TRIGGERnometry - Toby Young: "New Law is the Greatest Blow to Free Speech"

Episode Date: May 9, 2022

Toby Young is associate editor of The Spectator and is the Founder and Director of The Free Speech Union. Join our exclusive TRIGGERnometry community on Locals! https://triggernometry.locals.com/ OR Support TRIGGERnometry Here: https://www.subscribestar.com/triggernometry https://www.patreon.com/triggerpod Bitcoin: bc1qm6vvhduc6s3rvy8u76sllmrfpynfv94qw8p8d5 Buy Merch Here: https://www.triggerpod.co.uk/shop/​​​ Advertise on TRIGGERnometry: [e-mail] Join the Mailing List: https://www.triggerpod.co.uk/sign-up/​​​ Find TRIGGERnometry on Social Media:  https://twitter.com/triggerpod​​​ https://www.facebook.com/triggerpod​​​ https://www.instagram.com/triggerpod​​​ About TRIGGERnometry:  Stand-up comedians Konstantin Kisin (@konstantinkisin) and Francis Foster (@francisjfoster) make sense of politics, economics, free speech, AI, drug policy and WW3 with the help of presidential advisors, renowned economists, award-winning journalists, controversial writers, leading scientists and notorious comedians. - Chapters: 00:00 Intro 03:47 Is the FSU Winning? 05:05 Why Toby Started the FSU 07:41 FSU Recent Win: Jeremy Sleath Case  09:03 Elon Musk Twitter Takeover 12:21 Online Safety Bill - Why the Concern? 16:25 The Case For the OSB 20:55 Social Media Regulation Under OSB 25:08 OSB Under Under Johnson and a Conservative Government 33:03 Cyberflashing and Child Protection 35:11 Debate: Legitimate Restrictions On Free Speech 42:38 "Content of Democratic Importance" 47:50 What Can People Do? 50:45 Inevitable Censorship of Online Comedy Learn more about your ad choices. Visit megaphone.fm/adchoices

Hey Francis, do you need new investment ideas? No thanks, I've got all my cash tied up in Venezuelan crypto. Ah, how is Gringo coin doing? It's pronounced Gringo coin. My portfolio is now worth a billion Venezuelan Bolivars. That's about three quid then. Uh, you're right. I should have got new investment ideas. Well, if you want to take back control of your finances, then fortune and freedom is for you.

It was founded by Nigel Farage, who has over 40 years of experience in finance, and politics. Fortune and Freedom is published by South Bank Investment Research and is for the investor looking to access a wide range of informed opinions on lots of different investing opportunities. Their brilliant newsletter covers everything from causes and the impact of inflation to the rise of cryptocurrencies, gold investing and much more besides. Through their daily news commentary and special reports, Fortune and Freedom can give you more confidence in making informed decisions about what to do with your money. Simply go to fortune and freedom.com. That's fortune and freedom.com and sign up for a

free newsletter that will help your money work for you. The link is in the description. The critical thing is the government through Ofcom, the state will be deciding what jokes it thinks you should be able to hear and what jokes you shouldn't. Hello and welcome to Trigonometry. I'm Francis Foster. And this is a show for you if you want honest conversations with fascinating people. Our brilliant and returning guest today is the General Secretary of the Free Speech Union here in the UK. Toby Young, welcome back to Trigonometry. Thank you, Constantine. Thank you, Francis. It's been a while since we had you on the show.

And look, the Free Speech Union has been doing incredible work. Only a few days ago, one of our interns came in who does a bit of reading and research for us. And he's at university at the moment. And he was telling us that at his university, some people, were trying to shut down some kind of event that was going to happen, that had something to do with free speech or whatever. And they were considering shutting down. And then they went, actually, if we do this,

Toby Young's going to come along and fuck things up. And they allow things to carry on, basically, because of that. And you're making great stuff, you know, doing great stuff on other things. How is it going with the free speech union? Yeah, it's going really well. We've now got 9,000 plus members. We've got something like 17 employees. I'm working on it, you know, pretty much full-time.

The demand for our services, you know, is almost limitless. We've just launched an FSU in Scotland. So we've opened a Scottish office, and we've put together a really impressive advisory council in Scotland. You know, we've got Murdo Fraser, former deputy leader of the Conservative group up there, still an MSP. We've got Jim Sillers, former deputy leader of the SMP.

We've got some trade unionists. We've got some poets, some writers, some intellectuals. a huge cross-section of people from, you know, every political side all really concerned about the erosion of free speech in Scotland, particularly when the Scottish hate crime and public order Scotland Act is activated. It's got royal assent, but it hasn't yet been activated. When it's activated, that's going to make, you know, free speech under greater threat, I think, in Scotland than anywhere else in Europe. Yeah, and we're going to talk about the online harms bill for the UK more broadly as well, because that's really important. But as an outside observer, you know,

Francis and I, we don't have any direct involvement with the FSU, although we obviously support what you're doing. I think you're both on the advisory. We're not advised. We've given no advice whatsoever, which is for the massive benefit of the FSU, I reckon. But it seems to me from the outside watching that you keep winning battle after battle. You defend people who get cancelled or fired or whatever, as I said, you are fostering a culture of genuine respect for viewpoint diversity in academia.

You're helping people recover the reputation after they've been unfurred. fairly smeared and attacked. Do you feel that the sum of these battles being won is helping us win the war, or are you more hesitant about that? I'm a little more hesitant. I mean, I don't want to sound too pessimistic, and I think the war is winnable, but it's not going to be winnable particularly quickly. It feels like a kind of generational battle rather than something that can be won overnight. If you think about the long march through the institutions, that's taken 70 years. So it's not that surprising if people have dedicated themselves to capturing, you know, the commanding heights of the cultural economy that those heights are now captured. And to recapture them, or at least to decouple them from, you know, these kind of woke cultists is not going to be something that can be accomplished overnight.

You know, I don't think it'll take 70 years. And I think the presence of social media kind of accelerates these cultural shifts. So, you know, it's possible things may improve a lot over the next five to ten years. And what made you start the Free Speech Union, Toby? It was partly my own experience of being cancelled at the beginning of 2018. I was appointed to the Office for Students, which is the university's regulator in England by Theresa May. And because I was a political appointee to a public role,

you know, all the enemies of the government kind of decided to kind of do some offence archaeology on me, looking at everything I'd said or written or tweeted, you know, dating back to the 80s. And one person literally dredged up something I'd written in 1987, which was 31 years earlier. And of course, because I've been a, you know, a journalist kind of, and a fairly kind of provocative, controversial journalist for more than 30 years, it didn't take them long to find unsuitable material. And I stepped down from that position after about a week, you know, the urging of various government ministers and officials.

And then, you know, the mob then came for me and all my other positions, and I ended up having to step down from five positions in total, including my full-time job, which paid the mortgage. And that was kind of an unpleasant experience. And one of the really unpleasant things about it is that there was no organization to turn to for kind of good professional guidance. You know, if I step down, is that a really unpleasant thing? going to help or is that going to make things worse? Should I resign or force them to fire me? Should I

apologize or will that just be like, you know, blood in the water? You know, who do I turn to for good psychological counseling? And some people, you know, when they're faced with being targeted by an outrage mob, find it really psychologically traumatic, one of the things we've found at the Free Speech Union. So I thought afterwards, you know, after the kind of dust had settled and I've recovered, I thought, why not set up an organisation that can help people that find themselves in this situation? I mean, you think, you think that's a lot of the kind of stuff. I mean, you think, you can rely on your friends and to a large part you can i mean louis louis ck came up with a good line which he got cancelled obviously um he said um people tell you that when something like this happens

you find out who your real friends are and that's true but it's the wrong half in my case it wasn't the wrong half and most of my friends did stick by me but people are a bit reluctant to kind of stand up and defend you in public for fear that you know then the mob will target them so to have a kind of professional organization there to do that for you and offer you advice and put a kind of protective shield around you, I thought that would be, you know, a really helpful service, something that was really needed. And that was really the inspiration for the Free Speech Union. What people think and get wrong about the Free Speech Union is they think it's just about helping people like celebrities, etc., radio presenters. But that's not the vast

majority of the work that you do, is it? No, the vast majority of the people we help are ordinary people, you know, from all walks of life. So, for instance, we recently came to the aid of a West Midlands train driver, a guy called Jeremy Sleith, a Corbinista, actually. And he, on Freedom Day, July 19th, last year, he said on his private Facebook account, thank God the pubs are reopening, I didn't want to live in a Muslim alcohol-free caliphate for the rest of my life. And one of his colleagues complained. He was investigated and fired for gross misconduct. For something he said, you know, a milder. provocative, not terribly funny gag on his private Facebook account.

That was enough to get him fired from his job as a train driver. And he came to us for help. We raised some money. We took his case to the employment tribunal, and we successfully got a judgment of unfair dismissal. And now they're agreeing the compensation he should be paid. But people like that are the people that come to us for help. Ordinary people, not big celebrities like J.K. Rowling,

and you can look after themselves. Toby, before we get onto the online harms bill, which I think is really, really important for us to talk about, really important. Just as a curious aside, we've seen in the last few days Elon Musk's impending takeover of Twitter, if it does in fact happen because it still hasn't been finalized.

As the General Secretary of the Free Speech Union, what do you make of sort of one man taking over one of the crucial platforms in which public debate happens? And of course, I think he's expressed some principles that the three of us would agree with, but the principle of one person having that much control, are you optimistic, are you concerned, are you both? Where do you sit on that issue?

I'm not kind of too troubled by the fact that, you know, one guy is exercising this extraordinary influence. You know, you could say the same about Mark Zuckerberg and Facebook. But I am troubled by Mark Zuckerberg. Okay, but it's not, people objecting to it or objecting as though something like this has never happened before. This is an unprecedented example of one man exercising this extraordinary influence. When social media companies, successful internet companies, search engines,

they're all owned by a handful of billionaires. So, you know, okay, you can change the system. But there's nothing kind of particularly unusual or sinister about what's just happened. And actually, in a way, I think it's an example of capitalism working the way it should, not an indictment of capitalism. You know, it's a market correction. There are all these big tech social media companies, search engines, which are pretty much all progressive in one form or another.

So it's great that someone's come in who doesn't share that agenda necessarily and believes more strongly in free speech. You know, that's an example of a market correction. So, you know, I think it's a good thing. Whether he'll actually kind of turn Twitter into the platform we'd all like it to be, remains to be seen. What I hope he'll do is rather than overhaul Twitter's content moderation policies, I hope that he'll outsource the content moderation. So essentially say to people, look, it's up to you to censor what you want to censor. It's up to you. If you want to take a

risk, if you say, I don't mind being exposed to misinformation or hate speech, then what they see on Twitter needn't be filtered. If they want to just have civil, grown-up, respectful conversations about important public policy issues, then they can turn all the filters on, so they kind of screen out the trolls. But it should be up to the individual as to the risk they're prepared to take. It shouldn't be imposed upon them top down by, you know, content moderators in Silicon Valley. So I hope that's the way forward. I sold my car in Carvana last night. Well, that's cool. No, you don't understand. It went perfectly real offer, down to the penny. They're picking it up tomorrow. Nothing went wrong. So what's the problem?

That is the problem. Nothing in my life goes to smoothie. I'm waiting for the catch. Maybe there's no catch. That's exactly what a catch would want me to think. Wow, you need to relax. I need to knock on wood. Do we have wood? Is this tablewood? I think it's laminated. Okay, yeah, that's good. That's close enough. Car selling without a catch. So your car today on... Carvana. Pick up these may apply. Toby, when you said if they want civil discussions, I'm like, get off Twitter. That's what you need to do.

That will be there. You could create a kind of, you know, a sub-community within Twitter, which is kind of in which people kind of voluntarily screen out the kind of loud, you know, brash, vulgar voices. People like us, basically. Yeah, so we wouldn't be, screen us out. Yeah. Grown up conversations.

Sorry. No, I was going to say, so let's talk about the online harms bill, because this is what we've come to talk about primarily. Yeah. So let's get into it. What's the problem, Tyby? Well, what is it, first of all? What is it and what is the problem with it?

So the online harms bill, it's not called the online safety bill, but it began life as the online harms white paper a few years ago. And Sajid Javid, when he unveiled that white paper, said his aim was to make Britain the safest place in the world to go online, which, you know, sounds to me like the most regulated place in the world, if you want to set up a social media company. Anyway, so it began life there, and it was partly in response to kind of a moral panic

about how the internet was, and social media was harming children, causing them to self-harm, in some cases, commit suicide, providing them with access to drugs and pornography and so on and so forth. So a moral panic about how children were being kind of corrupted, led astray, harmed by, you know, the Wild West.

And so they're... brought it in and it's now kind of it's now kind of gone through a kind of evolutionary process and the latest iteration of it is the second draft of the online safety bill and i'll set out the kind of initial case against it then let's try and steal man the online safety bill and i'll then try and set out the case for it from a free speech point of view and incredibly there is a free speech argument for it and adie indian dories has made that argument so we'll look at that and then tell you why i don't think the free speech case as she's making it for the bill is very compelling.

That doesn't sound too much like a 40-minute lecture. So the kind of... Keep it to 20. So on the face of it, the reason for concern is that it will create a duty of care. It will impose this new legal duty on social media, big social media companies, search engines, Google, Facebook, Twitter, YouTube,

whereby those companies will have to remove harmful content, by which they mean not just content that's harmful to children, but also content that is harmful to adults. And if they fail to do so, they can be fined by Offcom, who will be empowered as the new internet regulator, they can be fined 10% of their annual global turnover. So when you're looking at companies like Facebook, Google, Twitter,

that's billions of dollars. So social media companies, search engines will have a powerful financial incentive to remove harmful content. And the really sinister thing is that it won't just be content that's unlawful that they'll be obliged to remove. They'll also be obliged to remove what has been called legal but harmful content. So stuff you can say offline, you won't be able to say online. So the fact that it's legal doesn't mean it won't be prohibited. and often the stuff that the big social media companies will end up removing, which is perfectly lawful,

perfectly lawful, will be stuff that lobby groups, activists are complaining about. They'll say this is harmful to the LGBTQ plus community, or this is harmful to, you know, recently arrived migrants or whatever it is. And the company is kind of fearful that they might be fine, you know, these huge amounts by Ofcom will err, on the side of removal, censorship. So that's the reason for concern.

It's been described as a kind of census charter. And it means that stuff you'll be able to say, you know, in other countries, you won't be able to say here online. It'll be, you know, one of the most censorious, heavily regulated, you know, environments for social media companies and search engines if they want to operate in the UK. Okay, so that's the sort of,

That's the sort of standard. That's the case against it. What is the case for it from a free speech point of view? Well, I made a couple of notes on the train on the way here, trying to kind of think about how to steal man this from a free speech point of view. So Nadine Dory's makes the following arguments and her ministers in favor of the bill from a free speech point of view. They point out that one of the things the bill will do

will be to repeal various communications offenses, such as the Malicious Communications Act, which free speech campaigners have been campaigning against for some time, the communications offence under which Count Dancula was prosecuted. That'll be repealed. And those communications offenses

will be replaced by a new harm-based communications offense, which is instead of looking at the subject matter of the unlawful communication or the communication to determine whether it's unlawful or not, they'll look at the effect it has. the psychological effect it has on the recipient.

And it'll be unlawful. It'll be an unlawfully harmful communication if it causes psychological harm amounting to at least serious distress. If the person sending the message intended to cause harm to a likely audience, and the person has no reasonable excuse for sending the message.

And Nadine Dorries and her ministers argue that this new harm-based communications offense because it's replacing all these other communications offences which free speech campaigners like me don't like, it'll actually create a more permissive environment than the one we're currently in. So from a free speech point of view, we should welcome that particular cluster of reforms

which were included in the bill. She also says, and she said this on Twitter yesterday, I think in a debate with Fraser Nelson, that there's nothing in the bill as it stands to force social media companies to remove legal but harmful content. All they'll have to do is if it is agree terms and conditions with OFCOM. And in those terms and conditions, yes, they'll be obliged to pledge to remove unlawful content,

but they won't be required by law under this bill to remove legal but harmful content. If they want to do that, they can. So if they want to say, if Twitter, probably not Twitter now, Facebook, if Facebook wants to say, we're going to prohibit this content because even though it's lawful, we think it's harmful. They'll be able to do that, but subject to a couple of provisos.

One of the provisos is that they have to give special protection to content of democratic importance and journalistic content. We'll get onto that in a minute. And when removing content from their platforms, when removing lawful content, they have to have regard for freedom of speech. And Nadine Dory says that, you know,

I'm not going to force these social media companies, at least not in this bill, to remove legal but harmful content. The only thing they'll be obliged to do will be to remove unlawful content. If they want to go beyond that, they can, but they have to do it subject to these various caveats, which will protect free speech. And she argues that this is the first time social media companies have had these free speech duties imposed upon them. So it's a better place from a free speech point of view than we're really. at the moment. And then the final argument, the final

pro-free speech argument, is that once a social media company has agreed its T's and Cs with Offcom, Offcom will then hold that company's feet to the fire when it comes to enforcing those policies. So it'll have to enforce them consistently

and non-arbitrarily and not in a politically biased way. And she argues that that'll make it impossible for Twitter, for instance, in future, to remove Trump from the platform but not the leader of the Taliban or Vladimir Putin. That social media companies won't be able to selectively, you know, apply their community standards and say,

trigonometry's interview with Kathleen Stock has breached YouTube's community standards, but Navarro Media's interview with George Galloway hasn't. You know, they'll have to be consistent. And in that way, that will protect free speech and eliminate political bias. on social media platforms. So that's the case for it from a free speech point of view. And I think you just go back over those arguments to tell you why I don't think any of them

are particularly compelling. So yes, I think the repeal of various communications offenses and the replacement of them by a harm-based communications offense, yes, that's in some ways attractive. It's more attractive than where we are now. and I think it probably will be a little bit more permissive. Fewer people will be prosecuted. I mean, not many people have prosecuted now, but even fewer, in all likelihood,

will be prosecuted for communications offences in future once this bill becomes law. But the shortcoming of this approach of defining unlawful communications by looking at the impact they have on the recipient, psychological harm likely to cause extreme distress. stress, is it kind of, it's creating this kind of responsibility for the state to protect people from psychological harm. And I think that is a very dangerous precedent and not, not something the

state should be in the business of doing. Well, not least because psychological harm is entirely subjective. Well, there's the subjectivity argument. You know, how are we going to measure it? Well, Francis could discuss both of our hairlines and we could, you know, one of us could be deeply offended by another one could see it as a joke. Yeah. And it says, and it says that, um, if it's likely to cause psychological harm amounting to extreme distress to a likely audience. So on Twitter, you say something, you think you're just saying it to your followers. But if one of them retweets it and they then retweet it, it goes viral. It ends up, you know, on the screen of an extremely kind of psychologically fragile person.

It could actually cause them extreme distress. But, you know, why should you be held responsible for that? So, yeah, I think the idea that the state should be in the business of protecting people from psychological harm. And as you say, it's a sort of gold-embossed invitations to activists and lobby groups to say, that's psychologically harmful, that made me feel unsafe. Who are you to say that my distress isn't serious distress? Is it because I'm a, you know, is it because I'm a trans person? You're not taking my distress seriously?

You can just imagine a kind of, you know, a cascade of demands. to remove content on the grounds that it's causing people who are quite psychologically fragile, extreme psychological distress. So that's extremely dangerous and a really dangerous precedent, I think. But okay, even setting that aside, when I, when me and the Chief Legal Counsel of the Free Speech Union had a conversation with one of the ministers and some senior officials in the Department for Culture, Media, and Sport about the bill, they offered this as a kind of quid pro quo. Yes, you know, in some respects, free speech will get worse because of this bill, but in others it'll get better. And look, we're repealing the Malicious Communications Act.

You must be happy about that. Well, yes, but one interesting thing is that these reforms to communications law will only apply in England and Wales. They're not going to, because communications offences are a devolved area of legislation. So they won't apply in Scotland. They won't apply in Northern Ireland. In Scotland, you could be in the worst of all possible worlds in which, you know, companies, social media companies can be prosecuted, find billions of dollars for posting or allowing people to post content that's harmful

under these old communications laws. So, you know, it's kind of like an analogue bill for a digital age in that respect to create kind of a different regulatory environment in England and Wales to the regulatory environment in Scotland and Northern Ireland. I mean, it's going to be an incredible headache for someone who wants, someone who wants to set up a competitor to Twitter or Facebook. They're going to have to get their heads around, you know, unbelievable patchwork quilt complexity of regulations in the UK.

There won't even be one standard for the UK. It'll depend whether you're in Scotland, Northern Ireland, or England and Wales. I mean, it's ludicrous. Toby, before we go, like, this is a conservative government. This is a conservative government bringing this in. If, you know, we're in an alternate universe and Corbyn one and they brought this in, well, I'd be like, this makes complete sense. What's going on? Well, and that's absolutely true.

It's baffling that a conservative government that claims to believe in free speech and, you know, a small state should be bringing in this sledgehammer of a bill, which is going to have an unbelievably chilling effect on free speech online. And one particularly, interestingly, you bring up Corbyn, Nadine's argument that nothing in this bill will force social media companies to remove legal but harmful content. Well, that's true, but it's quite a dishonest argument, because what the bill does is it creates an opportunity, a mechanism

for the Secretary of State at DCMS, currently Nadine Dorees, to bring forward supplementary legislation, probably in the form of a statutory instrument, identifying what are called in the bill priority harms. Those are things that social media companies will have to remove as a matter of priority. They don't remove them, they really will get fined. And it's in that supplementary legislation, in that statutory instrument, that the legal but harmful stuff is going to be included.

So it's likely, for instance, that social media companies will be told, you have to remove misinformation as a matter of priority. You have to remove hate speech as a matter of priority. doesn't matter if it's lawful, if it's harmful, according to this nebulous, open-ended definition, you'll have to remove it. So that's where the real mischief is going to occur in this supplementary legislation.

But Toby, what Francis is getting at, and we'll get to the rest of your point in the second, is you know Boris Johnson, right? You've studied together. We were told, and look, neither of us is, by the way, a big fan, but of his, this is a liberal Tory who wants to reduce the sight of the... the size of the state and keep us all free. And then we had two years like we've just seen.

And now this, how do you explain that? I don't think he's a man unduly constrained by principle. I mean, I think he has instincts, but they can be quite easily overridden. I mean, I think he, I think he has a libertarian kind of default response. And I think that's partly why he didn't want to plunges into lockdown initially, you know, in February, March, 2020. But they were quite quickly, you know, cast aside when he came under a lot of pressure from colleagues and officials, scientific advisors, to lock us down. You know, they proved to be quite fragile principles. And I think in this case, you know, I don't think he's really applied himself to the bill.

I mean, quite often the reason he can be easily kind of bullied, by kind of more authoritarian colleagues into abandoning his libertarian instincts is because he hasn't done his homework. He hasn't mastered the brief. They'll make a number of arguments and he won't know what the counter arguments are. So if Nadia Dory's and, you know,

if it comes up in cabinet, she's sort of mastered this brief. She'll say, no Boris, no prime minister. It's going to actually help from a free speech point of view and she'll make all the arguments I just summarised and he won't know what the counter arguments are. But isn't that his job?

Well, I think he's, I think, I think when Michael Gove said back in, what, 2016, that he wasn't temperamentally suited to be prime minister. And that's why Michael Gobe decided to throw his own head into the ring and withdraw his, his support. I think that's what, I think that was what he was sort of getting at. But he's quite, he's quite kind of, he has quite a short attention span. He's not good at kind of sitting down and going through his boxes. He's not really interested in the kind of nitty, gritty. the minutiae of kind of policy documents and proposals. And that's why, you know, I think Dominic Cummings refers to him as trolley,

because, you know, his nickname behind closed doors in Downing Street is trolley because he's like a wonky supermarket trolley that kind of veers around, according to whoever's pushing it or he's bumped into last, you know. And maybe that's a slight exaggeration. But I think, I think that's the explanation for why someone like Boris, who stars himself, this great kind of libertarian, rabelaisian, Falstaffian kind of, you know, freedom-loving, you know, yeoman, why he is bringing in, his government is bringing in this bill because he doesn't, he's not, he's, he's easily bamboozled and easily

kind of knocked off course and his libertarian instincts can easily be kind of submerged under all this kind of pressure and, yeah, I think that's probably the explanation for that. But just back to your Corbyn point, because the bill creates an opportunity for the Secretary of State, to come up with these priority harms. And that's where the legal but harmful stuff comes in. OK, Nadine Doris may not go completely over the top when she brings forward her supplementary legislation, and it's debated in the House of Commons.

It may be reasonable. We may think, well, actually, you know, the definition of hate speech in this statutory instrument isn't too bad, you know. But what's to stop, you know, a successor? You know, let's say Kirstama wins the next general election. Not out of the question at this point. and appoints Chris Bryant or Dawn Butler as Secretary of State at DCMS, they would then have the power under this bill

to bring forward another statutory instrument identifying all these priority harms. That's where we could really get into a kind of unbelievably censorious chilling climate. You have to legislate for the future possibility that you're political opponents. Not future-proofed against political change. It's bad enough under a supposedly liberty-loving conservative government. What if we have something like a Corbyn-led Labor government who have absolutely no regard for free speech? You know, they'll have the powers at their disposal to impose unbelievable amounts of censorship on what we can say online. You know, it'll be at their fingertips, thanks to this bill.

Hey, Constantine, what razor do you use? I use Russian blade, forging fires of Ural Mountains, hardened in the winters of Siberia, purified in the river of the Volga, and sold over the... counter Ed Boots in Moscow. Is it good? No, it sheds more blood than Uncle Vlad cracking down on political protests. In that case, you need to try Harry's razors. I use them myself and look how clean and smooth my face is.

Yes, my face would also be that smooth if I had no testosterone. Harry's is offering an incredible deal where you get a free trial set of Harry's products, which includes one five blade cartridge, foaming shave gel, travel, travel, blade cover and a free travel size face wash. How much? It will only cost you £3.95. That's just £3.95, which is the cost of the packaging and the posting. This is a good deal.

Yes, and all their products are dermatologically tested and formulated by Harry's experts. Their skincare products are alcohol and cruelty free. Alcohol free. Is this supposed to be a good thing? Harry's razors have a weighted handle, not a cheap plastic one that you get in some mainstream and supermarket brands. This gives you greater control when you're shaving and means you're less likely to cut and nick your skin. Just head to harris.com forward slash trigger to have your set delivered and start shave plan. That's harris.com slash trigger and it's just £3.95 for a trial set. There are certain elements of the build that I do agree with, Toby.

For example, the cyber flashing element of it, I don't understand why people, especially women, should be subjected to people sending pictures of their genitals, for instance. You know, protecting kids from pornography, you know, we've both been involved in education. That is a massive problem that not enough people are talking about. So there are elements of it, which I'm actually on board with. What do you think about that? I agree. I mean, I think there are some aspects of it which are completely defensible, like, you know,

prohibiting cyber flashing. though you get into a slightly grey area when it's cyber flashing between consenting adults, that'll be prohibited too. So that's kind of, should we prohibit that? Why shouldn't it be able to send a dick pick to kind of Mrs. Foster? Because I'm socially conservative, that's why.

That should only be kept for a darkened bedroom. But I think that the clauses of the bill which are intending to protect children, it's hard to argue with them. but it's the stuff which is intended to protect adults from harm, including legal content. That's the kind of really pernicious, dangerous, censorious stuff that's going to have a chilling effect on free speech. Why should the government be able to decide on my behalf what I can and can't see if it's lawful? It's one thing for Parliament to pass laws in a democratic process to prohibit certain things.

you know, that's one thing. You can argue with that, maybe majority shouldn't be able to impose their kind of moral values on minorities and so forth. But, you know, that's one thing. But that isn't this. They're saying that even if a law hasn't been passed, prohibiting certain content on social media, we will insist that social media companies remove it nevertheless

under threat of being fined 10% of their annual global turnover. And that's like, well, why? That's completely undemocratic. You know, why shouldn't I be able to decide what lawful content I'm able to see, you know, on my phone, on my social media platforms? Well, Toby, the argument, and I do actually think for all my strong support for the idea of freedom of speech, of course, you know my position on it. At the same time, I think the argument now is the harm side of these things is becoming more prominent because as these networks become bigger and they connect more and more people, The concern is, and the example I'm about to give is not one in which I particularly share their analysis, but I can see a similar example in which that would be the case is the banning of Donald Trump at the very beginning of 2021.

And the argument from the social media companies was this was an election in the most powerful country in the world with tons of nuclear weapons, and it seemed to them, I don't agree with this interpretation, but it seemed to them that there was essentially an attempt to overthrow the law, lawfully elected candidate by storming the capital. Again, I don't agree with that interpretation, but that's how they saw it. And they felt that given the potential for huge harm that could come from lawful activity, it's not unlawful to say on Twitter that you think the election is illegitimate or whatever. It's not against the law. You're allowed to.

If you and I went down the pub, you could say that, right? That's not against the law. But the impact of someone with, I don't know, 70 million followers saying that over and over and over, they argue, caused people to get to that position where they're storming the capital and people die in the process. Isn't that something that whether you like it or not, whether I like it or not, we do have to reckon with that ideas are powerful things and connecting billions of people together in a place where they can say things of that nature has real world impact. And as a society, like it or not, we're going to have to have some kind of

reckoning with that? Well, I think I would accept that a limit should be placed on free speech whereby people shouldn't be free to say things which are likely to result imminently

in violence. I think that's a legitimate constraint restriction on free speech and maybe you could argue that that was a good reason. That was the rationale for banning Trump from Twitter. what he was saying on the eve of the attack on the Capitol was inciting violence.

And if it was, then maybe that was a good reason. But I think the difficulty with removing stuff, people saying we think the election was stolen, for instance, after Trump's been removed from the platform, is that actually that's not, I think it's hard to make the case that that's likely to lead to imminent violence. Right, user 7345, saying the election was stolen isn't causing the capital rights.

And I think there was the argument that I think Louis Brandeis, who was a Supreme Court justice made in a famous case, I think in the 1950s, in which he said the cure for bad information is not to suppress that information. The cure is more information. Sunlight is the best disinfectant. And the problem with banning stuff that you think is misinformation or is likely to cause insurrection.

is that by banning it, you're not reducing its toxicity. You know, you're forcing it underground. You're forcing it into kind of darker corners of the internet. People who are kind of inclined to be triggered by that stuff are probably going to find it anyway. Isn't it better that it should be on, you know, larger, more mainstream platforms where it can be challenged openly? You know, if you think the election was stolen, you know,

and you make that argument on Twitter, and Twitter bans it. That's going to persuade you that you're right, and that's why it was banned. It's going to persuade other people seeing that ban that there's actually something to it, because otherwise, why would they ban it? They're obviously scared they've got something to hide. Whereas if you let them say it and then rebut it with a kind of overwhelming number of facts, with a kind of mountain of evidence to show it isn't true, then it's likely to kind of lose a lot of its power and lose a lot of its influence.

And I think that sunlight is the best thing. disinfection. And that's a really good argument against suppressing even dangerous misinformation. I agree with you in principle. I really, really do. And I'm obviously playing devil's advocate and trying to explore the argument here. But one of the things we do see on social media is that isn't what happens. When somebody says, I think this, it's not that there's an overwhelming barrage of counter information. It's that everyone's in their own silo now. And what happens is people who think A and people who think B are just in different spaces talking to themselves now. And so you're not getting that traditional idea of if we're all in a meeting with 300 people and you

stand up and you go, I think COVID is caused by 5G and we need to go blah, blah, blah, blah. And 200 other people stand up and go, you're an idiot and here's why and blah, blah, blah. That's what you're talking about. But that's not what happens on social media. What happens in social media is one person stands up and says something, 200 are the other people. people agree who already agree and they never see the people who don't agree with them. I think that's a slight caricature. I mean, you know, we're all on Twitter. Sometimes you do see, you know, quite grown up, kind of well-informed, quite sophisticated, nuanced debates taking place

between people on completely opposite sides of big contentious issues. And, you know, you see it on Facebook too. You see it, you see it on YouTube. You know, it's, of course there are kind of people who don't want to hear the other side. And, you know, but I think it's hard to. to blame social media for that. I think, you know, we've naturally just become a more kind of politically polarized society, both here and in America and elsewhere, and, you know, social media may have accentuated that, but, you know, I don't think it's the root of the problem. I think there's another argument, too, the argument against banning hate speech. So the argument for banning hate speech is that if you don't, you allow these kind of toxic flowers to bloom, and they could result in kind of

unpleasant people getting elected, populist revolts and so on and so forth. But in Jacob Matcham Gama's recent book on free speech, was a history of free speech. He makes this really good observation about Weimar Germany. And he probably know this, but in Weimar Germany, various forms of hate speech, such as anti-Semitism, were criminalized. And various kind of prominent Nazis actually spent time in jail for producing, you know, publishing anti-Semitic material. Hitler was banned for large parts of the 1920s in various German states. And none of that did anything to undermine the kind of appeal and growth of the Nazi party. On the contrary, it allowed them to cast themselves as martyrs at odds with this kind of oppressive state

that was kind of suppressing what they had to say because it was true. You know, it had the opposite of its intended effect. I think that's generally, if you do try and suppress these right-wing toxic points of view, you know, you don't stave off another kind of Nazi victory at an election. You make it more likely. And we keep using the word harm. How do they define this word? Well, they, I think, they, they, they, they, they, they, they, they, they, they, they, I got,

the definition. I wrote it down here. It's psychological harm amounting to at least serious distress. But unless, see, this is the problem. Because what are you going to do? Everybody who then makes a complaint, are you going to have a psychiatrist come in and give them some kind of psychiatric assessment?

How do you define this? No, there's no requirement for a clinical assessment. Now, I think it'll be subjectively defined. If someone claims that a post that they've read has caused them extreme psychological distress, then you'll have to take that at face value. But so, but let's flip it over and look at it another way. So my mother's Venezuelan.

Socialism has been a disaster in my country. One of my cousins literally drinks rainwater from the tank on top of his house, because the running water in his house is so polluted that if he drinks it, it could very literally make him incredibly ill, even kill him. So what? Someone puts a post advocating socialism on Facebook.

I go, I'm distressed. Take it down. Well, I guess this is where the protections for content of democratic importance come in. I mean, this is one of the great, Nadine Dorries and the defenders of the bill make great play of this. If you want to make a political argument, it doesn't matter if it causes people extreme psychological distress. It'll be protected because it's content of democratic importance. And we don't want to censor those important. democratic debates. Then the question becomes, well, who gets to decide what's content of democratic

importance and what isn't? You know, there was that recent, the Meyer Force Data, the first Meyer Force Data Employment Tribunal, in which the judge used this very sinister phrase in which he said that gender-critical views weren't deserving of respect in a democratic society. So, you know, according to that, you know, the member of the Employment Tribunal, you know, he didn't think that was content of democratic importance. Now, you know, that judgment was overturned in part by the Employment Appeals Tribunal and now the Employment Tribunal is taking place again and we don't know what the outcome of that will be. But, you know, for a figure of considerable authority to declare, no, that isn't content of democratic importance because gender critical beliefs are not

deserving of respect in a democratic society. You can imagine that kind of argument being made over and over again. And, you know, do we, how much do we trust Offcom to get that kind of thing right? Don't forget, Melanie Dawes, the chief executive of Offcom, said a couple of years ago that she didn't think that it was appropriate to feature anyone from the LGBT Alliance on a BBC News or ITB news discussion about the Gender Recognition Act because their views were beyond the pale. You know, and okay, she's revised that position now,

but how confident can we be that Offcom isn't going to make similar errors of judgment when it comes to deciding what issues are deserving of this protection because they're of democratic importance and what aren't. I certainly don't trust them. I'd like personally to be able to make that decision myself and not trust to a regulator to make it on my behalf. I mean, there's another problem as well with protecting journalistic content. You know, who gets to decide who's a journalist? Right. Are we journalists? Is this journalism content? You know, we'd have to ask offcom. You know, are they going to come up with, are they going to come up? I'm feeling what they might say about that.

in account of the list of kind of approved, will you have to be regulated by if so or impress? You know, and if you do, that's a way of bringing in state regulation of of the press. You know, until now, regulation of the press has been voluntary. And there was a

huge battle that me and others fought to prevent it becoming regulated by a state regulator in the aftermath of the Leveson inquiry. And we won that battle, but this looks like it's coming, that's coming back now through the back door, if they, if they And if in order to be entitled to this protection,

journalistic content, you have to be registered in some way. You have to satisfy. You've got to be on the register. What do you point in Mayfield? A register problematic YouTubers. I think I've been reassured that there won't be kind of a list of approved, you know, journalists and a list of kind of dangerous journalists, that all you'll have to do to satisfy offcom that you are a legitimate.

legitimate provider of journalistic content. You need to have a proper complaints policy and an opportunity for people who think they've been misrepresented to reply. You have to offer people a right of reply. You have to have a proper policy about how you deal with complaints and factual corrections and you have to correct them and so forth. You don't have to be regulated, you don't have to be regulated by, you know, a regulator like that. That's what they say. But, you know, all these things can be kind of changed as soon as the bill becomes law, you know, by a smaller amendment. So that's all quite scary. I'm very aware that you have to run. So we won't hold you too much longer. But the way you're talking about it, it sort of sounds to me like you've

accepted that this bill is going to pass, right? Well, what can people do before we let you go about this? Is there, do they write to their MP? Do they, you know, find out more from, like, what, what do we do? Well, I think politically, um, it is going to happen. I think it's, it's a, It's a huge mountain to climb to actually derail this now. I mean, maybe that's not impossible, but it feels like that's kind of unrealistic. It's going to happen. There's a lot of political momentum. There's a lot of support for the bill in the House of Commons,

even though the Conservatives have an 80-seat majority. Go figure. So what can we do? Well, we can try and improve it. And what the Free Speech Union is doing is working with a number of lawyers and other lobby groups in this space to try and come up with a raft of amendments to make the bill better. So I referred earlier to this duty that the bill will impose on social media companies to have regard for freedom of speech when making a decision about whether to remove harmful content.

But have regard is the weakest of the legal duties. So, you know, Twitter could say, we've been told that J.K. Rowling's posts are causing serious psychological distress to trans people. We've considered the free speech implications of banning J.K. Rowling from the platform. and entirely dismiss them without a second thought, that would be satisfying the duty to have regard for freedom of speech. It requires you to do no more than just think for a second about the free speech implications and then entirely dismiss them. So one thing we want to do, the biggest amendment,

the one we really hope we'll get through, is to strengthen that duty. So it becomes something just a little bit more onerous, like have particular regard for freedom of speech. We want that duty to be on the same. have the same status, the same legal force as the duty of care. And if we can do that, that would go some distance towards improving the bill. I think another way, you could kind of, in order to, you could say,

let's amend the new communications offence. So in order to convict someone under this new harmful communications offense, you have to show that the person in the likely audience that was psychologically seriously distressed by this didn't consent to it. So, you know, if you build a consent clause into that, that, you know, a person can't be prosecuted if all the members of the likely audience they thought it would end up who'd end up receiving the message, if they'd all consented to it, if you had reasonable grounds for assuming they consented to it. And then you can build in a bit

of what I was talking about earlier, kind of with people deciding for themselves what they can and can't see. And you could say, look, I just assumed that everyone that was going to see this message had consented to kind of, you know, being in the kind of Wild West category. And if they're not in that category, then it shouldn't have been sent to them, it shouldn't have been passed onto them, and that's the person you should go after, not me. What does this mean for comedy, Toby?

Well, Nadine Dory's said, she actually gave as an example, Jimmy Carr's joke about gypsies and the Holocaust, as an example of legal but harmful content that this bill would prohibit. So, you know, she actually honed in on a particular joke

and said, that's the kind of thing this bill is going to put a stop to. So yeah, comedian should be seriously concerned. So hang on a second. So people will be able then to, let's say they watch Jimmy Carr special, they will then be able to go after Netflix as a result of this. Well, I think Netflix will be covered under a new similar bill, which will apply a similar regulatory regime to on-demand audio-visual services. Let's translate it into Facebook, Twitter terms.

If someone took that clip, put it on Twitter on Facebook and shared it, they could be liable to be prosecuted. Well, the platform, which didn't remove it, as soon as someone asked for it to be removed, they would be liable for prosecution. So they would never let that be published in the first? No, no.

So we're getting to the point, so we're getting to the point where the government is going to censor comedians jokes, basically. Yeah. Yeah, well, Offcom will be in the business of censoring jokes, yes. Yeah, and I've met Melanie Dawes, and she doesn't strike me as having a particular really good sense of humor.

So... That's reassuring. But, I mean, that's... That could be unfair, actually. Forget about her. I don't give a share about her sense of humor. We're talking about a government body or a state body deciding what jokes are allowed to be told. Yeah, which is ridiculous.

Yeah. And the critical thing is the government, through Offcom, the state will be deciding what jokes it thinks you should be able to. to hear and what jokes you shouldn't. It's putting itself in the business. It's like the Lord Chamberlain of old deciding what plays can be put on on the West End and what can't, because some people have to be protected. What if your servants read Lady Chattelie's lover? What a fact would it have on them? The state is resurrecting this responsibility to protect people from their own worst instincts, to stop them from seeing legal content, but could be harmful. They're not the

best judges of whether that's going to harm them, cause them psychological distress or not, what effect it's likely to have on their behaviour and their families. No, we are the best judges of that and we get to decide. And so what, where is Netflix in all of this then? Well, I think there's a separate media bill which will regulate on-demand streaming services like Netflix. I don't think Netflix is within scope of this particular, but I think YouTube is, but Netflix isn't. But there's another, but because of that, they've got this other bill ready, which is going to kind of mean that they can regulate, off-com can regulate Netflix, you know, Apple TV Plus, Disney Plus, etc.

So eventually it's going to be the government dictating what you can and can't say online, what you can and can't laugh at. And the interesting thing is that you'll be able to say it on, you'll be able to make the dangerous joke on stage. Provided someone doesn't film it and then put it up online. It just, you just won't be able to make the same joke online. No. Stuff which it's lawful to say won't be lawful to type after this bill becomes.

But then that has an effect on people's psyche. Because we all now spend so much time online. So that is going to then filter into real life. Well, there is a, there is a quick fix, VPN. You know, if you can access the internet using a VPN, which places you, you know, in Florida rather than London, then you'll be able to see. all this unregulated content. I mean, what it will mean effectively is that if you're accessing all this content from the UK, or rather from England and Wales, depends where they are in the UK,

as you said earlier. But if you're here and you're trying to access that content, there's lots of stuff you won't be able to see that you would be able to see if you live somewhere else, almost anywhere else, but particularly in America. So I think there'll be a massive surge in the use of VPNs because people just won't want the government to protect them in the way it's proposing to do. Well, that is quite a sobering thought, Toby. Listen, thank you so much for coming back. I'm sure this is an issue we'll be talking more and more about

because I find that really, really genuinely troubling. It is. It's really scary. It's the greatest blow to freedom of speech, I think, of our generation, and it's a really significant battle. And I would just urge people who want to join this battle to join the Free Speech Union and help us wage that battle. Toby, thank you so much. We're going to ask you a couple of questions from our support.

for our supporters before we let you go. But thank you for joining us and thank you for watching and listening. We'll see you very soon with another interview or also. All of them go out at 7pm UK time while we're still allowed. Exactly. And for those of you who like your trigonometry on the go, it's also available as a podcast. And that's probably going to be fucked as well. Take care and see you soon, guys.

We have to persuade young people for social justice reasons. As a wotster, you should be defending free speed. This episode is brought to you by Netflix's remarkably bright creatures. What if a Pacific octopus held the key to a mystery that could heal your heart? Well, that's Tova's reality. An elderly widow working at an aquarium. Tova forms an unlikely friendship with the crumudgeonly Marcellus, whose remarkable intelligence leads her to a life-changing discovery. Remarkably bright creatures is now playing. Only on Netflix.