All of us first – when it’s difficult

by | 25 Aug 2023

We fail when we try to solve systematic crises one at a time. If the problem is systematic, the solution has to be too. That's what's going wrong in the 'free speech' debate.

When a problem occurs, fix it. If the same problem keeps occurring, trace back, try and understand what is the source and fix that. This is good, fairly basic advice to apply to most situations. But what if no-one agrees on what the source is? What do you do then?

Or, to phrase that another way, is there an ‘all of us first’ solution to controversial and divisive problems? Can we tackle the specific and the fractured with the general and the universal? Can solutions pull things together rather than pushing them further apart? I think they can.

This is on my mind because of the furore over the cancelation of the Graham Linehan gig last week, but this isn’t about trans issues or the interminable debate about what is and isn’t comedy. This is about asking if it is possible to find structured solutions to problems which at least give us a civil framework in which to disagree. (Disagreeing is good for us.)

Let me start out here by putting down on the table the reality that these issues are ones about which it is almost impossible to comment without those comments being represented as ‘bad faith’. Either I’m writing this because I desperately hate trans people or I’ve pulled my punches because of how much I despise women, or whatever. So let me start out by trying to persuade you that this is all in good faith.

It starts with this – I have opposed blacklists and banning all my life. This is because I did what I proposed in the first paragraph above, I took a step back and I looked at this recurring problem. I looked at the McCarthy anti-communist witch-hunts, the blacklisting of gay artists in many countries, the blacklisting of trade union activists in Britain in the 1980s, the banning of dissent in authoritarian countries around the world, the first Spanish Inquisition, the Salem Witch Trials…

There is a consistent feature; no matter what good intentions they set out with, legitimising blacklists and exclusions always ends up doing by far the most harm to minorities. In the US, tactics originally developed by the liberal left (challenging racist text and so on) have now been embraced wholeheartedly by the far right, and book-banning is rife across the states.

Eventually, it is always the dissidents who end up on the wrong side of ‘cancellation’, and it turns into persecution. I hold a consistent, moral, ethical and principled position that it is unhealthy for society to operate on the basis of blacklists.

Why? Because of what they are. They are extra-legal methods of constraining behaviour. We set laws which delineate what we are willing to accept in society and have structured (and fairly-judged) punishment for those who cross lines. Blacklists are a way to add new, ad hoc lines and impose new, non-legal norms on people by excluding those who ‘do not fit’.

On the other hand, I am no free-speech absolutist. We absolutely must constrain what people are allowed to say, and we do it all the time. From contempt of court to defamation to false advertising, there are no shortage of things that we can’t ‘just say’, and there is a very, very good reason for it.

The point is that we must create a shared structure for this. If I can’t say something, neither can you. This is what we call the law, and it is constantly being updated. Consistent application of social rules is really important. And, coming from my perspective, key among those laws is protection for groups who face persecution or discrimination – what we call equalities law.

This is why my ears pricked up over the Linehan affair – not because I’m about to dive into the gender culture wars (there are no shortage of people on either side to keep that conflict going without my help…) but because of the way Leith Arches tried to frame its decision to cancel Linehan’s performance.

Private businesses are not private at all – they are licensed to trade with the public and they are legally required to be even-handed

A quick recap; the Stand Comedy Club cancelled an appearance by Joanna Cherry because staff didn’t agree with her political/ethical (delete according to how you see it) beliefs and Cherry provided a legal opinion to say that this was clearly illegal and the Stand backed down.

Leith Arches sought to get round this problem by citing a different, commercial reason for cancelling Linehan’s show. The reason given was not that the venue or its staff objected to Linehan’s views but that their customers did and they would boycott the venue, losing it money, presenting it as a commercial decision to cancel the show and therefore not a breach of equalities law.

This is why blacklists are so dangerous – by trying to work around the law (in this case equalities law), it creates a precedent for others who want to get around the law too. So try this on for size: “The ‘no blacks’ sign in the window? No, no, I’m not a racist, but a lot of my customers are, and if I let black people in here they’ll stop coming, so this is a purely commercial decision and has nothing to do with equalities law.”

And then repeat ad absurdum until you see precisely why we’re not allowed to do this. Thankfully, by the time I was carrying out job interviews it was already the case that anyone on an interview panel saying ‘I think the second candidate [who happened to be white and plays golf] will just fit into the team better’ was breaking the law. By then responsible employers were operating on a candidate scoring basis which could be verified.

(Honestly, over the years I have noted just how often it turns out that the ‘difficult’ person who ‘is a bit of a bully’ turns out also to be the person who is in a minority in a workplace.)

What would this mean in the Linehan/Leith Arches situation? What it means is that venues should have a clear, public, legally-compliant booking process and that they use to make these decisions and that that process is applied equally.

Now, for those who think this means I’m saying ‘so a venue has no option but to book people it hates’, I’m saying no such thing. You could for example put clear clauses in your booking policy about unacceptable language or zero-tolerance of bullying or whatever you want. It just means you have to apply those rules equally. 

For example, you could refuse to book people with a track record of racist jokes. But, if comedian X is banned because of offensive, right-wing jokes from ten years ago, so is Janey Godly. You can’t pick and choose.

Because we’ve been over this before. Private businesses are not private at all – they are licensed to trade with the public and they are legally required to be even-handed. Bakers refusing to do wedding cakes for gay couples or Christians who run hotels refusing to give double beds to unmarried couples or whatever is illegal. Full stop. There must be consistency.

If you think I’m talking about trans issues throughout this, I’m not. I don’t really fight that fight. I’m thinking about Palestinian rights, the right to call for a boycott of Israel, or Saudi Arabia, or to actively oppose nuclear weapons. This is what the powerful want to silence, and we need to stop that from happening. That’s why we have consistent legal protections from arbitrary discrimination.

It is horribly difficult to solve these big social problems on a one-at-a-time, ad hoc basis

But finally, is this all terribly straight-laced and prudish? Well, to be clear, I support non-violent direct action which is in breach of the law. This is absolutely a legitimate element of a democracy and should also be protected. But let’s be clear what that means.

First of all, profit-making commercial entities shouldn’t be engaged in illegality. They are just (at least potentially) too powerful. They must abide by the law under all circumstances. We should be free to boycott them, not the other way round. Direct action is for citizens and non-profits; illegality should never be a part of profit.

But this is extra-legal direct action. It is effective because it is a statement, and it is a statement because the people involved are making a sacrifice. During my childhood it wasn’t unknown for my mum to be in jail overnight, because she regularly participated in peaceful sit-in blockades of Faslane. People in jail for direct action isn’t a failure of the system. Others have a legal right of access which has to be acknowledged.

However then (unlike now) this was seen as a legitimate part of democracy and wasn’t penalised with the draconian laws that the Tories are introducing for climate protestors. That’s the fight you fight if you’re on the left. You fight for the structure of a society that allows debate and conflict to be managed. And then, when a debate is settled, you may wish to change the law to take that into account .

What I’m trying to argue here is that hundreds (if not thousands) of years of civic political campaigning has found ways to push effective change while working within the bounds that democratic norms and the law allows. Sometimes you need to go further (when the law is fundamentally wrong), but that isn’t how we exist in a liberal democracy.

I believe that we can create a framework which is consistent and strong enough to give space for the debate that is taking place over gender issues. I believe that within that framework, no-one should be constrained from the kinds of campaigns they want to run. I believe that, like it or not, we need to live with difference and different views.

Had Leith Arches created a clear, consistent bookings policy which was legally compliant, had it been enacted properly and had it then excluded Graham Linehan, we wouldn’t be talking about any of this just now. If that bookings policy also happened to exclude a particular drag act (for example), that’s just what it is. That’s how equalities works.

What I’m trying to get across here is that, just as with (for example) the situation with rape-accused footballer David Goodwillie and the crisis that erupted when he signed for Raith Rovers (which I wrote about here), it is horribly difficult to solve these big social problems on a one-at-a-time, ad hoc basis.

But if we step back for a second and try and think of that ‘all of us first’ ethos, of what creates the society that lets all of us feel safe and protected enough and also free to express our mind enough (no-one is completely safe, no-one is completely free), we can achieve a society that disagrees but doesn’t have to be at war with itself.

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