The right to protest is not absolute
Freedom to protest should be constrained by freedom from violence
Over the summer, I visited a small, idyllic community. I remember thinking at the time that it was exactly the sort of place any person would want to start a family. There were children playing in the green spaces that surrounded the central school, it was quiet enough that you could hear the birds singing, and the residents — many of whom were young couples, who had moved out from the city in search of a different pace of life — had a strong sense of belonging.
The name of that community was Kfar Aza, a kibbutz in the south of Israel. On October 7th, a matter of months after my visit, Hamas terrorists breached the Israeli security perimeter around Gaza. A number entered Kfar Aza, murdering in excess of a hundred people. Women, children and the elderly were executed; some were burned, and some were beheaded. Over 1500 Israelis have now died since that bloody weekend, in the worst mass killing of Jews since the holocaust. Hostages were seized, some of whom were UK nationals. I’m not sure everyone I met over the summer in Kfar Aza is now alive.
Israel’s response has been forceful. Some 7,000 people have now been killed in Gaza as a result of military action, many of them civilians. In seeking to root out Hamas and destroy the infrastructure with which it has waged a campaign of terrorism against the Israeli people, Israel has shelled Gaza relentlessly in the weeks since October 7th. It is attempting to relocate hundreds of thousands of Palestinians from the north of the strip to the south, as Israeli troops and tanks have begun operations inside the territory. A humanitarian situation of severe proportions is developing.
In the UK, the consistency (for now) in the stances of both the Government and the Opposition front bench on the crisis masks deep and profound divisions in British society about what is going on in the Middle East, and how we ought to respond. In recent weeks, tens of thousands of people have taken to the streets in Britain to protest against the state of Israel.
Most thoughtful liberals have always recognised that context matters
Many demonstrators are well-intentioned and have peacefully attended the pro-Palestine protests. Many have not. They have glorified the acts of Hamas, celebrated pogroms, spread hate and called for further violence against Jews worldwide. Jihad has been called for. “Khybar, khybar oh yahud” is a chant that warns Jewish people that “the army of Mohammed” will return. “From the river to the sea, Palestine will be free” is a slogan expressing a desire for Israel to be wiped from the map. Both have been heard across London. The Evening Standard has reported on graffiti in the City of London depicting Hitler making a nazi salute, with the word “Jews” scrawled across it. Red paint has been thrown over two schools in North London.
As the police have floundered in trying to establish an appropriate response to these events, a more profound question has posed itself. Does liberalism, and the maintenance of a liberal society, require that we permit even these forms of speech and protest? Some free-speech absolutists think it does. One version of their argument goes that genuine freedom of expression and assembly requires extending that freedom to those with whom we fervently disagree. The more utilitarian iteration of this case says that it is important to let even wicked views be aired so they can be challenged openly in the court of public opinion and not allowed to fester. Both these arguments have validity. Indeed, as a former President of the world’s oldest free speech society, I have advanced them both on different occasions.
Rights to speech and protest are not absolute, however. Context matters, and this is a point that most thoughtful liberals have always recognised. In his On Liberty, one of the most influential systematic treatises on liberalism to have ever been written, John Stuart Mill makes precisely this argument. “Even opinions lose their immunity”, he wrote:
… when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited crowd assembled before the house of a corn-dealer, or when handed about amongst the same crowd in the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited.
The question before us at the moment is not about how we should deal with legitimate free speech or protest. It is about acts that do not fit into this category. All civilised societies must attempt to draw lines and boundaries, however anxious we might be about the difficulties in maintaining them. A liberal society must draw a maximally wide set boundaries for the free expression of thought and opinion. It must also, for its very preservation, be capable of discerning between thought and expression that is good for such a society, and the celebration and deliberate incitement of violence that is degenerative of it. In practice, there is a vast chasm between critiquing the acts of the Israeli government, and the celebration and incitement of violence against Jews.
This is also not about broader or more exceptional restrictions on the right to protest. It is about the effective prosecution of the existing laws, about reversing a culture in which we worry that trying to maintain a distinction between hate speech and free speech will only compromise the latter. There is nothing more laudable than the person who stands up for the right of another to say things with which he or she profoundly disagrees. It is not laudable, however, to be unwilling to intervene when hateful individuals exploit the ethos of a free society to say things that may result in material harm to others. It is contemptible.
Our leniency towards some protestors is a failure of liberalism
The difficult dimension to these arguments for any free speech advocate is the association of speech with harm. That is exactly the case made by those who reject free speech — that ideas with which we disagree are “violent”. It is fallacious, however, to suggest that this line of argument applies to the situation we currently face. The truth is this: Jewish people in this country have stopped sending their children to schools, they have stopped wearing the kippah in public, and they have avoided going outside. Jewish organisers have even been advised to not hold their own demonstrations in the North of London because of security concerns. It is not because they are overreacting to the peaceful protests of those opposed to the actions of the current Israeli government. It is because of people whose celebration of the deaths of Jewish civilians, and whose aggression towards Jews in general, puts them at serious risk.
Some liberals might believe that the values and freedoms of the society which we inhabit are so innately true and correct, that any reasonable person would wish to uphold them. A liberal, democratic society is not self-sustaining, however. Its perimeters must be guarded vigilantly against the aggressive actions of those who despise our way of life. Our leniency towards some protestors is not an example of the strength and success of liberalism. It represents an abject failure of it. If left unchecked, it will undermine the ethical foundations upon which our country is built. We are a tolerant society, but the fact that Jewish people in the UK have been impeded in going about their everyday lives flagrant antisemitism is utterly intolerable.
Much of the foregoing has been about the importance of context when it comes to discussion of rights. Nonetheless, attention to context should not imply a paralysing moral relativism which says that we can never say that something is right or wrong. When things are complicated and complex and difficult to navigate, we need to hold on to things of clarity and certainty to guide us through.
On one thing we should be absolutely clear. It is wrong to permit protest to such an extent that in the immediate aftermath of a terrorist atrocity, individuals are able to celebrate the death of Jews and call for the further killing of Jewish people. It would be wrong if individuals were celebrating the death of Muslims or Christians, or any other creed or faith. This question of the right to protest is a matter of compromise and balance. At the moment, we are getting the balance wrong.
Enjoying The Critic online? It's even better in print
Try five issues of Britain’s newest magazine for £10Subscribe