The freedom to talk hate
Abdullah el-Faisal may be a crank - but is he a criminal?
On 7 March 2003, Muslim cleric Abdullah el-Faisal was jailed for nine years for stirring up racial hatred and for soliciting the murder of Jews, Hindus and other ‘non-believers’ – and the judge recommended that el-Faisal be deported to his native Jamaica on his release.
El-Faisal’s speeches, which he recorded and put on sale, were without doubt full of religious hatred. He said Jews were ‘rotten to the core’, he claimed Hindus could be killed and robbed, and he told his listeners that anyone who killed an unbeliever ‘would go to paradise’.
The intensity of el-Faisal’s hatred was matched by its lack of sophistication. He saw the world in simple terms: ‘There are two religions in the world today – the right one and the wrong one. Islam versus the rest of the world.’ He likened those from ‘the rest of the world’ to cockroaches, and claimed that ‘martyrs would go to paradise to be greeted by 72 virgins’ (1). In short, el-Faisal was a crank whose statements were fatuous in the extreme.
For a few years the authorities ignored el-Faisal. According to one report, he had been delivering his addresses since 1998 to audiences around the UK, from big cities like London and Manchester to smaller places like Tipton and Maidenhead (2). El-Faisal boasted of having preached in 30 countries.
Apparently, up to 500 people attended el-Faisal’s 90-minute-long speeches, although it is not known how many of his recordings were sold from ‘specialist bookshops’. So there was nothing clandestine about el-Faisal’s activities, and the authorities could have arrested him at any stage over the past five years.
That el-Faisal was not arrested until February 2002 was probably because a robust view of his activities initially prevailed. But in February 2002, The Times (London) denounced el-Faisal as ‘Britain’s sheikh of race hate’ on its front page (3). Shortly afterwards, an MP called on home secretary David Blunkett to arrest a number of named Islamic militants, including el-Faisal (4), and within two weeks he was arrested.
Speaking after the conviction, deputy assistant commissioner Peter Clarke, head of the anti-terrorist squad, said: ‘This case was nothing to do with freedom of speech, but everything to do with racial hatred and religious bigotry, and encouraging people to commit acts of terrorism.’ In other words, freedom of speech is limited; it does not embrace the right to spread hatred and bigotry or to encourage terrorism.
But if speech that is full of hatred and bigotry may be curtailed, then why not also curtail any speech that some or even most would consider to be offensive? The problem with this argument is that once freedom of speech is limited on the grounds that it is offensive, one can easily end up with a right that is worth little in practice. As Lord Justice Sedley observed in a recent case, ‘Freedom only to speak inoffensively is not worth having’ (5).
There can be legitimate reasons for curtailing freedom of speech. Consider, for example: the man who points a gun at his victim and says, ‘if you come here again I’ll kill you’; or the man who phones the police with a bomb hoax. These situations are outlawed by the criminal law, respectively, by the offences of threats to kill (contrary to section 16 of the Offences against the Person Act 1861) and bomb hoaxes (section 51 of the Criminal Law Act 1977).
But the basis for outlawing speech of this nature is not because it is offensive. In both cases the speech is outlawed because it seeks to overcome the autonomy of the listener. In the case of threats to kill, the speech is merely incidental to an attempt to coerce the victim to act in a certain way. And it is the coercive nature of the speech, that is invariably accompanied with threatening conduct, that renders the speech criminal.
In the case of bomb hoaxes, the police may have little choice but to treat the bomb warning as genuine. The very nature of the speech gives the listener (the police) little opportunity to reflect and choose before acting on the speech.
More colloquial examples often given by those who doubt the wisdom of free speech include the person who shouts ‘the path ahead is clear’ to a blind man approaching a cliff face, or who shouts ‘fire’ in a crowded theatre. But far from undermining the right of free speech, these examples illustrate the limited basis on which free speech may be outlawed. Free speech should be an absolute right, so long as the speech does not overcome the ability of the listener to respond by thinking and acting for himself.
At the Old Bailey in February 2003, the Crown claimed that the prosecution of el-Faisal was necessary because he was someone whose words were taken seriously, and so his words threatened the safety of others (6). The prosecution and police were particularly concerned at the affect el-Faisal’s sermons could have on ‘impressionable young Muslims’.
Some of el-Faisal’s audience may have been impressed with some of his prescriptions. Deputy assistant commissioner Peter Clarke, head of the Metropolitan Police anti-terrorist branch, claimed to have ‘very good grounds for believing that some people actually did go abroad as a result of listening to him’ (7). But in so far as this happened, would this not be the responsibility of the listener rather than the speaker? The speaker may have suggested, urged or exhorted his listeners to do evil things, but he did not coerce, induce or force them to do so.
The charges that resulted in el-Faisal’s nine-year prison sentence do not stem from anything that he said or did to undermine the moral autonomy of his listeners. El-Faisal did not coerce them to act in a particular way and neither did he deny them the opportunity to think and reflect before choosing how to act. El-Faisal was speaking to an audience of moral agents who were free to either reject his ideas or follow them. Either way, it was their choice.
In recent years, society’s attachment to free speech has weakened. Nowadays it is often argued that freedom of speech does not extend to the right to be offensive, bigoted or racist. But the argument for freedom of speech remains as strong today as ever.
Speech should be free so long as the listener is able to exercise his own judgment. Racists, bigots and cranks should be free to say what they like because society is composed of people who have the ability to make up their own minds. El-Faisal’s conviction for the offensive nature of his speeches should be of concern to all who see that freedom of speech is a right built upon the moral autonomy of humanity.
Jon Holbrook is a barrister (email Jon.Holbrook@btinternet.com). He contributed the essay ‘Humanitarian intervention and the recasting of international law’ to the book Rethinking Human Rights: Critical Approaches to International Politics, Palgrave, 2003. Buy this book from Amazon UK.
spiked-issue: Free speech
(1) Salvation Army boy who converted to campaign of hate, Guardian, 25 February 2003
(2) ‘Bloodcurdling brand of hatred taken on tour of Britain’, The Times, 25 February 2003
(3) The Times, 4 February 2002
(4) Labour MP demands arrest of “anti-Semitic” Muslims, Daily Telegraph, 5 February 2002
(5) See Redmond-Bate v DPP, 23 July 1999, QBD, The Times, law report, 28 July 1999
(6) Hate charge cleric no ‘harmless crank’ , BBC News, 14 February 2003
(7) Cleric who poisoned the young drip by drip, Daily Telegraph, 25 February 2003
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