Corn dealers were the bankers of the early 19th century.  In the popular imagination, they were monsters who threatened the poor with starvation by inflating their prices to satiate their greed.

The abused gentlemen, naturally, hated the opprobrium, while the authorities wondered whether agitators would spark food riots or revolution.  When he considered what limits the state should place on free speech John Stuart Mill reached for these objects of popular hatred

 An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavorable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost. That mankind are not infallible; that their truths, for the most part, are only half-truths; that unity of opinion, unless resulting from the fullest and freest comparison of opposite opinions, is not desirable, and diversity not an evil, but a good, until mankind are much more capable than at present of recognizing all sides of the truth, are principles applicable to men’s modes of action, not less than to their opinions.

Notice that Mill does not say that agitators should be punished for offending, libeling or hurting the feelings of corn dealers. Their criticisms may be horribly unfair. They may wound or frighten. No matter. Unless agitators were directly inciting violence, they should be free to say what they wanted to say, as should everyone else.

I have no difficulty in agreeing in our nervous post-Rushdie world that a believer may suffer a psychic wound if he hears his faith criticised. Like a corn dealer, who has sleepless nights because of the hurtful accusations thrown at him, he may smart and rage. According to David Aaronovitch, Mehdi Hasan, the former political editor of the formerly secular New Statesman, justified censorship by telling a debate last week that the prophet Muhammad was more important to him that his children. I could make some cheap crack along the lines of I’m glad he’s not my father. But although I find such attitudes fanatical, I do not doubt Hasan is telling the truth.

But look where such truths lead. They authorise criminal sanctions to protect religion. The state can punish blasphemy and heresy, institute laws against inciting religious hatred, as New Labour tried to do, ban books and control speech.  My argument against is essentially pessimistic. I would point to the use of blasphemy laws to persecute Christians, liberals and members of minority sects in Pakistan as evidence enough against the harm that censorship does. Even in France, I could go on, the excessive privacy laws and prohibitions on Holocaust denial and Armenian  genocide denial  help rather than hinder the extreme right and left by convincing voters that conspiracy theorists are right and the elite has something to hide. The pessimistic utilitarian argument for free speech flows naturally from our experience of dictatorships in the 20th and 21st century. Societies that force citizens to bite their tongues are not happy places.

Mill writing at the high point of Victorian liberal self-confidence puts forward the optimistic argument for free speech. Psychic wounds are not the same as physical wounds, he implies. If your beliefs are well founded, you should welcome criticisms, or at least be able to answer them without calling for the police. If they are not, well perhaps your beliefs are not as well founded as you imagine, and you should think again. The only circumstances where the religious can rely on the forces of the state is when a demagogue is inciting a mob outside a mosque, church of synagogue. Free speech allows self-improvement.

Mill’s road is hard one, a harder one than he acknowledges, because it demands we examine our taboos, which in extreme cases may indeed mean more to dogmatists than their children do. But both for the liberal pessimist and liberal optimist it is the only road to follow.

Unfortunately, the British courts will not take it.  In the past few weeks, we have had the case of Azhar Ahmed , who was punished for writing on Facebook that ‘all soldiers should die and go to hell’. The magistrate did not say that Ahmed was inciting the murder of soldiers or cite evidence that he was in a conspiracy to murder soldiers. The mother of a dead soldier read what he had written and was hugely offended, as well she might have been, and her offence was reason enough for the court to convict. The magistrate said the test for the law was whether what Ahmed had written was ‘beyond the pale of what’s tolerable in our society’. As the originators of most ideas we now accept began ‘beyond the pale’, this was not a comforting statement.

Then there was the case of Matthew Woods jailed for making a tasteless joke about the missing child April Jones. Again, there was no evidence that he was inciting child murder or planning to murder a child. Finally, the courts jailed Barry Thew for eight months for wearing a T-shirt that celebrated the murder of police officers. (His son had died in police custody.) It was not a part of the prosecution case that passing strangers in the street might see the t-shirt and turn into cop killers.

I hope I do not need to say that I do not agree with people who want soldiers to go to hell or celebrate the murders of children or police officers. I have enough self-confidence to assume that I or my fellow citizens can beat them in open argument without resorting to the law. Whether my fellow citizens want to engage in open argument is another matter. The writer who produces the Heresy Corner blog maintains that the British are becoming less liberal. Heresy Corner points out that all these cases began with members of the public calling the police and demanding punishment. Their willingness to turn to the law suggests that the notion that we can handle arguments ourselves without needing the state to censor may be weakening.  ‘Politicians in recent years (not just New Labour ones) have often been unable to distinguish between disapproving of something and wanting to ban it. The gap between “I don’t like X” and “people who do X should go to jail” should be a lot wider than it seems to have become.’

You can see the same authoritarianism at the top of society.  The growth of Facebook and Twitter have hugely expanded the opportunities for the easily offended to find grounds to take offence and demand that prosecutors intervene. After he was humiliated for his pursuit of Paul Chambers – a pleasant man who made a joke on Twitter about blowing up an airport if he could not fly to see his girlfriend – the Director of Public Prosecutions has called in lawyers, and asked them to help him draw up guidelines for policing the Web.

A useful guideline, one might even assume a binding guideline, came from the Lord Chief Justice in the Chambers’ case. As he overturned the conviction, Lord Judge defended the right of the British to use ‘satirical, or iconoclastic, or rude comment’, and to engage in ‘the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it. We should perhaps add that for those who have the inclination to use Twitter for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.’

Contacts who were at the meeting, however, tell me that the DPP does not regard the Lord Chief Justice’s verdict as binding. It was just a one off that applied only to Chambers, apparently. Prosecutors can still go chasing after Twitter and Facebook users without regard to Lord Judge’s liberal instincts. It looks as if defending free speech from a mobbish public and censorious politicians and law officers will become harder. But the optimist who says that you should surely want to have your beliefs challenged in open argument, and the pessimist, who says that you would not like to live in a Britain where the police monitor speech, still agree that the hard road is the only road.