by Dan Kinning
Free speech and expression have often held a precarious and fragile place within British society, subject to the changing political and social forces of the time. In the last century, the coercive power of the state was used to quell opposition to the World Wars, the right of women to vote and various other political ideologies.
The twenty-first century has been no different. The right to free speech already faces ominous challenges from those who seek to silence unpopular view points. Only, in this case, the suppression is rationalized as a means of quelling hurtful words and, on occasion, distant acts of violence. Hate speech legislation has become the new fashion, and with it, a new means for the state to exercise control over public debate and silence its opponents.
The introduction of ‘hate speech’ offences were intended by legislators to prevent others from being incited to hatred or violence. Under the Public Order Act 1986 hatred is loosely defined as hatred expressed to an individual or group on the grounds of race, religion or sexual orientation. The lack of a sufficiently precise definition makes it difficult to pinpoint where spirited debate begins and when it becomes so dangerous to public order that the ‘right’ to speak freely should be removed.
The case of Hammond v DPP illustrates this difficulty. The Divisional Court on appeal upheld the conviction of Mr Hammond, an elderly Christian street preacher for holding up signs saying ‘Stop Immorality’, ‘Stop Homosexuality’, ‘Stop Lesbianism’ and ‘Jesus is Lord’. On the afternoon of Mr Hammond’s arrest, a crowd of 30-40 people had gathered around him. Some even assaulted him. He refused to stop preaching and was charged under the Public Order Act for displaying an ‘insulting’ sign ‘causing alarm or distress.’ The court rejected his argument that his right to free speech and expression had been violated. The police took no action against those that assaulted Mr Hammond.
The law protects everyone from physical interference. As the Jurist Sir William Blackstone observed in his Commentaries on the Laws of England over 250 years ago “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”. Hate speech laws punish the expression of beliefs and ideas not conduct.
The criminal law has for centuries provided an objective standard from which conduct can be evaluated. If one person strikes another, it can be established with a degree of certainty that an assault has been committed. Beliefs and ideas differ from one person to another, change from one generation to another, and are subject to feelings. They are incapable of being evaluated objectively. When ‘characteristics’ that are protected from hate speech come into conflict with each other as they did in Hammond, the state becomes the arbiter of which belief or idea can be expressed and by what method. This arrogates a power to the state that is pernicious and the hallmark of a totalitarian democracy.
Even if such language was to cause others to engage in physical violence as legislators claim, it is doubtful whether a person could be held responsible for the violent act of another. In the old case of Beatty v Gillbanks, at first instance, the Salvation Army were warned by the Magistrates from marching through the streets promoting temperance knowing that those who opposed them would disrupt the march and cause a public disturbance.
The Divisional Court allowed the appeal observing that “a man may [not] be convicted for doing a lawful act merely because he knows that his doing it may cause another to do an unlawful act.” Despite this case not being followed in Hammond, it was followed in the more recent case of Redmond-Bate v DPP. Had the Divisional Court followed the Beatty decision, it is doubtful whether Mr Hammond’s conviction would have been upheld.
Furthermore, the House of Lords in The Queen (on the application of La Porte) v The Chief Constable of Gloucestershire emphasised that the police may only intervene when violence is imminent and there is no other way of preventing a breach of the peace. Even when there is a breach of the peace, it is for the police to use their powers to deal with the cause of the disturbance, namely the person or group who is threatening or engaging in physical violence, not those who are speaking in a way that others find insulting or even threatening.
The state cannot be trusted to determine speech, protect liberty and be the guardian of equality. Hate speech laws have attempted to re-write the very purpose of the criminal law’s existence to punish certain forms of conduct that offend everyone’s right to bodily integrity. It holds those who express views that do not accord with the mores of the day for the violence of others and sends a dangerous message that violence is acceptable in certain situations. This legislation is wide-open to abuse by a Parliament that believes it is sovereign to make any law it pleases and a government that will use it as a tool of oppression against those who disagree. It must therefore be repealed.