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Who are you calling a liberal?

Who are you calling a liberal?

“Ah, there’s no justice like angry mob justice”: Thus, the wise words of The Simpsons’ Principal Seymour Skinner, spoken with a sigh of pleasure as a frenzied horde of pitchfork-wielding moral reactionaries destroys the Springfield “burlesque house”.

Angry mob justice is, we like to think, a problem confined to primitive societies. Education, freedom, tolerance: these have liberated us from such mentalities. Yet, as that great prophet of liberalism, John Stuart Mill sagely observed, even (especially) sophisticated and civilised societies need to be on their guard against “the tyranny of the prevailing opinion and feeling”. The winds of popular opinion can blow strongly, sweeping aside the tiresome processes, and even the conclusions, demanded by justice.

An example of this was in evidence last week when the Honourable Mrs Justice Lang issued her judgement on the case between Core Issues Trust and Transport for London. The details of the case are straightforward. Anglican Mainstream, on whose behalf Core Issues Trust was standing, sought to place an advert on London Buses, in response to one that had been placed by Stonewell. AM’s advertisement read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” TfL initially accepted the advert but then changed its mind and withdrew permission. Core Issues Trust sought a judicial review of the decision, and Justice Lang obliged.

In a detailed and carefully considered judgement, the judge found for TfL, arguing that, according to the “Required Standards” in TfL’s Advertising Policy, the advert was “likely to cause widespread or serious offence to members of the public.”

It is hard to argue with this ruling. In spite of the exhausted mantra that no-one has a right not to be offended, Justice Lang rightly pointed out that different media require different judgements. Buses (big, red, obvious, everywhere) are different from leaflets (small, yellow, innocuous, disposable) which are different from newspapers which are different from the broadcast media, etc. In the light of this, and of TfL’s stated policy, it is hard to see how the advert would not have given offence. Some might disagree with the wording or even objective of TfL’s policy, but these were not under debate. The policy said what it did. The advert said what it did. And the advert lost.

What was interesting in the judgement, however, was not what decision was reached by TfL but how it was reached, and of this Justice Lang was severely critical. The order of events was as follows.

TfL’s advertising space is managed by external contractors, in this instance CBS Outdoor UK (CBSO). Following Anglican Mainstream’s order (on 4th April) for the advert to run on the sides of 25 buses between 16th and 29th April 2012, CBSO submitted the advertisement to the Committee of Advertising Practice (CAP) for consideration (5th April). On 10th April, CAP informed CBSO that they thought the Advertising Standards Authority (ASA) was unlikely to uphold complaints against the advert, and two days later CBSO duly confirmed the order and entered into a contract with Anglican Mainstream.

At the same time, according to a CBSO e-mail quoted in the judgement, “the Guardian newspaper [was] sniffing around asking if we are running this– are you comfortable with us running [it]?” This was shortly followed by another which told TfL reassuringly, “ignore previous email – the first one stands – it will be run, but just wanted to let you know.”

The reassurance did not last long. A couple of hours later the Guardian ran an on-line article about the advertisement (which had not yet, of course, seen the light of day) and this triggered a number of angry responses. Within half an hour the Mayor of London’s Office contacted TfL to ask whether this was happening, to which a Mr Everitt, Managing Director of Marketing and Communications at TfL, responded, “…the ads standards people have cleared it. I don’t like it. Shall I get it pulled?” He then sent an internal e-mail which reported that CBSO “have checked this ad with the advertising standards authorities who have confirmed that the ad does not infringe any UK advertising rules.”

This appeared to make little difference, however. Within a further 40 minutes, TfL issued a press statement saying “we have decided that [the advert] should not run on London’s bus or transport networks. We do not believe that these specific ads are consistent with TfL’s commitment to a tolerant and inclusive London.”

Justice Lang criticised this process. It was not so much the communication between TfL and the Mayor of London’s office that worried her (the accusation had been that TfL banned the advertisement because the Mayor disagreed with it and considered it a potential liability in his bid for re-election). It was quite proper for the two bodies to discuss such an issue and available evidence (unfortunately some crucial e-mails from the Mayor’s office were “not in evidence”) suggests that TfL made the decision, on its own grounds.

The real issue was the “procedural unfairness” and “lack of proper consideration of the relevant issues”. TfL’s decision was unduly hasty. “There was no suggestion in the evidence that TfL sought legal advice nor gave consideration to a possible breach of human rights.” Moreover, it informed the press long before it told its would-be client. “Anglican Mainstream and the Trust were placed in the invidious position of only learning of the decision when asked to comment upon it by the press.”

Judgements of this kind are not meant to be humourous, yet there was an unintentionally comic moment in Justice Lang’s conclusions where, in paragraph 140, she cited “objections posted on the Guardian website” as evidence for the advert’s offensiveness. “Truly disgusting… hate speech… absolute disgrace…”: the quotations cited suggest the judge is unfamiliar with the usual fare for such comment pieces. In the general scheme of things, these almost constitute generous praise. If we were to take many of the comments on, say, the Guardian’s CiF belief site, to heart, prohibited bus adverts would be the last of Anglican Mainstream’s worries.

To make matters worse, there was a distinct air of hypocrisy in this (lack of) process. On several occasions in her judgement, Justice Lang mentioned similarly prominent adverts placed by Stonewall (“Some people are gay”) and the British Humanist Association (“There is probably no God.”) She judged these to be “highly offensive” (though I have yet to meet anyone who found them to be so), saying that they “did not comply with TfL’s own restrictions which prohibit advertisements ‘likely to cause widespread or serious offence’ or which ‘relate to matters of public controversy or sensitivity’.” Moreover, she brushed aside TfL’s justification for running the Stonewall advert, writing “I doubt whether this confrontational advertisement did anything to “tackle prejudice” or “promote understanding” among homophobic people.”

This was what made TfL’s haphazard process over the Anglican Mainstream advert so concerning. “TfL’s decision to exclude the Trust’s advertisement was inconsistent and partial,” she wrote, particularly, “in the light of its willingness to display the British Humanist Association and Stonewall advertisements.”

None of this, to repeat, changed or changes the legitimacy of TfL’s decision. As Justice Lang stressed, had they followed due process and bothered to treat the Anglican Mainstream advert in the same way as they did those of Stonewall and the BHA, they would almost certainly have reached the conclusion that they did. But they chose not to. Whether because of the Mayor, or the Guardian, or bloggers’ anger, or some other reason of “prevailing opinion and feeling”, TfL chose to shortcut the procedures of justice and reach what was clearly a knee-jerk reaction. One wonder’s what Mill might have said.

Which leads to a final irony: John Stuart Mill did, in fact, make an appearance in Justice Lang’s judgement, as did the late great liberal political theorist Ronald Dworkin, whose defence of free speech was cited in the proceedings.

“The strong conviction that freedom of speech is a universal value is challenged today not only by freedom’s oldest opponents (the despots and ruling thieves who fear it), but also by new enemies who claim to speak for justice not tyranny. These new enemies point to other values we respect, including self-determination, equality, and freedom from racial hatred and prejudice, as reasons why the right of free speech should now be demoted to a much lower grade of urgency and importance.”

The irony, of course, is that these eloquent words, taken from Dworkin’s foreword to Extreme Speech and Democracy were cited by not by the BHA, or Stonewall, or TfL but Mr Paul Diamond, acting on behalf of Core Issues Trust. Who exactly, then, are the liberals?

Nick Spencer is Research Director at Theos

Image by Ulleskelf from flickr.com under the Creative Commons Licence.

Posted 27 March 2013

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