Defining hate crimes

The Hate Crime and Public Order (Scotland) Act 2021 has attracted a great deal of criticism, much of it missing the point.  The Act does three things.  It consolidates existing laws about hate crimes, while abolishing the ancient offence of blasphemy.  Second, it extends protection from “threatening or abusive” behaviour to a number of protected characteristics, including religion, gender identity, age and disability.  (Race and sexuality were already protected under previous legislation.) Third, it takes the idea of public order into the private sphere: in a world where people can send messages to thousands from the comfort of their living room sofa, the old definitions of public space don’t work any more.

The Act has some clear defects.  The most obvious, following  Joanne Rowling’s furious exchanges with online trolls, is its failure to protect women from abuse.  Only slightly less obvious is the question of reasonableness: the police have already been inundated with thousands of complaints that presumably seem reasonable to the complainers but not to people who don’t share their world view.  (There is some reason to believe, too, that many of those complaints are vexatious – aimed at making a political point, rather than offering evidence of threat.)  A third is that the offence of ‘stirring up’ hatred relates specifically to groups: threatening or abusing an individual person on the basis of their character or identity is left to previous legislation.

Another problem, which is regrettably intrinsic to the subject, is that threats are often delivered obliquely.  Holocaust denial has been a common route; the world ruled by shapeshifting lizards less common, but nevertheless a cause for concern.  The idea that it’s somehow acceptable to go to a random kosher delicatessen and ask about conduct of the Israeli  Defence Force comes close.  That’s not, however, a reason not to legislate – it’s proof that protection is needed.

Some of the criticisms, however, are illegitimate.  One is the idea that responding to threatening or abusive behaviour is beyond anyone’s competence.  Another is the argument that this is an infringement of ‘free speech’.  Freedom of speech is not a right to say whatever one pleases, and it never has been.  I’ve reviewed the arguments about this in a previous blog, so I won’t repeat it all here.  In UK law, common restraints on free speech have included laws about public order, libel, blasphemy, incitement and conspiracy. Whether speech is restricted or not depends on what is said, where and when.   Words can kill.


People are confused about hate speech

People get very muddled over ‘free speech’.  The primary objection to the case of the ‘Nazi Pug’ is not that someone was saying something which was upsetting or offensive; it is that repeating the phrase ‘Gas the Jews’, whether or not it is presented as a joke, goes beyond the bounds of what is permissible.

Liberty is not licence.  It’s generally accepted that the point where one person’s liberty stops is where it limits the freedoms of someone else.  The freedom to swing your fist, as the saying has it, ends where my nose begins.  Your rights and liberties are not just about the freedom to speak.  They may also protect you from having to hear some things directed at you – threats, intimidation, and assaults among them.  No-one should have to to listen to other people saying “we’re here to burn your house down” on the basis that those are just words.  Words are not empty – they are often the precursors to action.   We often accept trivial and silly sentiments from comedians – Monty Python’s design to slice up the public with rotating knives – because we’re not taking them seriously.   “Gas the Jews” isn’t silly or trivial.   It’s a threat, and a threat with real meaning; repeating it, as my friend Ephraim Borowski argued for the Scottish Council of Jewish Communities, normalises it.

There is another fundamental objection, too.  Free speech, Scanlon argues, does not reside in the rights of the person who is speaking, but in the rights of the person who is listening.  You are entitled to hear many views that are objectionable, offensive or unpleasant to some people: for example, you may want to read The Satanic Verses, even though it is offensive to many Muslims. That’s about your rights, not the author’s.  However, your rights to hear things are not limitless, and there are things you don’t have the right to hear.  In the UK, you’re not at liberty to hear libels (that is, falsehoods which are damaging to individuals), or treason, which is damaging to the security of everyone.   You are not entitled to hear incitements to commit crime, threats to minorities, attempts to raise an army for the purposes of civil war.

There’s a tendency to dismiss words, on the basis that they’re harmless; that’s far from being the case.  Words can crush people.  They can threaten, intimidate, bully, and destroy.   (The US laws on hate speech largely fail to deal with this; it’s only chargeable as  hate speech after the action has been taken.  Most European legislators don’t think that’s good enough.)  The central objection to hate speech is not that it is hateful – lots of stereotypes are – or even that it is bad manners, but that it is dangerous.  “Let’s kill these people”  – there are plenty of examples of that kind of thing on the internet, but I’m not going to link to them – is illegal in most European countries, for a good reason.  And “Gas the Jews”, whether or not it is said with a smile, clearly falls into that category.