Why we must be free to hate

JK Rowling has rightly been cheered (and inevitably, abused) for her bold public stand against the Scottish government’s detestable new Hate Crime and Public Order (Scotland) Act, which came into force this week. The Harry Potter author has challenged Police Scotland to arrest her under the act for ‘misgendering’ several trans sex offenders on X / Twitter. Bravo to Jo.

Many people support Rowling’s right to speak out against trans ideology because they agree with her about the threat it poses to women’s rights. They want her to be able to say that there are only two biological sexes, since they know that she is speaking the truth. And they are right to do so. Otherwise, we risk allowing cancel-culture warriors to get away with what George Orwell called Big Brother’s ‘final, most essential command’ – telling you ‘to reject the evidence of your eyes and ears’.

But here’s the thing. We should still defend free speech for JK Rowling or anybody else, even if we disagreed with everything they say – and indeed, even if we thought they really were transphobic liars motivated by hate. Freedom is always for ‘the other man’, the one we disagree with. If we only demanded freedom of speech for those who agree with us, we would be as bad as the other side. Free speech is an indivisible liberty. We defend it for all – yes, even for those freedomphobic bigots in the trans-activist camp – or for none at all.

That is why hate-speech laws, which seek to impose and police a line between reasonable and unreasonable words, should be opposed by anybody who believes in freedom and democracy. If we are talking about thought and speech rather than violent actions, then the government, judges and cops should have no more business telling us who or what we can hate than they would have dictating who or what we are allowed to love.

The Scottish National Party’s Hate Crime Act is a particularly grievous assault on free speech dressed up as a defence of tolerance. It creates the offence of using ‘threatening or abusive’ language with the intention of ‘stirring up hatred’ against anybody because of their age, religion, sexual orientation or transgender identity. Those convicted could face up to seven years in prison.

The law also includes the crime of stirring up hatred based on race, colour, nationality or ethnicity. This is already illegal under the UK-wide Public Order Act, but is now incorporated into Scotland’s specific hate-crime law. The bar for this offence is lower, since on top of ‘threatening or abusive’ it also criminalises words or behaviour that are deemed ‘insulting’, and the prosecution need only prove that stirring up race hatred was ‘likely’ rather than ‘intended’.

Worse still, the Hate Crime Act even removes the traditional ‘dwelling defence’ for speech offences. From now on, Scots could be arrested and prosecuted for what they say in the privacy of their own homes, whether shouting at the television or cracking a joke at the dinner table. What was that Orwell also wrote in Nineteen Eighty-Four, about child spies reporting their parents for thoughtcrime?

This law is a censors’ charter. Police Scotland have set up more than 400 ‘third-party reporting centres’ where anybody can drop in to accuse somebody else of a hate crime. And what is the definition of that heinous offence? As the Police Scotland website spells out, a hate crime is officially ‘any crime which is understood by the victim or any other person as being motivated (wholly or partly) by malice or ill-will towards a social group’ (my emphasis).

The woke busybodies of Scotland, aka ‘any other person’, have already been queuing up to lodge accusations of hatred against JK Rowling. And she is very unlikely to be the last target.

Scottish first minister Humza Yousaf has sought to brush off criticisms of the Hate Crime Act by insisting that offenders will have to cross a ‘very high threshold’ before being prosecuted. Even if that were true, it would make no difference to the problems with this law both in principle and practice.

It will still be up to the courts to decide what we are allowed to say, for judges to rule on what speech should be considered ‘reasonable’. Long before a case gets to court, it will be up to the police – and often, individual officers – to decide who to warn against speaking out of turn, and which words to record as one of their infamous ‘non-crime hate incidents’.

The impact of this vague, elastic law can only add to the general confusion about what we are allowed to say today, and put more pressure on people to keep quiet rather than risk it. Alongside formal censorship by the authorities, and informal censorship through cancel culture, self-censorship is already a major problem facing public debate today. It is set to get worse with the Hate Crime Act.

Whenever you try to restrict free speech, the same questions arise: who is going to draw the line, and where? With such a subjective issue as ‘stirring up hatred’, where one woman’s free speech is another man’s hate speech, things become even more contentious.

The subjective character of hate-speech laws helps to explain why a small group of trans activists have been able to have such a disproportionate impact on the issue, even winning specific recognition as a protected group in the Scottish law (unlike the biggest group in society – women).

As I argued a few years ago in my free-speech book, Trigger Warning, when these trends were first becoming clear, ‘the clue is that to be transgender is an entirely subjective, self-defined identity’. Trans people can declare that they are women, insist that everybody accepts their personal fiction, and demand punishment for anybody who refuses to obey their new language rules. ‘It is this censorious subjectivity’, I concluded then, ‘this belief in a form of personalised blasphemy, that makes the transgender lobby such poster boys, or perhaps poster “women with penises”, for the new creed of intolerance in the name of tolerance’. The immediate issues, then and more so now, may be about trans rights and women’s rights. But an underlying principle at stake is always freedom of speech.

Anybody should have the right to hate whatever they choose, be it Islam or atheism, Black Lives Matter or the Conservative Party. True tolerance means allowing others to express their opinions, however objectionable you find them, and then being free yourself to tell them what you think. In this I am always with the great Englishman and famous visitor to Scotland, Dr Samuel Johnson, who declared that: ‘Every man has the right to utter what he thinks truth, and every other man has the right to knock him down for it.’ Figuratively, at the very least.

In this spirit of tolerance, some of us have spent the past six months since the 7 October massacres trying to ‘stir up hatred’ against the Islamist death cult of Hamas and, at the same time, call out the anti-Semitism that has burst through the surface of our society. That is the sort of open battle of words and ideas that cannot be tolerated by those in Scotland, the UK and beyond who hate and fear free speech more than anything.

Mick Hume is a spiked columnist. The concise and abridged edition of his book, Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?, is published by William Collins.