This question is neither entirely impractical nor entirely a joke: knowing why you draw a line here and not there makes it more defensible than an arbitrary one. The Lord originally demanded 50 righteous men from Sodom as the price for sparing the city. By methods that are wearily familiar to any parent who’s been in arguments over bedtime, Abraham whittled Him down to 10. (“Fifty, Lord? But then why not 45?.” “Ok, 45.” “Thank you, Lord. But then why not 40?” Etc.) You suspect that if the Lord had chosen 50 for a reason, He would have stuck to it — not that it made much difference in this case; not to Sodom.

The issue continues to concern the central question of political life, namely whether, and if so when and how, the state may interfere with you. In Iran and North Korea the answer is: quite a lot. But anyone who is liberal, in the broad sense of preferring not to live in either a medieval theocracy or a maximum-security prison, will sympathise with J. S. Mill’s harm principle: “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

In Britain, this principle leaves everything to play for. After all, almost anything risks some harm to some others.

The consequent possibility, that liberalism gets eroded from within, is not an idle fantasy. Very recently, an ex-army veteran was arrested for tweeting a transgender pride flag in the shape of a swastika because, the police said, “someone has been caused anxiety by [his] post”. Of course, that statement itself will also create plenty of anxiety; so presumably Hampshire Police should now arrest themselves. Indeed their interpretation of “harm” is so loose that probably the only person Mill’s doctrine could protect is Bartleby the scrivener, the infamous Wall Street clerk who spent all day staring out of his office window at a brick wall, and whose mild but unfailing response to any request to do anything, ever, was: “I would prefer not to.”

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Setting aside that demented reading of it, any actual application of Mill’s rule must therefore draw a principled line between the harms that do, and those that do not, fall under its scope; at least, it had better be principled if we want to avoid the conceptual creep that did for Sodom and now looks like doing for us.

I cannot completely resolve this; but there is a principle that settles things partially, but enough to be useful: namely, consent. This is not new: some philosophers have suggested that Mill had it in mind all along. That what Mill meant, or what he should have said, was: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others who do not consent to it.” In other words, the state may not interfere to prevent consensual harm to anyone. Note this allows that there are other areas where it also may not interfere, for instance where the “harm” is non-consensual but trivial — like asking a policeman whether his horse is gay, a question to which neither the policeman, nor presumably the horse, ever consented.

To see what difference this makes, let us return to 1987, when the Obscene Publications Squad acquired a videotape of sado-masochistic acts among consenting men. At one point a man hammered another man’s foreskin into a block of wood before cutting his (the hammeree’s) penis with a scalpel. Further videos came to light; and soon 16 police forces across the country found themselves with nothing better to do than to join in the hunt for the stars of these home videos, spending hundreds of hours poring over the 400 tapes that they eventually seized. Operation Spanner had begun.

The painstaking work eventually came good, and in late 1989, 16 men stood trial at the Old Bailey on charges including actual bodily harm, unlawful wounding, aiding and abetting assaults against themselves, and bestiality. Bestiality aside, the defence’s main argument was not that these things didn’t happen, but that they happened with the consent of those involved; and, they argued, the law cannot stop consenting adults from doing what they want.

But the House of Lords decided that it can. Where A wounds or assaults B, the Lords said, occasioning him actual bodily harm in the course of a sado-masochistic encounter, the prosecution does not have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the Offences against the Person Act 1861. In short, consent is not a defence.

But in a state that respected Mill’s principle, in the form that I am recommending, it would have been. And it should have been, too.

Doubtless Cornwall crossed a line plucking out Gloucester’s eyes; ditto Darth Vader vis-a-vis Luke’s hand. But should we imprison every surgeon who removes an organ or amputates a limb? The law rightly prosecutes anyone who knocks you unconscious on the street; should it also condemn every boxer who wins on a KO? For what is the difference? No magic power puts boxing rings and operating theatres outside the reach of the law; but there is actual or presumed consent.

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Nor is consent an arbitrary line. Who is better placed than an adult risking injury to determine whether the potential or actual benefits make it worthwhile? No ethicist, politician or judge could have what Hayek might have called the “local knowledge” that you have.

This proposed interpretation of Mill’s formula also applies to others who are neither surgeons nor boxers nor (typically) sado-masochists: I mean, those who study and work in our universities. Anyone who has been near one of these in recent years must have noticed that it is nowadays nearly impossible to conduct an open, honest debate there about, say, the integration of illiberal religious values, or transgender issues and women’s rights. One driver of this process has been the inflation of harm: the idea that by even discussing certain issues — even giving the impression that they are “up for discussion” — you are harming an audience whose identity thereby feels threatened.

Take the case of Lisa Keogh, then a 29-year-old law student at Abertay University, who in 2021 found herself under investigation for asserting that women have vaginas and that “the difference in physical strength of men versus women is a fact”. Younger classmates reported her for making “offensive” and “discriminatory” comments; these prompted a formal investigation into her conduct.

Or again, Imperial College’s harassment and discrimination policy proscribes pretty much anything that anyone might find offensive — citing jokes about religious beliefs and rituals as an example. In effect, Imperial College is reinstating blasphemy laws. It is also frustrating the aim of university teaching, particularly in my own field, where shocking people out of deeply-held beliefs, or at least into critical reflection upon them, is really the point. Jokes can be most effective in this connection, as anyone who has left a religion themselves probably knows, as too will anyone who appreciates David Hume’s sardonic asides on the matter, let alone the more pointed and vicious rhetoric of Gibbon or Voltaire, to say nothing of Life of Brian, The Book of Mormon or Jesus and Mo.

Again: Steven Greer, a human rights scholar with an outstanding international reputation, had for 15 years up to 2020 been teaching a human rights course at Bristol. Because Greer was critical of Sharia Law, Bristol Islamic Society complained, writing in a petition that the university should not permit a Professor to mention the Charlie Hebdo massacre in connection with Islam’s stance on free speech. Bristol conducted an eight-month inquiry before clearing Greer of all charges. But because of his teaching, he was subject to a social media campaign that made him fear for his life. On top of that, Bristol authorities restructured Greer’s course so as to make it, in their words, “respectful” of the “sensitivities” of the students on it.

Again: a Times investigation this week has found that universities have been removing books from syllabuses, or making them optional, because of their disturbing content. Essex University, for instance, has permanently removed The Underground Railroad, Colson Whitehead’s Pulitzer Prize-winning novel about slavery, from its “Beginning the Novel” module, for its graphic depictions of slavery.

But why should anything other than its intellectual value be relevant to whether a book or article is compulsory or even available for study in a course? And what gives university administrators the right to decide that the “harm” to students that these books supposedly risk outweighs the intellectual benefits that they would undoubtedly confer upon them?

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All these cases arise because actors with malicious motives — shutting people up — have manipulated others with more benign motives: administrators wishing to protect students from “harm”. But who gets to decide what counts as acceptable or unacceptable levels of harm? Well, perhaps it should depend on two things: the purpose of the university and the students’ own judgments, as expressed through their voluntary consent.

One practical implementation of this idea could be achieved in two steps. First, at the start of a course, students consent to the risk of exposure to ideas that are legally expressed in ways that they find shocking, disturbing or offensive; and that they understand that by continuing with the course they are implicitly renewing this consent. Consent may be withdrawn at any time by withdrawing from the university. Signing up for a university education would be the intellectual equivalent of stepping into a boxing ring.

Second, any complaint against any lecturer’s or student’s speech would need to show that it failed one of two tests: Is the speech legal? And did the audience consent? If the answer to both is yes, the complaint is immediately and automatically dismissed.

Three clarifications. First, the waiver would not cover illegal speech. For instance, bullying directed at individuals in the classroom might constitute illegal harassment. Nobody is being given permission to direct tirades against students, to defame anyone, to speak in contempt of court, and so on.

Second, the waiver covers expression of ideas, but not speech that directly impaired the functioning of the university, for instance publicising confidential information; nor would it preclude regulation of the time, place and manner of speech. (You couldn’t bring a megaphone into an exam hall.) Nobody would be consenting to any of that.

Third, the proposal does not give anyone a power of veto. A student who withdraws consent is not preventing any teacher or fellow student from saying or hearing anything “offensive”, but rather excluding themselves from a university where the “offensive” speech will happen anyway. I often hear people say: “If you don’t like abortions, don’t have one”; whatever you think of that, it is surely at least as reasonable for a professor to say: “If you don’t like my lectures, don’t attend them.” Consenting adults should be free to discuss Hume or vaginas or Sharia Law, or anything else. If you don’t like it, don’t join in.

The same goes for reading lists. While there may still be a case for specific trigger warnings for students with PTSD, there would be no case for making any text optional, or taking it off the course, just because it contains material that students might find offensive. At any rate, no student who claimed to be — or even was — shocked and offended by a graphic depiction of slavery, could complain about having to read one; that is what they signed up for. Admittedly, this would not address the incentive to virtue signal; but that is a problem in every corporate environment.

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But the basic idea may also have broader applications. For instance, the Online Safety Bill aims to prevent “online harms” by making platforms such as YouTube liable for the harms suffered by users. Replacing “harm” in the Bill with “non-consensual harm” could liberalise it in a helpful way: it could then be a defence, for instance, if the platform could prove that on joining, the user had ticked a box consenting to the risk of seeing distressing material. On the other hand, the Online Safety Bill is so profoundly chilling that to tinker with it may be to miss the point: there is a strong case that the only meaningful way to “liberalise” it would be to scrap it altogether.

Returning to universities, nobody is proposing to scrap them altogether; our Higher Education institutions are remediable and worth fighting for. Still, this proposal won’t solve much by itself. As I have written before, universities should also adopt institutional neutrality, scrap all ideological training for staff or students, institute secret voting at all decision-making levels and offer free-speech induction for incoming students, essentially saying: you can say what you like here, and so can anyone else; this is a good idea and you need to get used to it.

All this could usefully be written into the guidance on the Higher Education (Freedom of Speech) Bill currently going through Parliament. One effect would be to remind Vice Chancellors in England and Wales, and the people advising them, that the whole point of universities is intellectual inquiry and the dissemination of its fruits; and that if this is your aim, then nothing matters more than free speech and academic freedom. What is tragic, and absurd, is that they of all people so obviously need reminding of it in the first place.

This isn’t the case. In fact, I think the Bill’s proposals on this kind of internet content are a dog’s dinner. If implemented, they will undoubtedly suppress desirable levels of freedom of expression on the internet, and cause more problems than they resolve.

Following scrutiny from the Joint Committee, the Bill — which received its second reading in the Commons yesterday — takes recent Law Commission proposals to introduce a “harm-based” communications offence, and places a duty of care on internet providers and websites to restrict content which meets the definition of this proposed offence, give or take a few tweaks. Specifically, they will be required to restrict any content where there’s a “real and substantial risk that it would cause harm to a likely audience”, the sender “intended to cause harm to a likely audience”, and the sender has “no reasonable excuse for sending the message”. Harm is defined as “psychological harm amounting to at least serious distress”. What counts as a “likely audience” comprises whichever individual is reasonably foreseen as encountering that content.

The flaws here were also present within the Law Commission proposals that inspired the Bill. Take the criterion of “psychological harm amounting to at least serious distress”. As many have noted — though apparently not in Westminster — concepts such as “psychological harm” and “distress” are moving targets, semantically speaking, in the sense that the sort of thing they refer to changes over time. For instance, in a society whose primary concern is with the alleviation of negative experience, concepts associated with negative experiences tend to expand their semantic range and become increasingly diluted. So for instance, over time, the category of “abuse” has moved beyond physical events to include emotional ones as well; and the category of “trauma” has extended from atypically catastrophic life events to relatively common happenings like childbirth and bereavement.

At first glance, “experts discover new form of trauma!” looks reassuringly scientific, a bit like “experts discover new kind of dinosaur!”. But whereas the existence of a dinosaur is completely independent of the activities of the experts who discover it, this is not the case with trauma. The more generous experts are willing to be in their definitions, the more people will then count as traumatised; the more people who count as traumatised, the more people will define themselves in terms of membership of that group, and so become more able to exert political pressure on others — including upon the experts themselves, of course — to recognise the precise nuances of their suffering.

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This is one of what philosopher Ian Hacking has called the “feedback loops” within psychological classification. Of course, this trajectory towards dilution is not inevitable, and partly depends on wider political sensibilities within a given society. In a culture which prioritises personal resilience towards negative experiences rather than their automatic accommodation, the sphere of traumatic events might ultimately contract rather than expand. But we don’t live in this kind of a place.

As with trauma, so with psychological distress. Things that were felt as minor ripples centuries ago, if at all — misgendering, for instance, or cultural appropriation, or the mere mention of a slur in quotation marks, or even just free speech arguments themselves — are now crushing blows for many. This isn’t to deny that strongly unpleasant feelings are generated, even as the category of distressing events and experiences expands. Feelings have a habit of rushing in to fill whatever gap has been culturally opened for them.

The point for present purposes is that the number of forms of communication that meet the Bill’s criterion of risking psychological distress is getting bigger all the time. And as the list of things to be distressed about grows by the year, the range of socially permissible speech contracts. One author cited in the Joint Committee report inadvertently underlined this point, insisting that the Bill should “ensure that a broad range of forms of online abuse are acknowledged (e.g. including, but not limited to, ableism, ageism, racism, sexism, misogyny, xenophobia, Islamophobia, homophobia, and transphobia)”. Such a sentence would be incomprehensible to readers even 20 years ago.

And it’s actually worse than this: for the type of content to be removed, according to the Bill, is not that which actually reasonably causes harm in the form of severe psychological distress, but that which is anticipated by others may do so. This point needs to be considered in tandem with the apparent assumption of legislators that harmful internet content is most likely to be aimed at people in virtue of their race, sex, gender identity, religious affiliation, and so on — that is, in terms of membership of protected groups such as those listed in the Equality Act.

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The problem here is that the methods likely to be used by internet providers to gauge what would distress a particular protected group are bound to be clumsy. When trying to work out how some group feels, many of us project onto them the feelings we think they should have, or the feelings we think we would have, rather than the feelings they actually do have. And when it comes to trying to reconstruct the feelings of members of minority groups of which we personally are not members, it seems that many of us err on the side of moral caution, and go dramatically over the top on their behalf, anticipating any anticipated sleight as a deeply felt wound without checking we are right. Things won’t necessarily be improved in this regard by internet providers consulting campaigning groups and charities who claim to speak for a given protected group — as the Bill indicates in at least one place that they should — because many of these have a huge financial interest in giving as dramatic an account of a protected group’s feelings as possible.

Perhaps the Bill’s authors believe this all can be easily overcome by the insistence that the sort of content to be removed is only that which is intended to cause psychological distress to a likely audience. This is a false dawn, however. Gauging the intention behind a given statement — what the author meant by it, and what effect they meant to produce by it — requires a relatively deep understanding of linguistic context. But this is the internet we are talking about, where often you only know an author’s name and sometimes you don’t even know that. Character limits truncate explanation, edit buttons are often in short supply, and disembodied statements float around the internet. The Bill even tells us that “an offence may be committed by a person who forwards another person’s direct message or shares another person’s post”, but this ignores multiple ways in which the intent of the original author and the intent of the person forwarding or retweeting it might diverge.

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Here, too, given the current cultural climate, providers are likely to err on the side of caution and ban or restrict rather than leave alone. And here, too, there’s likely to be expansion not contraction in the frequency with which a statement is judged as possibly indicative of the intention to distress. For just as the concept of distress is subject to feedback loops which shift it unstably towards semantic dilution, so too judgements about the presence of an intention to distress are a moving target, depending as they do on prior judgements about what other people conceivably might find distressing. Fifty years ago, it would have been pretty much inconceivable that saying “men can’t be women” could be distressing to anyone, and so equally inconceivable that someone could seriously intend to distress another person by saying this. These days, you can get banned from Twitter because of it.

If their recent behaviour proves anything, it’s that these online giants don’t need another reason to crack down on content they think will distress certain groups of people. After all, they are already doing this, albeit in a way which reflects the priorities of Silicon Valley technocrats: putting up pictures of penises is fine; saying women don’t have penises isn’t. The result is an impoverishment of public conversation, a sense of burning injustice on the part of many good-faith conversationalists, and huge and unnecessary toxicity between identity groups. Delivering people from psychological distress is the business of therapists or priests, not lawmakers.