Maybe Britain needs a First Amendment, too

How did we reach a situation where newspaper columnists can be investigated by the cops for being offensive?

Last week it emerged that the Metropolitan Police are investigating the Spectator magazine following complaints from a Muslim group about comments made on a blog entry on its website by the Daily Mail journalist Melanie Phillips. Writing about the massacre, in the West Bank, of a three-month-old Jewish girl, her two brothers and her parents as they slept in their beds, Phillips referred to the murderers as ‘savages’ and to the ‘moral depravity of the Arabs’.

Phillips is not generally noted for even-handedness when it comes to writing about the Middle East. She is often polemical, some might even say tendentious, in her support of Israel. She is certainly not everyone’s cup of tea, and perhaps you would include yourself in that. Perhaps you feel that she comes too close to smearing all Arabs. Perhaps you even think hers are the sort of views that should be investigated by the police. But then again, perhaps you don’t read her blogs and form your views of the rights and wrongs of faraway bloodshed from other sources. Perhaps you wonder what all the fuss is about.

There are echoes here of the case of another Daily Mail journalist, Jan Moir, who in 2009 upset a lot of people by appearing to attribute the death of the singer Stephen Gately to his lifestyle. Gately was gay. The Crown Prosecution Service eventually decided, about a year ago, not to prosecute Moir, but the whole episode conjured up bizarre images of crown officials poring over words and phrases in a newspaper opinion column for evidence of illegality.

And then there was the case, less well-publicised, involving Douglas Murray, another journalist. He was investigated by the Press Complaints Commission and the police merely for suggesting that the prosecution of an English councillor for telling a joke about an Irishman being a bit dim was ludicrous. And last year, too, a Liberal Democrat councillor was convicted under the 2006 Public Order Act for using ‘threatening, abusive or insulting words, with intent to cause harassment, alarm or distress’. Shirley Brown, who is black, had called a female Asian councillor, Jay Jethwa, a ‘coconut’, a colloquial term used to denote a person who is ‘brown on the outside and white on the inside’ - someone who has, in other words, betrayed his or her cultural roots by pandering to ‘white’ opinion.

But it’s not merely in print and in the debating chamber that solecisms can have repercussions: cyberspace also has its victims. Think of Paul Chambers, who was fined £3,000 and lost his job for tweeting, in jest, words to the effect that he would blow up an airport if its closure due to bad weather disrupted his travel plans. Or of Gareth Compton, the Tory councillor who was arrested in November when – after hearing the Independent’s Yasmin Alibhai-Brown argue on a radio programme that the West had no moral authority to condemn the practice of stoning women in the Muslim world – he asked his Twitter followers ‘Can someone please stone [her] to death?’, adding ‘I shan’t tell Amnesty if you don’t. It would be a blessing, really.’

That some users of social media are discovering, to their detriment, that the online environment does not in fact mirror the domain of the private conversation down the pub was perhaps inevitable. But then, as the Sky Sports commentators Andy Gray and Richard Keys – who lost their jobs for making off-colour remarks when they thought they were not being recorded - recently found out, even private conversation is no longer safe from censure.

What is going on? How did we arrive at a situation where giving offence is automatically sackable or worse? Surely the freedom to disagree with a comment or to ignore it is enough. When it is suggested that certain points of view or ways of expressing them might be or should be illegal – or that intolerance should not be tolerated, to purloin the common malapropism – a notion that should chill anyone who holds the principles of liberal democracy dear is given life: the notion of thought crime. Freedom of speech was hard-won in the West; the freedom only to speak inoffensively is no freedom at all.

If UK prime minister David Cameron seemed to grasp this when he spoke of the merits of ‘muscular liberalism’ earlier this year, it is a pity that his government’s Protection of Freedoms Bill – an Act which has been making its way through parliament since last summer and which it is intended will extend freedom of information, turn back the tide of state intrusion into our lives and repeal unnecessary criminal laws – makes no attempt to return free speech to its rightful place at the altar of democracy.

The Lib-Con coalition government may well be less authoritarian than the Labour one that preceded it, but in a way we are still suffering the hangover from New Labour and the ideals it pressed into service when it ditched socialism: diversity, equality, respect. Among the 4,300 new offences put into statute under Labour were those governing ‘hate speech’, or the giving and taking of offence. First came legislation on racial and religious hatred; later, protection was extended to gay, transgender and disabled people. Doubtless heightened sensitivity about Islam in the wake of 9/11 played its part: the Religious Hatred Act of 2006, for instance, extended outdated blasphemy laws to afford people of all faiths, including Jedis, recourse against things they don’t like hearing said or seeing written.

One of the results has been a new culture of fastidious censoriousness in every public body, human-resource department and media organisation in the land. Furthermore, the giving of offence need not be intentional, nor the words (or cartoons) themselves possessed of the propensity to give it in order for it to be taken. Never mind the freedom to speak offensively: people have been invited to believe there is such a thing as the right not to be offended. Never mind that ‘incitement to hatred’ is a grey, disputable thing, and a different thing to incitement to violence, which was already a criminal offence. Never mind that most ideas are capable of giving offence, and that Socrates, Galileo and Darwin were all considered beyond the pale in their time. And never mind that in the marketplace of ideas, ‘hate speech’ can be challenged, debated or ignored. What we now have is moderated free speech at best.

That distinction between incitement to hatred and incitement to violence is a crucial one for Peter Tatchell, one of this country’s most tireless and principled human rights campaigners. When I spoke to him last year he had recently been in the news for defending the rights of Christian preachers hounded by the law over homophobic hate-speech crimes. One American Baptist evangelist, Shawn Holes, was fined £1,000 for telling shoppers in Glasgow city centre that homosexuals were bound for hell; Tatchell, who is gay himself and renowned for his campaigning on behalf of gay rights, called it ‘an attack on free speech and a heavy-handed, excessive response to homophobia’.

He had also spoken up for the five Islamists convicted of showering abuse at British soldiers at a ‘homecoming’ march in Luton, but had elsewhere called for sanctions on extremists who incite violence – including Abu Usamah, who was shown in a Channel 4 undercover documentary advocating the killing of gays and Muslims who leave their faith. But there was no contradiction, he insisted. ‘If someone says “I want to encourage people to plant bombs in Princes Street in Edinburgh”, then that’s pretty clear incitement to violence’, he told me. ‘Saying “I sympathise with al-Qaeda” is not, on the other hand.’

While that view may not be likely to find favour with mainstream political opinion, muscular liberal or otherwise, it makes sense from a First Amendment perspective, if you’re talking American. Britain doesn’t have a First Amendment, of course, but it did produce John Stuart Mill, who wrote in 1859 that ‘there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered’. The limits of such liberty should be defined by the ‘harm principle’, he said, not by social offence. In other words, dealing with offence is part of being a grown-up in a grown-up society.

Liberals nowadays seem to have lost the stomach for such principles, however. The word ‘liberal’ itself has come to denote a much narrower set of ideas: vaguely leftish, environmentalist, irreproachably PC, pro-European, pro-Palestine, pro-Yasmin Alibhai-Brown. Technology, meanwhile, may have helped to create a more informed and engaged citizenry, but it has also given a leg up to the power of mob rule. Online forums and message boards foster a culture of outrage, indignation and recrimination; they manufacture and mobilise offence.

The Lib-Cons’ Protection of Freedoms Act will flush away ID cards, biometric passports and the ContactPoint database of children in England. It includes provisions to restrict and regulate the use of surveillance powers, CCTV and the storage of internet and email records and it will restore rights to freedom of assembly, non-violent protest and trial by jury. It may prove to be a watershed moment for liberty in Britain. It could have been a much greater one. It is time to weigh again the value, as opposed to the price, of free speech.

Kenny Hodgart is a freelance journalist currently based in Scotland. Visit his website here.

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