Free speech requires a leap of faith: a belief that even if bad speech does harm, the good done by allowing people to say what they think clearly outweighs it. You either have that faith or you do not. Unfortunately it seems that the Law Commission does not, at least if a recent document it brought out on hate crime and hate speech is anything to go by.
In England, laws governing hate speech – which make it criminal to say offensive things to particular groups – are fairly limited in scope. You must not say or publish anything threatening, abusive or insulting which is aimed at stirring up racial hatred, or which is likely to do so; and you must not say or publish anything threatening with the intent of fomenting hatred based on religion or sexual orientation. That is it. Apart from a few provisions about causing alarm or distress to people in general, and a notorious law – section 127 of the Communications Act 2003 – making it a crime to post anything grossly offensive on the internet. But keep away from these and, broadly speaking, you can say what you like in Britain.
But is the Law Commission troubled by the existence of this degree of freedom? Its 530-page consultation paper is replete with references to hate crime reported to police and the awful effects of insults on members of marginalised and oppressed groups. Having turned to a detailed listing of the limits which the European Convention on Human Rights allows states to place on free speech (unfortunately a rather long list), its preliminary prescription is drearily predictable. The problem is the lack of proper controls on hurtful speech. The solution? An enormous extension of what we are not allowed to say about each other. If you have followed the difficulties surrounding the Scottish hate crime bill, all this will be depressingly familiar.
First, chapter 18 of the report suggests trans people, asexuals, non-binary people and women could be added to the list of disadvantaged groups people are not allowed to insult. The latter apparently come in, not because of widespread hatred for women on account of their sex (which is vanishingly rare) but because of what is referred to as ‘gendered online harassment’, and an apparent epidemic of misogyny expressed by incels (since you asked, an incel is a bitter and involuntarily celibate man). The need for extension does not even necessarily stop there. There is, the Commission suggests in chapter 14, a case for going further and including such groups as humanists, sex workers and members of ‘alternative subcultures’ such as goths. The mind boggles.
Secondly, the current need (except in cases of race) to show an intention to stir up hatred in order to convict a person of hate speech (rather then a mere tendency of his words to do so) is brushed aside as a tiresome restriction that, in the Commission’s words, would place an ‘undue burden’ on prosecutors. If the Commission has its way, the result would be that a tweet or blog entry innocently intended could land the person making it in court on a criminal charge (and a serious one: the stirring-up of hate offence currently carries a maximum sentence of seven years in prison) if a court later decided that it was likely to incite hatred of, say, transgender people and the accused ought to have realised this fact.
These two worrying points aside, there are other remarkable features of the document.
Radio stations should have to vet every programme they buy in case it contains inflammatory material; if they don’t and it does, then they too should be guilty of a crime.
The present law takes the understandable position that the criminal law should not prevent you boring your family with your views, or barge into pillow-talk or dinner-table badinage; this means that hate speech offences do not apply to things done within someone’s house. The Commission has no time for petty protections of this sort; it solemnly suggests that if you aren’t allowed to incite someone to commit crimes merely because you do so in the confines of your own home, you shouldn’t be allowed to say bad things there either. So there.
It is depressing that the Law Commission appears to take the dismal view that free speech is problematic and the European Convention on Human Rights’ protection of it a necessary limit on people’s freedom to say what they want, rather than a minimum to be exceeded. But this is the kind of view that we have come to expect from the Commission, a congeries made up of earnest law professors.
However, there is one ray of light; this report is a consultation paper. Not only can you say what you think of it, but the Law Commission actually wants to know. Spectator readers who value freedom of speech might well care to take up their invitation.
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