedom to wave my fists as I please, but that freedom ends at the start of your nose, because you have freedom from being assaulted.
We can also sometimes paraphrase one type as another, for instance, the freedom to draw the Prophet being exercised in Everybody Draw Mohammed Day could also be seen as asserting freedom from censorship by a religion of which one is not an adherent or freedom from religiously-motivated violence. It is not clear to me, however, that there is exact equivalence in these rephrasings; this is not a simple logistic operation.
The distinction and convertability between freedom-to and freedom-from is relevant because, in terms of individual action, it is easy to see how freedom-to can be promoted and exercised, whereas it is harder to see how freedom-from may be. If I feel that a freedom-to is being denied me, and wish to protest or counter this, I simply do (and encourage others to do) the thing prohibited, hoping that mass action will negate or neuter the restriction. It is harder to see how, in terms of individual action, I can do something that exercises a freedom-from right. When a freedom-from right has been violated, there may be institutional processes which can be used to rectify the situation, but individual action seems substantially harder: if the government of the UK, for instance, violate my right to freedom from intrusive surveillance, there is little I can do as an individual to stop them; I must pursue systemic solutions such as the European Court of Human Rights that they are so keen to remove themselves from the purview of.
As such, one way to handle freedom-from restrictions in the light of individual action is to recast them, as above, in terms of freedom-to. Thus, for instance, Rosa Parks protested the restriction on her freedom from being subject to systematic racism by asserting a freedom to sit where she bloody well liked on a bus. No-one thinks that having a nice seat is what what primarily motivated her: it was a deliberate anti-segregational act; but as institutionally challenging the segregational laws of the USA were beyond her individual capacities she found an individual freedom-to action to assert. In this case, the recasting of freedom-from as freedom-to seems wholly reasonable.
Thus far I’ve been talking about freedom as a kind of right and, without going into detailed analyses that are beyond me, and not particularly relevant to the broad brush of my argument, of the actual nature of a right, I think we can at least loosely distinguish between moral rights: those that a moral system, culture, or even simply an individual assert exist, and legal rights: those that are enshrined in law, giving a form of redress when the right has been violated. Rights are also often associated with responsibilities: the idea being that—setting aside certain specific universal or inalienable items—rights are due to a person conditionally upon certain behaviours. Again, to draw a terminological distinction, I would align responsibilities with moral rights; where the law enshrines as legal rights conditional upon certain behaviours it seems more accurate to describe these as obligations.
In the case of Everybody Draw Mohammed Day with the exception of those participating simply because they enjoy insulting others it is a freedom-from that concerns people taking part: in the light of the Charlie Hebdo massacre, we should all be concerned with finding ways to assert our freedom from religiously-motivated violence; this is particularly difficult as the system which attempts to restrict our freedom-from on this front—a particular strain of extremist Islam—is not a formal institution such as segregational laws in the USA: it is a cultural phenomena rather than a legal one, and it is seeking to control the behaviour of those outside of its cultural “jurisdiction,” so the problem of individual actions against freedom-from restrictions is compounded by the fact that there is no institutional action available. As such, finding freedom-to equivalencies to assert are important, and this seems to be the motivation behind Everybody Draw Mohammed Day.
However, I think it misfires, and badly. The majority of ordinary Muslims who do not support the actions of the extremists are likely to be equally offended by this. Putting aside the fact that, frankly, that it’s just not nice (whether one is entitled to or not) to deliberately set out to offend a large number of people, the pertinent question is: in order to counter a relatively small minority of extremists, is it wise to alienate precisely the constituency from which they garner their supporters? Most extremist Muslims, it seems safe to presume, are ordinary Muslims who have been radicalized. I fully support any action to assert freedom from the extremists, but to do so in a manner that is likely to increase radicalization within their potential supporters seems, in purely pragmatic terms, wholly counterproductive. The moral right to freedom of speech, I would argue, does come with responsibilities—not obligations, and ultimately I would defend the gathered prophetic portaiteurs in their enterprise—but I think they are neglecting their responsibility to, when exerting one’s freedom of speech, at least give thought to the consequences of doing so.
The Everybody Draw Mohammed Day issue is clearly an issue around moral rights, but the gay cake issue touches upon the nature of legal rights and consequently obligations rather than responsibilities. Once we have a right enshrined in law then individual action to correct a freedom-from violation becomes possible through legal action; however we should note that it is still an institutional solution, not a simple case of individual assertion. In the case of the baker I think the judgment was wrong and I think it derived from conflict of freedoms, rather than the erroneous recasting of Everybody Draw Mohammed Day. I say this despite being vigorously in favour of gay equality, and legislation to promote this. It is clear that the ruling of the judge oriented around a freedom-from: that the couple should have been entitled to freedom from discrimination based upon their sexuality. I don’t think it is coincidental that, having pursued an institutional rather than individual action, the couple had placed themselves in the domain where freedom-from restrictions are corrected, and that judges correspondingly tend to view matters in these terms. However, in doing so, the judge (in my view) overlooked the freedom-to of the business to refuse to enter into contract with anyone without necessarily having a reason, or without having a good one. A purchase is a business contract, and as such should be willingly and voluntarily entered into by both parties; to find otherwise seems to me to totally undermine the concept of private enterprise: the idea that I can oblige a private business to enter into contract with me seems ludicrous, yet it is the necessary corollary of this judgment. As I said, the law deals in obligations rather than responsibilities, and in this case the judge seems to have interpreted one person’s freedom-from in terms of another person’s obligation-to; and the restrictions on personal freedom that would be consequent should this principle be extrapolated out to all private or business dealings seems to me a far greater curtailment of freedom than the original offending (non-)action.
Let me make it clear that as far as I am concerned this freedom to refuse service for any or no reason is strictly limited to privately operating business providing private services: public institutions or private businesses running public services (whether or not I approve of that, but that’s a very different post) should not have this freedom to select their customers and, and such, I approve of the sacking of the registrar who refused to marry gay couples and would wholly support actions against, for instance, a private bus company that sought to reintroduce segregationist policies in the USA. But cake-baking does not seem to me a public concern, and though I may think that Ashers are a bunch of bigoted shites and would wholly support the couple’s freedom to publicly condemn them and encourage others to assert their freedom to shop elsewhere, in the balance of freedoms, I find myself having to support their freedom to serve who they please. The alternative is obligations-to upon private behaviour, which is one of the greatest anti-liberal positions possible.
Finally, I find myself wondering whether any reasonable concept of freedom and obligation is in any way being invoked by the right-wing, Murdoch-empire-led outcry against the University of Western Australia for having, belatedly, refused to work with Bjørn Lomborg. If you are not up to scratch on this furore: the management of the University of Western Australia accepted—with minimal consultation of its academic staff—a four million dollar grant from the Australian government (specifically pushed by the openly climate-change denialist Tony Abbott) to establish a policy research centre headed by Bjørn Lomborg. Following protests from UWA’s staff, the university decided to return the grant and not set up the centre, leading to vilification in the Australian, the Wall Street Journal, and other right-wing organs, claiming curtailment of academic freedom.
Academic freedom is a right which does come with responsibilities: to be as transparent as possible, both in terms of sources of funding that may cause conflicts of interest, and in providing honest representations of the data. Yet Lomborg’s current Copenhagen Consensus Centre is startlingly opaque about the sources of the many millions of dollars that it spends—how UWA authorities managed to square this with their own research guidelines which, as for all reputable universities, require published research to disclose sources of funding (5.6) and potential conflicts of interest (8.1–8.7) is a bit of a mystery to me. And as my brother’s painstaking analyses exemplify, Lomborg flies somewhat fast and loose—to put it mildly—with data.
Lomborg considers the decision not to proceed with the centre to be a form of censorship akin to “being mugged.” Yet as a figure with a worldwide reputation and with a syndicated newspaper column that, according to Lomborg himself, reaches 30 million readers across more than 30 newspapers in 19 languages, Lomborg is hardly struggling to make his views known. Lomborg would appear to wish to convert his freedom of speech—the freedom to have and state views on any topic—into a responsibility or even an obligation to publish them on the part of UWA, or presumably wherever he next seeks to locate his woebegone centre. Thus once again one person’s freedom is interpreted as another’s obligation; this time in a manner that is ludicrous in the extreme. Even were we to look at the more rarefied concept of “academic freedom” rather than the wider “freedom of speech,” if UWA have any obligations or responsibilities in this direction, they are to ensure that the individuals and institutions they partner with meet the basic obligations of academic honesty, which Lomborg manifestly fails to do. The UWA’s freedom—no, responsibility—to deny its imprimatur to anyone found to be falling short of academic standards seems to have been lost on the cavalcade of outraged right-wing commentators.
As the UK government progresses with its deeply problematic commitment to rewrite our association with or withdraw completely from the EHCR, it is becoming increasingly important to me that we find ways to assert our freedoms. Citizen action—individual assertions of freedom-to—seems to me to be the most viable route to achieve this, but freedom does not come without responsibilities. Ill-thought-out pro-freedom actions or the interpretation of your freedom as an obligation on the part of another both run the risk of having the entirely contrary effect to that desired.
1 If you do not know who Lomborg is then, although academic neutrality is of importance here, I am not bound by it, and so will happily exert my freedom to call Lomborg a dangerous fool or a charlatan (I care not which) who cherry-picks and distorts data to provide a veneer of academic credibility to the most perilous narrative of our times: that climate change is either not man-made, or that it is not a serious threat to the well-being of people—and, indeed all life. Lomborg is nowadays of the latter type—he does not deny anthropogenic climate change; he simply claims that it’s not a big deal, or that money spent to address it is inefficient and better spent elsewhere.
A Progressive Rake 
More thoughts to come, but I’ll post these first in case (a) I have misinterpreted your position; or (b) you come up with a killer riposte.
I understand the distinction you want to make between a legal obligation and a moral responsibility, although I don’t think the linguistic distinction you make is quite the right one: I have a legal responsibility to look after my son and, if Kant is to be believed, I have a moral obligation not to lie when the mad axe-murderer asks which room he is asleep in. But the underlying point that we can’t and shouldn’t legislate against some people being mean, nasty, narrow-minded little turds is fair.
But I am not convinced by where and how you want to draw the dividing line. If I can extrapolate from your examples, it seems to me that you want to defend a Lockean concept of freedom, where freedom is expressed as ‘life, liberty, and property’. In doing so, you are coming down on clear-cut legal criteria that discrimination legislation is appropriate (a) in the public realm; and (b) when definitive ‘harm’ has been done, whether physical (for instance breaking someone’s nose with Roget’s thesaurus), or financial. I want to defend a more Franklinite re-interpretation of this as ‘life, liberty, and the pursuit of happiness’. This mean accepting a more nebulous definition of harm and, hence, a larger grey area in the interpretation of the law and more space of judicial activism that I think you would allow, but I am happy with this.
Indeed, I will deliberately provoke you by suggesting that your approach leads to the reification of property as the primary thing that the state is there to defend.
For example, take the Larry Flynt case. Flynt’s Hustler magazine was sued by Jerry Falwell for libel over a parody that had him gang-banging a nun, or something equivalent. The case went all the way to the Supreme Court. If memory serves, the defence that Ed Norton used to convince the judges was that the story was so outrageous and blatantly false that Jerry Falwell could not have any pecuniary loss from it. Nobody would have actually believed it. It might have been deeply offensive, but it didn’t harm Falwell financially. I have no desire to spring to Falwell’s defence as a person, but it seems to me rather unsatisfactory that the deciding factor over whether a speech act is prohibited by law is whether it can be demonstrated to have caused financial harm. It protects the rich and powerful more than the poor and vulnerable.
In this case, we have two high-profile people slogging it out in public in a way that probably ended up bolstering both of their profile and support among their natural constituencies. But at the other extreme, what about cyber-bullying? Does your approach only legally protect those who reach the point of physical self-harm?
I think your distinction between private and public realms is an artificially binary one. It is a vague area. Let me take your gay-cake as a starting point and indulge in a sorites extrapolation, precisely to demonstrate that vagueness. In your interpretation, the gay-cake deniers are nasty mean bigots, but we shouldn’t punish them legally for that as their business was a private enterprise. By the same logic, a private London boarding house in the 1950s should feel no compunction to accept dogs, Jews, or Irish as guests. Should they then be able to put a sign outside stating as much? Following your logic, I guess we could draw the line there by interpreting the sign as a public act rather than private, but I’m not convinced that makes sense; I as the racist landlord could claim that I am simply advertising my conditions of business. And if the boarding houses in an entire street, or suburb, or city should do the same, again each individual hostel owner can be branded a nasty little racist, but they are acting within your proposed legal framework. And by this stage I think there is demonstrable harm being done to a whole group of people that I want to be able to legislate against. In disputing your sharp private/public distinction, I certainly accept I am creating space for activist judges, but I don’t have a problem with that necessarily. It seems to me that this is certainly a vague area (and that the penalties applied in this case reflect that), but I don’t think we solve the problem by drawing at artificial legal line because, it seems to me, that will end up privileging and protecting the powerful more than the vulnerable.
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More thoughts to come from me, too. But to start with:
The terminological distinction between responsibility and obligation will have to do for now. I’m not proposing a fully-fledged theory of justice, merely pondering a few things. I had written another clarificatory para, which I deleted for excess of words already: but I distinguished between “responsibility for (something)” and “responsibility to (do or not do something)”, the former is what you have for Nick, and is not in question here: I wanted simply to distinguish the moral impetus to do or not do a specific act and the legal impetus to the same. I’d argue that, whatever terms are used, a legal “responsibility to” ends up being an obligation: when the chips are down you are either guilty or not guilty in a criminal hearing, or a civil hearing finds for or against the plaintiff. The application of law ends up with a binary decision (or tertiary if we allow for the various forms of null findings in coroner’s courts, Scotland, etc.). It does not seem unreasonable to me, then, to see the legal “responsibility to” as “obligation”.
You are certainly right that my approach looks rather Lockean, even US-style libertarian, and I was wincing a bit as I wrote it. Other counterexamples would be: does my position say that people can freely discriminate in employment decisions? What about the issue of Catholic abortion agencies refusing to place children with gay couples?
So, let me say that I wasn’t proposing that this be the be-all and end-all of our concepts of how legal and moral rights and responsibilities interrelate. Lockean property-defence does not have to be the entirety of our approach to this, but where property/private enterprise is concerned it doesn’t seem a bad place to start, precisely because it sits well with the binary judgments that the law necessarily reduces to. There may well be situations where a Franklinite pursuit-of-happiness right overwhelms the Lockean property/private enterprise defence: I just do not think that this is so in this specific case. Particularly: as I said, the corollary of the judgment would seem to be that my Franklinite freedom-from entitles me to oblige another person not just to refrain from certain acts (such as abuse, violence, etc.), but also to imposes upon them certain acts that they must do. That seems to me the problem. I’m not saying that this must never happen, simply that it is an extremely illiberal thing to say to someone “you must do this,” and that the grounds for doing so in this case seem to me rather weak.
To contrast with the Catholic abortion agencies (which actually as far as I’m concerned anyway fall under my categories of private enterprises fulfilling public operations) or employment discrimination: in those cases, what is under consideration is not a simple pecuniary or business matter, a livelihood or life is at stake; as such I would not apply the Lockean standard to them. Regarding your example of the boarding house: I certainly DO think that there is a distinction between the policy and the sign, and that distinction precisely IS the public nature of the sign. Do you really think that no such policies exist, even now, whilst simply not overtly stating it? If so, and if the criteria is pursuit of happiness, it seems clear that a sign violates the pursuit of every member of the affected community (or every decent person) who sees it, whereas the simple refusal of business does not. I don’t see an equivalence. The question is: what level of violation of the pursuit-of-happiness agenda reaches the extremely high bar of obliging a private enterprise to form non-voluntary contracts? And my response remains: not baking a cake.
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It is a sorites issue, yes: but by endorsing the Franklinite perspective you have to accept that its very nebulousness means that we will have to accept that sorites judgments are going to have to be made. You seem to be wanting to have it both ways, to a certain extent: endorsing a necessarily vague ideal which, equally necessarily, will require individual cases to be decided on one side or another, and yet using the sorites “paradox” to argue me in absurdam.
If we are to have the pursuit of happiness (and I endorse this too), then, in the application of the law there is always going to have to be a decision as to whether the man is bald or not. That application may be mandated within the legislation (such as, for instance, the fact the according the the Criminal Justice Act 1994, nineteen people listening to amplified music in a field is not a rave, no matter how many Es they have popped, but 20 is) or left to the decision of courts: your “activist judges.” I am very chary of the latter. The former may result is apparently absurd legislation such as the CJA, but the latter comes with two substantial problems: firstly, the mission creep by which the judgment of the juridical arm becomes dependent upon the judgment of the enforcement arm, which in these days of swelling, unchecked police power frets me greatly; and secondly the fact that, at present, by placing these sorites judgments in the juridical arm, you are placing them in exactly the hands of the privileged elite that you accuse me of ending up defending the interests of. Politicians, at least in principle, answer to everyone, and can also overturn existing laws by a simple majority. Judges do not answer directly to the populace and I think you also miss the principle of case law in which, once a standard of judgment is in place, judges will not usually overturn it (in the absence of legislative changes) without exceptionally strong reason; thus were we suddenly to have a fully representative bench, it would still be bound be the conservatism of the predecessors. Ideologically it might seem preferable to leave these decisions to the judiciary: at present, with the country and the establishment constituted as it is, I fear it would have precisely the opposite effect to that which we both would wish to see.
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Good points all. I think the bottom line is I want to draw the distinction between public and private a little bit further out that you do. I will push my sorites in another direction to try to convince you. If it’s not OK for a business to put up a placard saying ‘We do not serve gays’ because it is now in the public sphere, is it ok for the same person to put a sign up in the window of their private home saying ‘I hate gays’? If your answer is yes then it seems to me that you are admitting a public dimension to private enterprise – the same person can put the sign in their private window but not in their public shop. If no, then you start trampling on the free speech principle that you set out to defend.
My view would be that even a ‘private’ enterprise is engaged in the public realm. I would say that there is a prior contract with society that is embodied (however imperfectly) in anti-discrimination legislation: if you want to open a business in the UK, you are entering a contract with society not to discriminate on grounds of race, gender, sexuality, etc. Certainly, it’s not a black a white issue and I this one was a minor infraction, and to my mind was reflected in the size of the damages (which were agreed by both parties in advance). But I think the judge made the right call here.
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