Expressing an opinion is not incitement to violence

‘Don’t protect the mosque. Blow the mosque up with the adults in it.’

That Facebook comment has earned a Cheshire woman 15 months in prison. Julie Sweeney was reacting to a photo of people helping to repair a mosque in the aftermath of the riots triggered by last month’s stabbing attack in Southport that left three children dead. The prosecutor conceded that Sweeney was posting out of anger and not making a genuine threat, but the judge said that ‘so-called keyboard warriors like her, have to learn to take responsibility for their inflammatory and disgusting language’.

Sweeney is one of a number of people jailed for social-media posts in response to the recent riots. An Egremont man was sentenced to eight weeks in jail earlier this month for sharing images depicting Muslim men arriving in boats and wielding knives, with captions like ‘Coming to a town near you’ and ‘When it’s on your turf, then what?’. A Northampton man received a three-year prison sentence for an X post that read: ‘Mass deportation now, set fire to all the fucking hotels full of the bastards for all I care… If that makes me racist, so be it.’

To state the obvious: those who rioted, incited violence or made actual, targeted threats should be prosecuted, and it’s easy to see why so many Britons find the statements quoted above contemptible. But definitions are critical. What exactly does ‘incite’ mean? How clear, direct and immediate must the causal connection between the speech and the unlawful action be before we can lay the blame for the action on the speaker?

Under the UK’s vague speech laws, it turns out, not very clear, direct or immediate at all. And that hands the government a powerful tool to suppress dissenting and unpopular views.

The brilliance of free speech is that it allows us to work out our disagreements through dialogue, debate and other tools of persuasion. After all, no one is infallible. No one is free from bias or ignorance. Vesting whoever happens to control the levers of power with the authority to decide which opinions or ideas are out of bounds risks entrenching their views as dogma, stifling our collective pursuit of truth and understanding.

That’s not to say speech should be entirely unregulated. Even in the United States, which has the benefit of the First Amendment, some speech is unprotected. But the exceptions are few, narrow and well-defined, covering situations where speech causes a direct, immediate and serious harm. The mere expression of an opinion – however abhorrent – is never a legitimate basis for censorship.

Let’s return to incitement. Under US law, incitement is speech intended to and likely to provoke immediate unlawful action. This is sometimes called the ‘emergency principle’. Government intervention becomes justified only when free speech can no longer do its work. There is an immediate threat to physical safety and, importantly, no time for debate or discussion – the normal and preferred means of countering bad ideas.

While the social-media posts that landed several Britons in jail were posted during a volatile period, and showcase obvious animosity, none of them would meet this standard. They came from small, relatively unknown accounts; they didn’t call on anyone in particular to act; and it is unlikely anyone read any of the posts and immediately engaged in violence. As ugly as the sentiments may be, it is highly unlikely they posed any real threat.

A counterfactual can help illustrate where the line is. Think of an angry group of torch-carrying protesters standing outside a mosque. The group’s leader goes on a rant about Muslim immigrants and calls on his followers to burn the mosque down. The mosque’s occupants are in immediate physical danger. The distinction between speech and action blurs, reaching the point of collapse. That’s incitement.

It’s easy to think of other types of speech related to the riots that would not be protected under UK or US law. A group using social media to organise a riot: criminal conspiracy. A protester seriously threatening to physically harm a specific individual: true threat.

But UK law goes further, employing nebulous and subjective standards that grant the government power to suppress the pure expression of ideas. For incitement, UK law doesn’t require the speech to be likely to cause imminent violence. Nor does the speaker even have to intend that outcome. Under the Public Order Act 1986, it’s enough for authorities to decide that the speech is ‘insulting’ and likely to ‘stir up racial hatred’. Under the Communications Act 2003, also illegal are ‘grossly offensive’ communications, with that term left undefined.

This state of affairs puts everyone at the whim of the censors. What if the authorities miss the irony or sarcasm in a post? What if their sensitivity to offence is greater than yours?

It’s not just comments like ‘blow up the mosque’ that these laws prohibit. Two years ago, a man was convicted of sending a ‘grossly offensive’ email that raised concerns about the running of a local cemetery board and questioned whether a town councillor ‘that has limited reading ability’ and is ‘profoundly deaf, and partially sighted’ could capably fill the role. Sure, many might find that remark offensive. But if a free society prioritises the sensibilities of political leaders over citizens’ attempts to hold them accountable, it will not stay free for long. Though an appeals court ultimately overturned the conviction, the law’s boundaries remain unclear and the time, money and energy spent by that citizen defending himself against such charges cannot be recovered. That a conviction was secured in the first place risks chilling legitimate public discourse.

UK speech laws have also ensnared minorities criticising public officials, demonstrating how speech codes benefit the powerful and tend to boomerang on those they were meant to protect. A black man was recently investigated for tweeting a Daffy Duck tap-dancing gif to accuse a black politician of ‘performing’ for white people at the expense of the black community. A British Asian woman was criminally charged in May for expressing similar sentiments after holding a placard depicting then prime minister Rishi Sunak and then home secretary Suella Braverman as coconuts (implying they are ‘brown on the outside but white on the inside’).

Wading into other hot-button political topics can lead the police to your doorstep, too. A man accused police of using the novel Nineteen Eighty-Four as an ‘operating manual’ after they investigated him for a tweet questioning whether transgender women are real women.

Even edgy humour can be criminal. A few years ago a YouTuber was infamously convicted of posting a ‘grossly offensive’ video showing his girlfriend’s pug giving a Nazi salute.

While these individuals endure police investigations, criminal trials and imprisonment, many others who say things some consider offensive or likely to foment hatred will go scot-free. When speech laws are tied to vague and subjective criteria, double standards are inevitable.

Even if these laws aren’t being enforced in a way that concerns you today, there is no guarantee that will hold true in the future. Eventually, a new politician or police chief will come to power and have their choice from a wide range of interpretations of ambiguous phrases like ‘stirring up hatred’ that they can use to stifle debate on the contentious topics of their choice.

Times of unrest create opportunities for governments to undermine civil liberties in the name of public safety, and that seems to be exactly what’s happening in the UK. Keir Starmer’s Labour government wants to tighten online-speech regulations, which already ban things like sending false messages that cause ‘non-trivial psychological harm’, whatever that means. The prime minister is also considering adopting a broad definition of Islamophobia that could curtail freedom to criticise religion. ‘Think before you post’, the government recently warned its citizens. Sensible advice from a friend, maybe, but rather chilling when it comes from a government ready to incarcerate people for crossing a line whose location is perpetually uncertain.

The lesson the government won’t learn is that censoring ‘hate speech’ and misinformation isn’t actually effective at reducing hate or ignorance – it can actually backfire by turning the censored into martyrs and accelerating radicalisation. Polling in the wake of the riots shows that about half the British population now thinks right-wing extremists are a ‘big threat’, a 15-point increase since February. The rioters are doing a great job of making themselves unpopular. They don’t need help with that from a censorial state, which could end up boosting their popularity and appeal.

Even if a law could eliminate the utterance of anything that might be considered hateful, offensive or ignorant, people will still think hateful, offensive and ignorant things. Censorship won’t change their minds; it will only shut their mouths – and it will cause them to find other ways to release those hateful, offensive and ignorant thoughts.

The only way to truly change minds is through the hard work of engaging with one another and using the power of speech to answer bad ideas. Nobody said that would be easy. But when the only alternative is the state deciding when to jail people for their opinions, the choice is clear.

Aaron Terr is the director of public advocacy at the Foundation for Individual Rights and Expression (FIRE).