NE David Author
NE David                                      Author

Talking Point



So, do we enjoy Freedom of Speech? The answer in some cases appears to be yes - but not in all.

I was sorry to hear last week that Mumford and Son's lead guitarist, Winston Marshall, had left the band citing online abuse regarding comments he'd made about a book he'd been reading (see here for details). The book and its contents are neither here not there for the purposes of this article but suffice it to say that it was anti left-wing in nature. Rather ironically, Marshall then endured further abuse from the other end of the political spectrum "this time for the sin of apologising". It would seem he can't win. So much for Connor Garel's statement in Vice magazine that cancel culture "rarely has any tangible or meaningful effect on the lives and comfortability of the cancelled". Although in terms of comfortability this may well be true for Marshall as I read over the weekend that his father, the hedge fund manager and philanthropist Paul Marshall, was worth a cool £300 million according to the 2011 Sunday Times Rich List. But just as The Beatles told us that money can't buy us love, it seems it can't buy you Freedom of Speech either.


This comes at the same time as it appeared that the trend of cancel culture was being forced into retreat. Earlier in the week we heard that the Royal Academy had apologised to artist Jess de Wahls after removing her work from its gift shop following complaints that she had expressed transphobic views (see here for details). The Academy went on to say "we had no right to judge her views on our social media. This betrayed our most important core value - the protection of freedom of speech". Hmm... Should have thought of that earlier. According to The Art Newspaper their belated apology was greeted by a storm of protests from Royal Academy students (see here for details). It seems the RA can't win either.


I suspect the motive for the Royal Academy's turnaround may not be entirely selfless. It more likely originates from a fear of litigation following the result of the recent court case featuring Maya Forstater (see here for details). I found the case of particular interest - not because of Ms Forstater's actual views (they've been expressed often enough elsewhere) - but rather because of the surprise I felt to learn that one's beliefs and one's right to voice them could be subject to law. Are we really saying that what we think can be legislated against? If so, do we truly enjoy Freedom of Speech?


The University of Cambridge's new statement on the matter gives the game away. Vice-Chancellor Professor Stephen J Toope said: "Freedom of speech is a right that sits at the heart of the University. This statement is a robust defence of that right. The University will always be a place where one can express new ideas and controversial or unpopular opinions, and where those views can be challenged. The statement also makes it clear that it is unacceptable to censor, or disinvite, speakers whose views are lawful but may be seen as controversial". (The underlining is my own.)


So it's clear. Our ability to think, and express those thoughts freely in public, are constrained - both by law, and in the case of Winston Marshall, by the extremes of public opinion. Is that what we mean when we talk about 'Freedom of Speech'? Maybe not.

This time last week we were eagerly scanning our TV and computer screens to see who had won

the US Presidential Election. Some of us still are. The Democrats and the media have called the race for Biden but his projected victory has yet to be formally confirmed. Trump's lawyers have launched a flurry of lawsuits alleging widespread voter fraud and corruption which call the result into question. But if this process plays out as I think it will, I believe it will only serve to bolster rather than diminish the American democratic system. Here's how.


Yesterday I was pleased to see that a team of international monitors from the Organization of American States (OAS) has praised the conduct of the US election. The delegation, which had 28 experts and observers from 13 countries said in its preliminary report: "While the environment of the elections was competitive and fraught, the ability of voters across the country to access the vote in less than ideal circumstances exemplifies the democracy for which the United States is renowned and which it has championed across the globe. The OAS mission urges all political parties, candidates and citizens to allow this democracy to prevail and to allow the remainder of the electoral process to unfold within the framework of the law."


But, despite this ringing endorsement, we live in the real world and no democratic system is completely flawless. There will inevitably have been irregularities and glitches. Human beings and computer systems both make mistakes, intentional or otherwise. Some disgruntled employee may well have dumped some unprocessed ballots into the trash on the way home after a bad day at the office. The fat-fingered press of a button (who of us have not done that at some time?) may have inadvertently allocated votes to the wrong candidate. Stuff happens.


Team Trump will seek to expose these incidents and use them to try and prove his case. As the Senate's top Republican, Mitch McConnell, has said, they are within their rights to do so. "The core principal here is not complicated. In the United States of America all legal ballots must be counted, and illegal ballots must not. The courts are here to work through concerns." Which all sounds to me like an important part of the democratic system.


Trump may win some small battles. He has already succeeded in persuading his erstwhile ally, Fox News, to withdraw their call that Biden had won Arizona when only 73% of the votes had been counted. Quite right, too. Subsequent counting has severely reduced Biden's lead in that state and has made the original call look premature. But this and others such will be minor victories and unless he can prove fraud and/or corruption on a significant scale (and I don't believe he will), he's not going to win the war.


However, there does remain one major fly in the Biden campaign's ointment. That is exemplified by by the situation in Pennsylvania where local election law provides for absentee ballots postmarked up to and including polling day but received several days later to be counted. This has helped Biden to 'take' the state. I have every confidence that the votes cast under this practice will have been properly dealt with so the question is not one of voter fraud or irregularity but whether the law itself is appropriate. If progressed, this will be a question for the US Supreme Court to decide and is precisely the reason why Trump filled the recent vacancy caused by the untimely death of Ruth Bader Ginsburg with his own appointee, Amy Coney Barrett, thereby increasing the Republican majority on the bench to 6-3.


Don't be surprised if the case goes in Trump's favour and Pennsylvania's electoral practice is ruled constitutionally unsound. Courts of Law are quite capable of making political decisions - as we discovered here in the UK when our Supreme Court under Baroness Hale ruled the government's prorogation of parliament unlawful in the fight over Brexit. I expect the case to go all the way and although it may not change the final outcome if successful, it could still prove damaging.


But if the legal process Trump has initiated runs its course and all but a few minor irregularities are shown to be false, then not only will Joe Biden be able to point to a major victory but it will also give the American democratic system a much-needed clean bill of health.