Stand up if you hate this law

For a while, I was an avid fan of south London’s finest Charlton Athletic. It was in the course of the two seasons that I closely followed these perennial middle achievers that I became aware of a certain group in society so obnoxious, so vile, so repellent to ordinary standards of decency that the very sight of them was enough to fill me with rage. Every football fan will know who I am talking about: away fans.

Never before have I been so imbued with temporary prejudice than when faced with that gangly mob at the other end of the stadium. They usually make far more noise than home fans, and always look as though they are having a better time. What scum! For 90 minutes, they were the enemy. And the language that emerged from my own, middle-class, frequently fragrantly balmed lips; well it weren’t pretty.

Of course, I am sure all away fans are nice people. On the right day, I could have been one myself. But a football game is a great excuse to do away with all those normal social standards you uphold in everyday life and to shout ludicrous insults at people you don’t know. There has always been a common understanding that at the football, normal rules don’t apply. You can even swear in front of kids.

It’s a shame the Scottish government doesn’t see it that way. Yesterday, at Glasgow Sheriff’s Court, Hibs fans Andrew Whitson and Paul Swan became the first people convicted under the Offensive Behaviour at Football and Threatening Communication (Scotland) Act 2012. They admitted singing songs of a ‘racially derogative nature’ while travelling home from the quarter-final of the Scottish Cup against Ayr. Pleading guilty, they were fined £180 and £200. Although Hibs won two nil, ‘they’re not singing anymore’.

The act became law in Scotland earlier this year, having been rushed through the Scottish parliament at the tail-end of 2011. It introduces two new criminal offences to the statute book: offensive behaviour and threatening communications. Although the title of the act hints at its limitations, it is clear that the act does not only apply to behaviour ‘at football’. The act applies at matches, anywhere broadcasting matches, the areas around matches and, as Andrew Whitson and Paul Swan found out the hard way, to people on their way to and from matches.

The Scottish authorities have been quite explicit in their desire to use the act to ‘send a message’ to people who use offensive language in relation to football. Chief superintendent Ellie Bird said the convictions send a ‘clear message that this sort of behavior and criminality has no place in society’. The government website says the act is aimed at ‘bigots’ who ‘promote sectarianism’. It is clear that this act is not directed at specific words or acts, but at regulating a whole class of people seen by the authorities to be troubling to society.

This makes it a dangerous piece of legislation. The act is an obvious affront to freedom of speech. It is worth remembering the words of John Stuart Mill, who argued that free speech means nothing unless it protects all speech, ‘however immoral it is considered’. As Kevin Rooney has pointed out on spiked before, behind the regulation of speech is the assumption that people are not robust enough to hear offensive or derogatory language, and that we are unable to ignore it or challenge it head on. We should stand up for our right to hear whatever anyone has to say, no matter how hateful, and to make our own judgment about how to deal with it.

But it is also worth noting what the case says about the role of the law in society today. Note Ellie Bird’s distinction between this ‘sort of behavior and criminality’ (my emphasis). This distinction illustrates perfectly how the law is being used to regulate acts perceived to ‘lead’ to other criminal offences. Take, for example, the recent announcement that ‘stalking’ would be introduced as a criminal offence on the basis that it leads to other offences like rape and murder. Today, the idea that people are effectively automatons, who act unreasonably on the words they hear, and whose behaviour follows a clear causal line between ‘this sort of behavior’ and ‘criminality’, is being used to justify the creeping regulation of speech both on and off the terraces.

I think more members of our political class should actually go to some football grounds, and experience the utter hatred and comical opprobrium that away fans inspire. Then they might also find out that while these irrational feelings can be expressed in quite colourful language in the course of the 90 minutes, only very rarely does ‘this sort of behaviour’ lead to anything other than mildly embarrassed memories in the minds of the same fans. That said, I can’t resist a sign-off to any Crystal Palace fans out there: believe me, I meant every word.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.