Harry Miller, owner of a stevedoring firm and ex-copper, is famous in Britain because plod and a coalition of civil servants tried to chill his (trans) speech.
In response, he went to law.
The Speech Policeman
At first instance, the court ruled that a lawful policy (the College of Policing’s “Hate Crime Operational Guidance,” or HCOG) had been unlawfully applied when police visited Miller at his place of work after a complaint about comments he had made on Twitter. The fact that the police recorded an allegation against Miller was not in itself unlawful: rather, the illegality stemmed from actions of Humberside Police in addition to the recording of a “non-crime hate incident.” The court took an especially dim view of the unsolicited visit.
In March 2020, I warned an appeal in Miller v College of Policing was forthcoming, and Miller’s appeal—against the lawfulness of the policy qua policy—was heard last year. On December 20th the Court of Appeal handed him victory: HCOG did interfere with his freedom of speech.
The College of Policing has been sent away, tail between its legs, to do some civil society homework, homework that doesn’t just involve ending home and workplace visits where people are threatened with criminal sanctions over mean tweets. “It is not, as the Court of Appeal noted, for the judges to redraft the guidance,” barrister Sarah Phillimore notes. Instead, the College of Policing must “take on board the criticisms that have been loudly voiced since 2019.”
I raise the litigation because Miller’s case provides the framing device for Andrew Doyle’s Free Speech and Why it Matters, which has its US release early next month despite being out in Britain for most of a year. This means—for Americans unfamiliar with legal matters in another jurisdiction—Doyle’s book interrupts Miller’s story in medias res.
Recall, for a moment, just what Miller v College of Policing involved.
After pitching up at his place of work, the police officer told Miller that while what he tweeted (an off-colour limerick about trans people) was not criminal, the police “need to check your thinking.”
“You have to understand,” Humberside Police Constable Mansoor Gul (a “Community Cohesion Officer”) continued, “sometimes in the womb, a female brain gets confused and pushes out the wrong body parts, and that is what transgender is.”
Miller was flummoxed. “You’ve got to be kidding me. Wrong body parts? You have to know that is absolute bullshit. Is this really the official police line?”
“Yes,” came the reply. “I have been on a course.”
One wonders what happened to the right body parts. Did they remain in utero? Has this theory about a confused brain pushing out the wrong body parts been peer reviewed? Was PC Gul suggesting only female brains get confused and push out the wrong body parts? “I’ve been on a course” can be used to back up any claim, no matter how bonkers. “Ants are not real. They are little, tiny robots.” “Really?” “Yes. I have been on a course.”
The course, it would appear, helped Humberside Police insert a “Non-Crime-Hate-Incident” on Miller’s permanent record.
Funnyman in Serious Mien
Doyle is best known as a comedian, first as a conventional stand-up and, more recently, as Titania McGrath’s creator. In comedic mien, he has a rare gift: he can be funny-sad. I once watched him perform an entire routine on how—as the only leftie who voted Leave among a group of lefties who voted Remain—he’d managed to lose all his friends.
However, in Free Speech and Why it Matters—apart from a certain lightness of linguistic touch—Doyle dispenses with humour. The temptation to reel off a series of gags at the expense of those who would silence their opponents over hurty words must have been immense, but I suspect he figures that’s Titania’s job, and there’s no Titania in this book. She doesn’t even get a footnote. This has provoked disappointment in some quarters. Many people, having come to love a funny clown, resent it when he removes his suit and makeup and asks to talk seriously with us.
Doyle’s brief book (a mere 134 pages) instead serves in part as a reminder that its author has a doctorate in Renaissance poetry from Oxford and once tutored literature there. It is calm, patient, moderate: not written for people who already agree. This is an academic (in the double sense of true and faithful) who wants you to look again at a writer you may have dismissed, or to think for the first time about an argument you haven’t heard before. Each chapter—there are 18 all told—is a short essay on a particular issue of salience in the contemporary debate over freedom of speech.
There’s a chapter setting out how “hate speech” cannot be meaningfully defined, for example, and another on the extent to which it relies on subjective interpretations and personal perceptions. Another pair of valuable pieces demolish a claim that undergirds nearly all forms of postmodernism, to wit, that language creates reality rather than describes it, therefore necessitating tight control over the words people use lest those words create hate and harm.
It’s always been difficult to persuade someone to do anything in response to media consumption—whether book or article, film or game. Doyle recapitulates the evidence base here with admirable clarity. We’ve learnt this thanks to years of careful research on longstanding claims about the extent to which pornography facilitates or encourages rape, or if “first person” games produce school shooters. If anything, consuming pornography and playing violent video games are correlated with reduced rates of violent crime. It turns out that your words are a lot less powerful than you think they are, and other people have their own minds. If they want, they can tune you out.
Even if you’re unfamiliar with his UK case studies (like Miller, for example), Doyle’s Britishness is of benefit for American readers when he discusses the individual’s relationship with the government. Very simply, he does not make a distinction between censorship at the state’s behest and censorship by private actors, as is common in US debates. In this, he is drawing on John Stuart Mill, who was as much if not more concerned with “the tyranny of prevailing opinion and feeling.”
Classical liberalism often maintains a hard, bright line between state coercion and private coercion. In the US, the First Amendment—marvellous as it is—constrains only government power. Doyle notes that private sector and employer coercion (where it’s often called “cancel culture”) is now less like a reasonable response to an individual unable to, say, do his job and more like brute, impersonal government coercion—of a sort liberal democracies historically legislated to restrain. Meanwhile, the internet never forgets: there’s only one, and we’re all trapped in it for the rest of our lives.
Will They Read It?
As is often the case with Doyle’s work, there’s an underlying sadness to Free Speech and Why it Matters. “When I was a child,” he points out, “it was the right-leaning tabloids that would commonly call for censorship of television, film and the arts, whereas now this is predominantly a feature of those who identify as being on the left.”
That free speech has become “a right-wing concern” upsets him—he feels abandoned by his own side. I think it’s fair to say his book is an attempt to speak to one-time political compatriots, progressives who’ve dropped him like a hot rock variously over Brexit, Titania McGrath, or supporting Harry Miller.
Unfortunately, thanks to the now common belief that word choice is an effect of cultural hegemony, the problem for Doyle is that left partisans are likely to respond by refusing to read his book, if not actively seeking to get bookshops to drop it. And yes, this behaviour is rooted in adherence to a form of word magic. The view that words, ideas, and arguments can cause harm in the same way a punch does means safety is only possible if one refuses to engage. The logic is impeccable: when you think language makes the world, you are frightened of words. Worse, Mill’s harm principle is no defence against people who insist on equating spiritual or psychological harm with physical violence.
Relatedly, one of the most depressing characteristics of our contemporary media environment is what I’ve come to call “the silo effect.” Both social media (by dint of algorithms) and now conventional media (by dint of deliberate hiring and firing) are herding their viewers and readers into ideological silos. Once there, they’re unlikely to encounter anything other than intellectual comfort food with which they already agree.
Cancel culture works best on little people—junior academics or low-level employees. Neither I nor Doyle (as we admit) can be cancelled. In both cases, people tried and failed: their behaviour parlayed our books into bestsellers. We can, however, be siloed. Unless you’re J.K. Rowling, siloing works on nearly everyone.
I wish I knew how to fix this, because it means Free Speech and Why it Matters will be ignored by the people who most need to read it.