Hate speech: blasphemy for the 21st century

We must never give the state the power to criminalise speech.

Emma Webb

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With most of us restless and under indefinite house arrest, it’s easy to feel like the state is swallowing everything up. But with our eyes set on this new threat to our liberty, something more insidious is underway in Scotland.

Threats to free speech are like the mythical hydra – you chop off one head and two seem to emerge in its place. This is exactly what is happening with the new Hate Crime and Public Order (Scotland) Bill, which has slipped into national discourse with undeserved anonymity.

On the surface, it might look like a positive development. The bill does away with Scotland’s outdated blasphemy law, which hasn’t led to a prosecution in more than 175 years. In 1843, bookseller Thomas Paterson was sentenced to 15 months for ‘exhibiting profane placards in his window, to the annoyance of the neighbourhood and the public’. The Scottish government is certainly right to ditch it – this archaic law is unusable, and unsavoury in a free society.

But what the bill replaces it with is worse, not least because it is certainly likely to result in prosecutions. Its proposed restrictions on ‘stirring up hatred’ could lead to people being jailed for seven years. This is essentially a blasphemy law for the 21st century, and it poses a grave and terrifying threat to freedom of speech.

‘Offences of stirring up hatred’ in the bill include behaving in a threatening, abusive or insulting manner, or sending material of this kind to another person. Whether you intend to stir up hatred is irrelevant. The categories of people it seeks to ‘protect’ cover race, age, disability, religion, social or cultural group, perceived religious affiliation, sexual orientation, transgender identity and variations in sex characteristics.

An offence could include any kind of behaviour – what you say, communicate, or how you act. Rather like poor Thomas Paterson, people would be criminalised for ‘displaying, publishing or distributing the material’ or ‘giving, sending, showing or playing the material to another person’. Simply ‘making the material available’ is enough.

Possessing ‘inflammatory material’ would also become an offence. Section 6 even allows for powers to be granted to the police to enter and search a property if they believe an offence was committed, to seize and detain material or any person if there are reasonable grounds it would provide evidence. Section 8 allows the court to order the forfeiture and disposal of any material relating to the offence.

It goes further still. The bill includes the explicit possibility of the director and performer of plays being prosecuted. You don’t have to be a radical libertarian to feel a chill run down your spine.

What is not made clear is what would count under this bill as abusive or insulting speech, and who gets to decide. The National Secular Society’s Chris Sloggett argues that the offence is too vague and accusations of this kind are ‘10 a penny’ on social media. Sloggett says the bill ‘sends a confusing message about the reach of criminal law. It isn’t a crime to hate, so why should it be a crime to encourage others to hate?’ The fact is, this hands far too much power to the state and is bound to go wrong.

The effect of this will be to make everyone feel unsafe – unsafe to think, to speak, to discuss, to share ideas. The Scottish minister behind the bill, Humza Yousaf, says ‘we all have a responsibility to challenge prejudice in order to ensure Scotland is the inclusive and respectful society we want it to be’. But what he is doing is giving law the job that manners and argument used to do.

Yousaf says that the ‘stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal’. But there are limits to what criminal law can safely aim to accomplish. In imagining a Scotland without hatred, he is inadvertently laying out something quite terrifying. The inevitable consequence of this legislation would be what Orwell called ‘crimestop’ – ‘the faculty of stopping short, as though by instinct, at the threshold of a dangerous thought’.

This is not a matter for the state. You can’t change hearts and minds with legislation, and respect enforced by the state is barely worth having. As Sloggett puts it, ‘disempowering ordinary people by restricting their freedom of expression is likely to antagonise, rather than create, social harmony’.

The bill’s reassurance (in Section 11) that freedom of expression would be protected in relation to religion is also unconvincing. It says that behaviour or material discussing or criticising religion, practices or beliefs, proselytising or urging people to stop practicing their religion, would be protected. But this compares poorly with Section 29J of the Public Order Act 1986, which more specifically protects discussion, criticism, expressions of antipathy, dislike, ridicule, insult and abuse of religions, beliefs and practices.

We know from experience that journalists, comedians, artists, activists and ordinary people are at the mercy of such vague and elastic notions as ‘stirring up hatred’. Take criticism or ridicule of religion. In discussions about Islamophobia it is not uncommon for someone to be accused of anti-Muslim bigotry for merely criticising certain beliefs and practices.

To quote the All-Party Parliamentary Group on British Muslim’s report on Islamophobia, ‘recourse to the notion of free speech and a supposed right to criticise Islam results in nothing more than another subtle form of anti-Muslim racism, whereby criticism humiliates, marginalises and stigmatises Muslims’. The same thing happens in the trans debate, where those who believe something as mundane as there only being two genders are accused of transphobia.

In short, the instinct behind this bill is ugly and misguided. In a free society, the state cannot be allowed to decide what we can say, think, read or share with each other. For all its supposed good intentions, this bill is taking us further down a dangerous road.

Emma Webb is director of the Forum on Integration, Democracy and Extremism (FIDE), a project of Civitas. She is the editor of Islamophobia: An Anthology of Concerns.

Picture by: Getty.

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Comments

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Aye Mac

16th May 2020 at 12:13 am

“stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal’

The Scottish Nose Pickers have been successfully pursuing that policy for decades (plagiarised from the Nazis, no less)… but, of course, hatred of ‘The English’ is acceptable (or has become, at least)

Jonathan Marshall

15th May 2020 at 5:47 pm

“The effect of this will be to make everyone feel unsafe – unsafe to think, to speak, to discuss, to share ideas.”
Absolutely right – and the most chilling words I have read for some time.
Scotland is rapidly becoming a Caledonian North Korea.

KATHLEEN CARR

15th May 2020 at 4:57 pm

I would imagine Humza Yousaf practices a religion that doesn’t fret about such trivialities as human rights , free speech, innocent until proved guilty and all those little nothings Britain used to have. Under the guise of inclusivity and tolerance a new sort of lawless law is being enacted-if we want to find you guilty we will think of something-ask a person whose initials are T. R.

Mark Lambert

15th May 2020 at 10:54 am

There is nothing anyone can write in a definition that can protect anyone from the wrath of Islam. This is shown in the APPG definition of “Islamophobia”, where it is lovingly stated that “Criticism of religion is enshrined in our freedoms” and “No religion is above criticism”. Great. But it then goes on to list “tests” to determine if something said in discussion is “Islamophobic”, which given the evidence of years, this option will be used and leaned upon heavily to declare all sorts of things as such.

As pointed out in the article, this law and its sub-sections also does just that. It’s as if there is a tactic at play………

How many discussions have I heard between a non-Muslim and an Imam, where the non-Muslim might say, “Mohammed was a warlord and a conqueror” and the imam gets angry and says, “No, he was a liberator and a benefactor”.
In this example, I can heavily bet that the non-Muslim may well be accused of “Islamophobia” or “hate” and then who decides? Do judges have to rush away and read up on Mohammed and decide for themselves? Or do we make it quicker and have a sharia court of imams who make the decision on various natures of Mohammed?

I have come to the point where I can’t even believe I have to consider this.

Stephen J

15th May 2020 at 9:17 am

I suppose that the judicial remit of this bill does not extend to the various governments, surely the most hateful assemblages of all time.

Not only do they hate the people that they pretend to govern, they point a gun at our heads and simultaneously cut our purses for their own personal gratification.

They aren’t interested in what our fertile brains and clever hands can create, unless there is something (money) in it for themselves.

Hate begins and ends in the corridors of power, the rest is merely opinion, since it cannot affect anyone in reality, unless hurt feelings are equal to physical harm.

NEIL DATSON

15th May 2020 at 7:11 am

‘Possessing ‘inflammatory material’ would also become an offence.’ Does that mean that the Old Bill could come round and feel someone’s collar for possessing a copy of Mein Kampf?

I presume that the courts would decide what actually constitutes ‘inflammatory material’, according to the tastes and fashions of the age. I’ve never read it, but I’ve been led to believe that the Koran contains some pretty strong stuff about unbelievers. I suppose some could argue that there are passages in the Bible that go a bit far.

Seems like it’s time for a good clear out of Scottish university libraries. A bonfire is a quick and easy way to dispose of dangerous books. Better to be safe than sorry.

Ed Turnbull

15th May 2020 at 7:44 am

Neil, allow me to clarify: possession of Mein Kampf, the Gospels or the Torah will certainly result in prosecution. Possession of the koran, hadiths, or any other islamic scripture will not, because…well, brown people.

Also guaranteed to land you in chokey will be possession of any political party’s manifesto other than the SNP’s; any book written by Douglas Murray, Dave Rubin, Thomas Sowell, Winston Churchill, etc. And I expect simply reading this website to be criminalised too.

I’m uncertain whether this proposed bill, is virtue-signalling dialled up to 11, and thus into realm of utter absurdity. Or if it’s a genuine attempt to criminalise all the concocted ‘phobias’ that’ve appeared in the last 15 or so years. We already have legislation that addresses incitement to criminal *action*, but this piece of nonsense aims to criminalise incitement to *emotion*, to *thought*. Not action, but thought. That is truly terrifying. Maybe time to move south of the border while I still can.

Linda Payne

15th May 2020 at 6:54 am

The NHS mental health system has been stirring up hatred for years by labelling ill people with ‘personality disorders’ doubt if they will be taken to task for this. You only have to look at on line posts from some of these ‘professionals’ and others to see how ingrained and widespread this is with insults and misinformation given free rein.

Dominic Straiton

15th May 2020 at 6:23 am

Hate, like love is a perfectly normal emotion. In fact you cannot have one without the other. I hate plenty of things.Marmite, socialism, Ed Sheeran. Id happily dance on the graves of Miriam Margoyles and Owen Jones. I detest lslam and everything about Mohamed. I even hate those who follow him and those who refuse to release the report into jihadi rape gangs. There is nothing wrong with any of that and the government has no chance of changing my mind or shutting me up. Im certain there are plenty of people who hate me and everything I love (this country, the British empire, Tommy Cooper, chorizo, the free markets) and I could not give a crap. In fact I just dont understand why anyone in a free society gives a crap what anyone else thinks about anything including holocaust denial, the Klu KLux KLan or communism. Lets bin all “hate” laws.

Highland Fleet Lute

15th May 2020 at 6:09 am

“Offences of stirring up hatred’ in the bill include behaving in a threatening, abusive or insulting manner, or sending material of this kind to another person.”

I take it that referring to the first minister as “Wee Jimmy Krankie” is included in that lot.

Gordon Y Gopher

15th May 2020 at 1:45 am

I wonder what other phobias are illegal? My dog is scared of balloons and bicycles. Should I be concerned? Should I report him? I love that dog, he’s so cute, and his little scared face when a bike goes past makes him even cuter. But if phobias are now illegal I think I might have to get the police involved. I’m sure they’ve got nothing better to do.

Imagine if he saw a Muslim on a bike carrying a balloon. How the hell would I explain that one away?

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