The equal oppression of the laws

“… nor deny to any person within its jurisdiction the equal protection of the laws.” (14th amendment to the U.S. constitution)

Americans, especially right-wing ones, object if laws that protect them are applied unequally – if, for example, it is a crime for government emails to be held on private servers, but not when Hillary does it. But of course, right-wingers, especially American ones, believe that many laws don’t protect; they oppress. (And it is a point of honour in those who call themselves libertarians to believe that even more of the laws are like that.)

In the US, they seem to understand that these two beliefs support each other. The right dislike Obamacare – and were angry when Obama gave some Democrat constituencies waivers and deferrals when introducing it. No-one called them hypocrites for complaining about the unequal enforcement of a law they never wanted passed in the first place. Similarly, no-one seems to have missed the Logan Act during the centuries when it went unenforced, but did even the most fanatic NeverTrumper write “We should be above that” when Trump supporters pointed out that if the act was back in use then John Kerry should be prosecuted under it? Washington’s lobbyist class honours the Foreign Agents Registration Act far more in the breach than the observance, but the MSM seem keener to understate that fact than to denounce as hypocrites those right-wingers who say that now unregistered Republicans have been charged, prosecute some unregistered Democrats.

This attitude, I believe, extends to the first amendment. Legal exceptions to the first amendment (‘fighting words’, ‘clear and present danger’) are few, and the right wants it kept that way. But so long as those exceptions apply to them, the right also want them applied to any left-wing violator. They see that as defending free speech – not betraying it.

Here in Britain, by contrast, confusion reigns. Right-wing blogger Sargon of Akkad jokes about not offering violence to a left-wing politico – and the police visit him. Left-wing BBC comedian Jo Brand jokes about thowing acid rather than mikshake over Farage – and the police do not visit her. Whereupon Brendan O’Neill (who has written freedom-supporting articles in the past) writes in the Spectator (of which the same can be said) rebuking Mr Farage for suggesting that they should have.

(A PC gang once visited a pub where Nigel Farage, his wife and their children were dining, eager to cause harm. And he knows the drycleaning cost of getting mikshake off your suit. So I have a bit more sympathy for Nigel than for any other party leader, even Boris, when he yields to the temptation to wonder whether, despite Brand’s claims, it was not quite only a joke. But let us take it that it was just a joke.)

Brendan appears to be saying the true lover of free speech should not demand “the equal oppression of the laws”. Brendan wants an equal liberation from hate speech laws – Jo Brand must have the right to joke about throwing acid at Farage and Count Dankula must be free to film his dog doing a Nazi salute. I would like that too, but meanwhile,

“It is a settled rule with me to make the most of my actual situation, and not to refuse to do a proper thing because there is something else, more proper, which I am not able to do.” (Edmund Burke)

By criticising Nigel for resisting the double-standard (that Brendan also hates), Brendan implies that Farage’s demand for legal equality, not just Brand’s exploitation of left-wing privilege, is what stands in the way of that equal liberation. I think he is making a mistake – and confusing his mistake with the meaning of ‘free speech’.

I would much rather live in a Britain where neither Sargon nor Jo had a visit from the police – but I don’t. I’d criticise Farage if I thought Jo Brand dissapproved the police visiting Sargon – but I don’t (this pertinent hint merely confirms things I’ve heard her say). Unequal enforcement of the hate speech laws has been an essential part of maintaining them from the start. You don’t fight them by protecting that inequality. Free speech means the state shall not control what we may say. The state has yet more control when it does not just ban speech but bans it arbitrarily. So when people try to end that arbitrariness, they may not be failing to “disagree with what you say but defend your right to say it”, as Brendan claims; they may be defending free speech.

For clarity, let me illustrate with an example programme. Imagine (but don’t hold your breath for it) that PM Boris (radicalised by how he’s been treated, and heading a party purified by defections, internal deselections and/or external Brexit Party rivals) announces a bill to roll back the attack on free speech (e.g. repeal every such law since 9/11). However, he also announces that, while this bill slowly works its way towards the royal assent, his government, to protect equality before the law, will prosecute a backlog of unlawfully-suppressed cases from those years – remarks that were ever so woke, but were also hate speech as defined by the equitably-phrased laws, uttered by people who had also demanded the laws punish far less hateful remarks of their opponents.

– To Brendan (I would guess if I had only the Spectator article as my guide), these prosecutions would be no better than evil revenge, discrediting the cause and making the return of laws against ‘hate’ speech more likely.

– To me, they would be a good way of educating the public about what was wrong with those laws, and also a way to make the left think twice about reimposing them the moment they got back in power. But, beyond these tactical points, they would also uphold the principle of equality before the law.

We will not lack for mind-broadening frenemies to defend even after tolerating ‘equality before the law’ arguments against the loudest “I can say it but you can’t” enforcers of the double-standard. The woker-than-thou of today love purging the woke of yesterday – they will supply.

Equality before the law is good in itself. Demanding equality of oppression before the law is a way to expose a dishonest process. Think carefully before judging it a betrayal of our war against the hate speech laws’ evil goal, rather than a way – that can be both honest in itself and effective – of waging it.