On not tolerating intolerance

Why all companies, institutions and leaders should care about free speech

Le Grand Salon de Frascati, which opened in 1789 in Paris. I wonder how many of this lot survived the next five years.

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In 2019, a leading London law practice announced that it was launching an investigation into one of its barristers for having bad political opinions. Allison Bailey, a gender-critical lesbian, had posted tweets that were sharply critical of Stonewall’s campaign for gender self-ID. She launched a campaign “asserting the right of lesbians, bisexuals and gay men to define themselves as same-sex attracted”.

Garden Court Chambers (it’s tempting to write GC Chambers but that would obviously be inappropriate) received complaints about Bailey’s remarks, and took to Twitter to announce that it was investigating her: “We take these concerns v seriously & will take appropriate action.” Bailey sued. Last year a tribunal ruled that she was being unfairly discriminated against, and ordered the chambers to pay her damages of £22,000.

Earlier this month, on the day of the Hamas attacks on Israelis, a Garden Court Barrister called Franck Magennis used social media to declare “Victory to the infitada”. He changed his Twitter/X profile picture to an image of Hamas terrorists breaking through a security fence into Gaza. When a complaint was made to Garden Court, its chief of operations replied, “The complaints about our barristers and staff we investigate are those about the quality of service they provide in their professional capacity…Chambers will not therefore be responding to your complaint about Franck Magennis’ tweets.”

There is more than one way to respond to this inconsistency. You can accuse Garden Court of hypocrisy, or congratulate them on learning from its mistakes. I would prefer the latter. I say so through gritted teeth, since I find Magennis’ tweets disgusting. But generally speaking, I don’t think employers (putting aside whether a chambers is an employer) should be censoring staff for political views, and I don’t want to give ammunition to those who think otherwise.

I don’t mean to imply equivalence here, by the way: Bailey was making points rooted in mainstream beliefs about sex and gender, protected under the law; Magennis is cheering on the murder of innocent civilians by terrorists. Still, calling for him to be fired would reinforce a norm that people who take disagreeable political stands in public should lose their jobs over it. And doing that makes it more likely that people with views I deem reasonable or agreeable will get fired or otherwise penalised.

Believing in free speech is easy; practicing it is harder. A society in which people are free to say what they want isn’t always a nice place to live. It’s not like being in an eighteenth century Parisian salon, or a coffee house with Samuel Johnson and Ben Franklin: a place where exciting ideas and opinions are robustly debated with clever friends and the help of various stimulants. It means sharing spaces with appalling people saying appalling things.

In recent weeks the air has been thick with accusations of hypocrisy, flying both ways. Left wing American academics, justifiably upset about being censored by employers for pro-Palestinian speech, have accused those who oppose cancel culture of going quiet (even if that’s not actually true). Free speech enthusiasts like me have taken great pleasure in seeing far leftists suddenly discover the importance of unrestricted speech. Much as I enjoy schadenfreude, charging someone with hypocrisy is the easy part. I agree with Matt Yglesias when he says, “Any time you find yourself prosecuting a hypocrisy case, you ought to take some time to consider what you think is actually correct.”

Long before current events I was getting frustrated by people who would say, whenever someone was cancelled for vaguely left-coded speech, “So where is the free speech brigade now?”. I would wonder, “Are you saying you’re not in the free speech brigade? Where do you stand on this? What is the underlying principle here, in your view?” Whatever topic you’re discussing, if you are going to point out, “In that situation, you took Position A, and now, in an analogous situation, you’re taking Position B,” it’s better and braver to also plant your own flag at either A or B.

Neither is it enough to say, “you’re not banned from saying it, you just have to face the consequences”. Free speech isn’t just a question of the law, it’s a question of norms, and establishing norms is up to all of us. When Alexis de Tocqueville visited America he noted that although there were more formal protections of speech there than in Europe or anywhere else, there was no place with less “independence of mind and true freedom of discussion”. The social pressure to conform was too great.

When J.S. Mill read Tocqueville’s Democracy In America he absorbed this point and incorporated it into his theory of liberty. Mill argued that having legal protections for the rights of individuals to speak freely is a minimal but insufficient condition of a free society. You also need a culture that tolerates and supports that freedom. Otherwise, even without a tyrant on a throne telling you what you can and can’t say, people will still be subject to “social tyranny”.

An important sub-point here is that social tyranny doesn’t require all or most of society to participate in enforcing it. In recent years we’ve seen how, on certain issues groups with views that are unrepresentative of mainstream voters have exercised immense sway, simply because they shout loudest. Since most of us are passive and conflict-averse, we let the zealous and intolerant define the limits of acceptable debate. Naseem Taleb calls it “the dictatorship of the small minority”.

Because I give talks about productive disagreement, I’ve ended up having plenty of conversations with corporate leaders who quietly tell me that their company is subject to an internal tyranny of the minority. Groups of activist employees wield outsized power over the social and cultural norms of the organisation. Senior executives who want to be seen as liberal and kind - and who want to spend their time thinking about almost anything else than gender or race or sexual politics - cede influence to these groups, right up until and sometimes past the point at which their demands become obviously unreasonable.

Activist employees don’t just influence specific policies either. They set norms - the unspoken rules about what can and can’t be said. My advice to leaders is to make it very clear they support and value diversity of views, just as they support other forms of diversity. They shouldn’t try and set rules about which views are acceptable or not, but they can show that they care about free thinking, and about making the organisation a safe space for the robust exchange of opinions, whatever the context.

This isn’t just an abstract question of ethics or politics, but one of performance. Any organisation where people feel pressured to conform to a particular worldview is essentially making itself stupider and less innovative. Of course, you don’t expect or want everyone discussing politics all the time; they’re meant to be doing their job. But you can’t accept conformity in one realm and expect viewpoint diversity to flourish in another. Groupthink cuts across domains, because it’s a habit of mind. You’re either in the habit of expressing your own opinion and testing it against disagreement or you’re not, and when you’re not, you get worse at thinking. A workforce in which everyone instantly agrees on cultural and political issues is likely to be one where everyone is too quick to agree on business decisions, and scared of proposing anything that doesn’t conform to “the way we do things here”.

I’m not suggesting any of this is easy, by the way. Free speech is really a matter of heuristics and dispositions rather than clear rules and bright lines, which is why people argue about it so much. It is slippery. Someone will find exceptions to every rule you try to establish. But you can still make clear where your instincts lie and where you’re likely to stand when it comes to cases at the margin. I’d like to see more leaders of companies and institutions do that.

At the moment, too many yield to whoever pushes hardest, either from within or without. Or they follow a simple algorithm - like, nobody should be made to feel offended or unsafe. But activists will and do use such rules to censor any views they don’t like. In fact, you should expect people to feel offended and upset, at times, because that’s how you know that orthodoxies are being challenged and heterodox views aired.

That’s not the same as saying that just because someone is offensive, their speech must be protected, or that it’s perfectly fine to upset people. These are questions of behaviour as well as speech, and good manners, sensitivity and compassion are important. But it’s crucial to isolate the opinion from the way it is delivered, before deciding on which, if either, is worthy of censure.

Leaders of all kinds should come down hard on those who try to silence opinions without very strong justification. This is what Karl Popper was getting at when he coined “the paradox of tolerance”. It’s an idea which has been much misrepresented in recent years by people using it to justify awful treatment of people they don’t like. They think it means that “intolerant” views and people (defined however the user wishes to define them) cannot be tolerated in a tolerant society.

But that’s not what Popper meant. He was using “intolerance” in a specific way, and he didn’t mean bigotry or offensiveness. He meant intolerance of debate and disagreement. That’s the one thing a tolerant, progressive, society can’t tolerate. All freedoms can be abused. The worst use of free speech is to silence others.

That’s all for today. I’ll write soon with a modest proposal for how companies incorporate viewpoint diversity into DEI policies. I also owe paid subscribers a rattle bag and I want to talk about how to process the flow of grim news from Israel/Palestine.