The Laurence Fox ruling is a disaster for freedom of speech

So you can be punished for making a rhetorical flourish now? You can be dragged to court, branded a defamer and slapped with a bill for tens of thousands of pounds for using rhetoric to make a point? For engaging in bombast, deploying a sly style of speech to get one over on your critics? That’s the takeaway from the Laurence Fox libel trial. Mr Fox, the actor turned social-media renegade, has lost his libel trial against three public figures whom he baited online by mischievously referring to them as ‘paedophiles’. This should horrify everyone who gives even the slightest damn about freedom of expression.

It was a curious trial. It all kicked off in October 2020 when Fox slammed Sainsbury’s for supporting Black History Month. Sainsbury’s tweeted that anyone who has a problem with our ‘diverse society’ is ‘welcome to shop elsewhere’. Fox said this amounted to ‘promoting racial segregation’. In response, Simon Blake, a former trustee of the LGBT charity Stonewall, Colin Seymour, a drag artist, and Nicola Thorp, a journalist, branded Fox a racist. The most stinging accusation came from Ms Thorp. ‘Any company giving future employment to Laurence Fox, or providing him with a platform, does so with the complete knowledge that he is unequivocally, publicly and undeniably a racist’, she said. Oof.

Fox was irritated, as well he might be: it was not at all clear what was ‘racist’ about his Sainsbury’s tweet. So he went for his critics. ‘Pretty rich coming from a paedophile’, he said, in response to Blake’s tweet about his ‘racism’. ‘Says the paedophile’, he said in response to Seymour’s tweet.

Then there was his response to Thorp’s tweet. ‘Any company giving future employment to Nicola Thorpe [sic] or providing her with a platform does so with the complete knowledge that she is unequivocally, publicly and undeniably a paedophile’, it said. Fox’s mimicry of the exact wording Ms Thorp had used to damn him as a racist made it crystal clear what he was up to here: he was turning their words back on them. He was returning rude fire. He was saying, ‘If you can falsely accuse me of being a racist, I can falsely accuse you of being a paedophile’.

It was a rhetorical game. A verbal stunt. A drawing of linguistic daggers. It was not a serious allegation of sexual malfeasance – it was a performative upping of the mud-slinging stakes. The intention was not to make people believe that these three individuals are paedophiles – Fox and everybody else knows that they are not – but to make it clear that he is not a racist. And he sought to achieve this through essentially saying: ‘I am about as racist as you are paedophilic.’ Which is to say, ‘Not at all’. Not one person of good faith or sound mind will have read Fox’s tweets and thought, ‘Wow, those people are paedos?’, and it is a grave insult to the intellectual capacities of the masses to suggest otherwise.

And yet, the High Court has found against Fox. Taking literalism to dizzying new heights, the judge criticised him for failing to show that his allegations were true – yes, because they weren’t! I know judges are out of touch, but surely they’ve heard of rhetoric and humour. The saying of things not because they’re true but because they are silly or surreal. Fox’s claims were ‘baseless’, the judge said. Again, we know. That was the point. ‘Calling me a racist is as baseless as someone calling you a paedophile’ – that was his case boiled down. The baselessness of his allegations were baked into the very allegations themselves.

We’d all figured that out already. Because we have brains. We know the difference between a rhetorical device and a grave accusation. The courts, however, seem to think it is beyond the ken of us simple-minded folk to distinguish between silly speech and sincere speech. At an earlier stage of the Fox libel clash, the Court of Appeal ‘did not accept that the ordinary reasonable reader would obviously understand Fox’s complex rhetorical point that he was no more a racist than they were paedophiles’, as one legal observer summarised it. Is anyone else feeling insulted? I’m fairly ordinary, and I like to think I’m reasonable, and I instantly understood what Fox was doing. It wasn’t rocket science.

‘The law affords few defences to defamation of this sort’, decreed the High Court. And that’s the problem. That the defence of rhetoric is not permissible under our libel laws is dreadful. Hyperbole is key to the to and fro of public discussion. As is mockery, scorn, piss-taking. The literalism of our libel system is an enemy of free speech. What will happen now if someone calls a New Labour apparatchik a ‘murderer’ for their role in the Iraq War? Should we drag them to court, given New Labour individuals never actually murdered anyone? What if I accuse some leftie of ‘getting into bed with Hamas’ even though they’ve never actually shagged a terrorist? That’s baseless too, literally speaking.

Unlike the stiffs who run society, many of us understand that literalism is not the only road to truth. Colour and argument and linguistic embellishment also help us get to the heart of a matter. We should take inspiration from the US, where the First Amendment permits ‘extravagant exaggeration employed for rhetorical effect’. Such ‘rhetorical hyperbole’ and ‘imaginative expression’ has ‘added much to the discourse of our nation’, the Supreme Court once ruled. Until the people of Britain can make a defence of ‘rhetorical hyperbole’ in court, we will lag in liberty behind our American cousins.

There’s another chilling component to the Fox trial. Fox countersued Blake, Seymour and Thorp for calling him a racist. And on this matter, the court said it does ‘not regard the particular imputations against Mr Fox… as defamatory’. The court refused to make a ‘determination’ as to whether the accusation that Fox is racist is ‘substantially true’. That is not a question that can be ‘resolve[d] within the framework of this litigation’, the ruling weirdly says. What does this mean? Why can the High Court decree that it is defamatory to refer to three non-paedophiles as paedophiles, but it cannot decide if it’s defamatory to refer to a non-racist as racist? Do our libel laws only protect certain people against certain accusations? Seems iffy to me.

It looks to some of us as though this ruling implicitly upholds the right to call people racist. Or at least, the courts will not treat an unprovable accusation of racism as seriously as they will an unproveable accusation of paedophilia. And so one of the deadliest weapons in the moral armoury of the elites – the accusation of racism – remains intact. That accusation is very often more than a rhetorical flourish. It is a tool of expulsion from polite society, a potentially career-ending damnation. And yet it seems untouched by the Fox court ruling, whereas everyone else’s right of rhetorical dissent against such accusations has been pummelled. This ruling trounces the people’s liberty to speak out of turn, and therefore benefits no one but the powerful.

Brendan O’Neill is spiked’s chief political writer and host of the spiked podcast, The Brendan O’Neill Show. Subscribe to the podcast here. His new book – A Heretic’s Manifesto: Essays on the Unsayable – is available to order on Amazon UK and Amazon US now. And find Brendan on Instagram: @burntoakboy