This essay will seek to demonstrate firstly, that hate speech laws are an unjustified restriction on free speech, and secondly that the justifications put forward for hate speech legislation are not only invalid but are wholly alien to English jurisprudence.
The philosophical basis for fee speech and its proper limitations
No individual or group has a monopoly on truth. Restrictions on free speech may stifle ideas that could otherwise lead to the betterment of mankind. Additionally freedom of speech is consistent with libertarian principles; irrespective of the quality of a person’s speech, there must be a very good reason for curtailing it.
Restrictions on freedom of speech should only be permitted where they are necessary to prevent a specific and tangible harm. Hate, which means intense dislike, is a vague and subjective concept and therefore by definition, the spread of hate, or even the hating of specific persons, is not a tangible and specific harm that would justify curtailing free speech.
Another concept that should be applied in defining the limits of free speech, is that it is never legitimate to prohibit the expression of an idea per se. The only legitimate restrictions on free speech are the proscription of incitement to violence and other very specific ad hoc restrictions, such as defamation, contempt of Court and espionage. None of the aforementioned restrictions involve prohibiting the expression of an idea per se. Even where an idea is expressed within the prohibited speech, it is always possible to extract the idea and import it into legitimate speech.
An example of the proscription of a notion being expressed per se, can be found in the judgment by the European Court of Human Rights in Vejdeland & Others v Sweden1. The applicants had been convicted of a criminal offence in Sweden as a result of distributing leaflets in a school. The leaflets stated that homosexuality was a deviant sexual proclivity and that homosexuals were responsible for the spread of Aids. The applicants petitioned the Court on the grounds that the conviction infringed their right to free expression as guaranteed article 10 of the European Convention on Human Rights 1957. The Court unanimously rejected the claim. Judge Yudkivska essentially admitted that the expression of the idea itself justified a criminal penalty which was compliant with article 10 of the Convention.2
Whilst the other judges did not adopt the same express reasoning as Yudkivska, they did not specify how the applicants should have expressed their ideas differently so as to bring themselves within the ambit of article 10.3 In any event there is no way that the applicants could have expressed their ideas in an anodyne manner so as to avoid being denounced as ‘hateful’. Where advice is given to re-state maxims so that they are not ‘hateful’, this may result in their bastardisation or even evisceration; the advice in question is subjective advice given by somebody who almost certainly does not share the belief. On the other hand, with regards to incitement to violence and other specific ad hoc restrictions on speech, it is always possible to objectively separate any idea expressed, from the offence itself.
The Vedjedland judgment also demonstrates the impotence of article 10 as a protection for fee speech. The exceptions are incredibly vague (the vaguest are emboldened) and this is made worse by the potential deployment of the equally vague article 17; see below:
“ARTICLE 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary
ARTICLE 17 Prohibition of abuse of rights Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and 14 15 freedoms set forth herein or at their limitation to a greater extent than is provided in the convention”
Another example of criminalising the expression of a particular idea per se, is provided by the case of Harry Hammond whose conviction under section 5 of the Public Order Act 1986 was upheld on appeal. Mr Hammond, an elderly evangelical preacher had displayed a sign stating:
“Stop homosexuality, Stop lesbianism, Stop immorality”.4 Mr Hammond was assaulted and knocked to the ground. The police attended the scene and arrested Mr Hammond instead of those who assaulted him.
It is easy to become indignant at the appeal judges in the Hammond case, but they were limited to considering whether or not it was open to the Magistrates to find that the sign was insulting and caused distress to those who saw it; it was the law itself that caused the outrage against Mr Hammond and free speech itself. Mr Hammond believed that homosexuality and lesbianism were immoral; there was no way he could express this view in public without being at risk of being convicted of a criminal offence.
Even where one can argue that the state authorities have been over-zealous, one has to bear in mind that they are enforcing vague and subjective legislation. Furthermore, even when charges are not laid and offences are not actually committed, the nebulous and subjective nature of the offences inevitably has a chilling effect on the expression of certain maxims, as people can have little confidence that they can express these ideas without being subject to a criminal penalty.
The arguments in favour of hate speech – alien to English jurisprudence
Here is an appendix to Law Commission Consultation Paper 213 on hate speech law in the UK. The paper sets out the history of such legislation and via Hansard references, shows some of the justifications put forward for enacting such legislation. To summarise the most common arguments in favour of hate speech laws are:
(1) that hate speech can lead to violence
(2) hate speech amounts to defamation of certain groups
(3) that the state must take a moral stand against ‘hate’
(4) the snowball argument (that ‘hate’ speech caused genocide during WWII) or at the very least hate speech will damage social cohesion
This argument can be dealt with very simply and swiftly; there are already laws in place prohibiting violence and the direct incitement to violence. It is not the function of the criminal law to address nascent and sociological causes of violence; adopting such a philosophy provides the criminal law with a potentially infinite reach which is wholly incompatible with a free society.
Defamation of a legal person concerns purported statements of fact that are untrue and cause specific damage to that person (the recent developments in the law of defamation in this respect are welcomed by the author). It is never essential to the expression of an idea to make a purported statement of fact about any specific person.
On the other hand, it may be necessary to make empirical assertions about certain grounds in order to support a particular maxim. For instance it may be necessary to argue that certain racial groups have lower scores in IQ tests for innate reasons in order to support racialist theories. One can understand why individuals belonging to the racial group that is the subject of such assertions would feel defamed.
However there are a number of distinctions between such empirical assertions and legal defamation:
(1) The harm to the defamed legal person is more tangible and specific.
(2) The law must be concerned with matters than can be proven either way; empirical arguments of the kind mentioned above are potentially endless. It should not be the function of the Courts as opposed to wider society to resolve such debates.
(3) The relevant empirical arguments are essential to support the particular idea.
(4) Crude generalisations about an entire group are self-evidently false whereas a purported statement of fact about a single legal person might be true and thus could damage that person’s reputation.
Trying to protect the sociological standing of a particular demographic group as opposed to protecting a legal person from specific harm, is an aim that is totally alien to the English common law.
The government of the day can make policy statements espousing a particular moral view but it should not be the function of the criminal law to regulate morality per se. Furthermore to say that the government should take a position on hate is problematic, as hate i.e. intense dislike could be viewed as reasonable in some circumstances and probably has an evolutionary function.
What is normally meant by taking a stand against hate, is that the criminal law should punish hatred against minorities who are perceived to be vulnerable. This is problematic for a variety of reasons but suffice to say that if one rejects the law being used to achieve wide ranging policy aims, then one cannot accept hate hate speech legislation on this ground, which is wholly alien to English jurisprudence.
Hateful speech will inevitably lead to genocide, so this argument goes, with the events of WWII being used as an example. Putting aside the fact that a rather inaccurate and manichaeistic historical account of WWII has prevailed*5, it should not and cannot be, the function of the criminal law to control the minds of the public so that there is no will to commit crimes, however heinous these intended crimes may be. In any event, the vindictive treaty of Versailles, hyper inflation, mass unemployment, suicide rates of circa 250,000 per year, were almost certainly a far greater contributing factor to the events of WWII then Der Sturmer or any other similar publications.
The English common law if enforced, will always prevent democide and genocide because all those within its jurisdiction are subject to it. This has been the case since time immemorial and is exemplified by the statement made in the 13th Century by Chief Justice Bracton:
“Rex non debet esse sub homine, sed sub Deo et sub lege, quia lex facit regem – the King can be under no man, but under God and Law; for it is Law that makes the King”6
Indeed danger stems from the pernicious version of Parliamentary Sovereignty that presently prevails within the judiciary and legal profession; according to this doctrine any legislation passed by a Parliamentary majority is lawful.7
However it is entirely alien for English law to seek to engineer its subjects, so that they will never possess the will to commit evil acts. This applies equally to the less dramatic aim of using hate speech laws to maintain social cohesion (in any event another way of stating this aim, is that the criminal law should be used to punish dissidents who reject the idea of multi-cultural and multi-racial societies); which is more akin to the kind of grand declarations which continental law makers have made as a preamble to their legislation, for instance after the French Revolution. The beauty and utility of the English common law lies in the fact that it has developed in a piecemeal and pragmatic manner in response to specific problems.
Hate speech laws are not a justified restriction on free speech if one accepts the premise that restrictions should only be imposed to prevent specific and tangible harm. In practice hate speech has led to the expression of certain ideas being criminalised. At the very least it has had a chilling effect on the expression of certain ideas. This goes against the raison d’etre of free speech and the idea that there is no conclusion to political debate.
It is nonsensical to try and legislate against a subjective and nebulous concept like hate. The arguments put forward to justify hate speech amount to attempts to engage in social engineering which are wholly alien to the English common law. It is therefore accurate to describe hate speech legislation as part of an alien jurisprudence, as far as English law is concerned.
1 ECHR 050 (2012)
2 Ibid at paragraph 8 of his judgment.
3 They did express reluctance at their finding that there had been no violation of article 10 and suggested that the fact the applicants distributed unsolicited leaflets at a school was a material factor, however this was not an ingredient of the offence.
4 2004 EWHC 69 (Admin)
5 – See P.Buchanan ‘Churchill, Hitler & The Unnecessary War’ 2008
6 See Gerard Batten ‘The Inglorious Revolution’ 2013
7 Ibid at Part I – The Rule of Law – For a comprehensive refutation of this doctrine