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A Campaign Against De Facto Hate Speech Laws - Part 1

by Chauncey Tinker – 19 Feb 2020

Voltaire

Now that we have finally left the European Union, many people are turning their attention to the subject of freedom of speech. The Freedom Association is one organization that plans to campaign for greater freedom of speech, and Spectator columnist Toby Young’s newly created Free Speech Union is another. As one of the key aims of the Participator is to campaign to restore a “meaningful degree of freedom of speech” in the UK, we aim to play our part in this movement. In this new series I will be looking at particular cases to illustrate how problematic the UK laws that limit our freedom of speech have become.

Over a year ago, Lord Pearson (a member of The Freedom Association) challenged the government in the House of Lords on the subject of freedom to criticize religions:

Over a year ago I asked the government whether a Christian who proclaims that Jesus is the only Son of the one true God can be arrested for hate speech if a Muslim feels insulted and complains to the police. They refused to answer. https://t.co/FcQeKn6k8P

— Lord Pearson of Rannoch (@LordPearson) February 12, 2020

The government minister responded by saying:

There is no criminal offence in the UK of “hate speech”.

This was a disingenuous response because although it may be technically true that we don’t have a specific “hate speech” law, the reality is that the law has become extremely convoluted with respect to speech, and merely “grossly offensive” speech is criminalized in the Communications Act of 2003, and so I would argue instead that we now have DE FACTO hate speech laws. Safeguards that were designed to protect freedom of expression have provided some protection (for example Section 29j which is mentioned in the above exchange is supposed to protect our freedom to criticize religions), but even such safeguards have added to the complexity of the law, and the confusion is such that in some individual cases the safeguards have been overlooked.

Take for example this widely publicized case where a Christian preacher was arrested and moved to another area. From CBN News:

Christian Street Preacher Wins Wrongful Arrest Payout After Being Arrested for ‘Islamophobia’

Such an arrest may have later been deemed to be a “wrongful arrest” in a court of law, and in this case a payout may have been made, but the fear of arrest will remain as a deterrent for many. Quotes from a police spokesman:

“As the man indicated that he wished to continue his activities at Southgate tube station, officers felt it necessary to take the man some distance from the station in order to prevent a breach of the peace at that location,”

“The Met respects and upholds the rights of all individuals to practise freedom of speech, and this includes street preachers of all religions and backgrounds. However, if the language someone uses is perceived as being a potential hate crime, it is only right that we investigate. In this case, it was deemed appropriate to remove the man from the area,”

A recent court case, where former policeman Harry Miller won a historic victory, has helped to draw our attention to the logging of “hate incidents” by the police. While the authorities in some statements make a point of stressing that a “hate incident” does not necessarily constitute a “hate crime”, Harry Miller revealed that the logging of such incidents is likely to cause difficulties for the accused when they are seeking employment, as the “incident” will show up in employment checks. Thus, even though no crime may have been committed, and no judge or jury has made a decision in such “incidents”, the actions of the authorities are likely to create serious difficulties for those so accused. I have mentioned cases before where the prosecution has acted as a punishment, but in these incidents there doesn’t even need to be a prosecution for the accused to be effectively punished. This is therefore another sense in which we have a DE FACTO crime of hate speech in the UK today.

The law is now so convoluted with respect to speech that even those who write the police guidelines are confused, and we have seen divergence between what the law states in comparison to those guidelines. Consider this page at the Metropolitan Police website:

What is hate crime?

Quote (as of time of writing 19 February 2020):

A hate crime is when someone commits a crime against you because of your disability, gender identity, race, sexual orientation, religion, or any other perceived difference.

It doesn’t always include physical violence. Someone using offensive language towards you or harassing you because of who you are, or who they think you are, is also a crime. The same goes for someone posting abusive or offensive messages about you online.

However the law actually states that merely insulting words DO NOT constitute a criminal act; thanks to an amendment by the Lords in 2013 the Public Order Act was amended to remove the word “insulting”. The word “insulting” can I think be considered synonymous with the word “offensive” in this context (both words are also very subjective). From the UK government:

Public Order Act 1986

The amendment was added as part of the Crime and Courts Act 2013:

Crime and Courts Act 2013

Quote:

57 Public order offences

(1) The Public Order Act 1986 is amended as follows.

(2) In section 5(1) (harassment, alarm or distress) for “, abusive or insulting” in the two places where it occurs substitute “ or abusive ”.

(3) In section 6(4) (mental element: miscellaneous) for “, abusive or insulting” in the two places where it occurs substitute “ or abusive ”.

We might further debate whether the remaining word “abusive” (which is still part of the act) is also subjective, but the word “abusive” does at least seem to imply something specific targeted at the “victim”, rather than something that the “victim” is merely “offended” by. The Merriam Webster definition of the word “abusive” uses the phrase “harsh, insulting language” so indeed there may be a need for further reform in this act to remove the word “abusive”:

Definition of abusive

CONCLUSION

The combination of convoluted laws restricting speech (with vague and subjective limits) in tandem with over-zealous policing, and failure by the police to properly understand even what the current law states, has led us to a situation where we have DE FACTO hate speech laws in the UK today. I propose that we should campaign for substantial reform to simplify the laws that restrict our speech. I will make specific proposals about specific laws in subsequent posts in this series.

ELSEWHERE ON THE WEB:

The Harry Miller case judgement:

Neutral Citation Number: [2020] EWHC 225 (Admin) Case No: CO/2507/2019 IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONADMINISTRATIVE COURT

From The Freedom Association:

The Law Commission to undertake a review of the legislation related to hate crime

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