Free expression rights hit by friendly fire in war on hate speech

To make a quick point at the outset, I’d say there is no such thing as ‘good practice’ in restricting speech, even hostile, racist, insulting or offensive speech, whether uttered in person or on the web.

Mostly there’s only bad practice, or at best there’s practice that’s not bad, if not good. But the issue here is not the practice of restriction of rights but the practice of balancing of different rights where they conflict, which has been expected of us ever since the end of World War II and the global ratification of the Universal Declaration of Human Rights.

The declaration succeeded but has not yet supplanted an older, Libertarian tradition, in which rights, including freedom of expression, are understood to be absolute and equally so as well.

Thus, it’s argued, rights are not negotiable, and any attempt to balance one right against another would weaken one and strengthen another, to no one’s advantage.

There are a number of reasons why this libertarian, absolutist tradition persists, mainly because in many places the relationship between the overwhelming power of the state and the limited freedoms of the citizen is so obviously and unfairly imbalanced, the idea of trying to restore that balance through conventional means is a ridiculous one – which is why we got the Arab Spring.

But in Europe and the United States, the West, for want of a better word, where democracies are supposed to be more stable, established, older, the absolutist tradition persists because, when challenged to do so, those responsible for finding the balance are failing to do so, sometimes, failing even to try.

To quote the Council of Europe, from its own attempt in 2003 to address racist expression on the web: the central requirement is “the need to ensure a proper balance between freedom of expression and an effective fight against acts of a racist and xenophobic nature”.

Westboro Baptist Church in New York by David Shankbone
Westboro Baptist Church protestor: David Shankbone/WikiMedia

In the UK the system gets the theory, it’s just struggling with the practice. Not just in terms of the Internet but across the entire spectrum of freedom of expression rights. This isn’t just about freedom of speech, but every expression of opinion in every form.

Confusion reigns at every level from arresting officer to supreme court. In 2006 an Oxford student called Sam Brown was arrested, charged and fined for calling a police horse ‘gay’.

The arresting officer judged his comments to be homophobic and likely to cause “harassment, alarm or distress”. As ridiculous as this sounds – and it is ridiculous – the policeman’s act makes just a little sense if you place it in the context of one of the main rationales for challenging offensive and hateful speech – that the free and easy use of discriminatory language contributes to an atmosphere of contempt and hostility that ultimately makes discrimination sound, if not acceptable, then at least natural.

But it was still an act that made a mockery of the law, of the right of peaceful free expression and possibly above all, the honest and legitimate desire to limit homophobia in the UK.

Index has just received a review – produced pro bono – by a team of the country’s top lawyers, which found similar inconsistencies and poor practice in the way the country’s justice system handles cases involving words or acts deemed to be insulting or offensive to others .

First, the system is confused: on the basis of UK case law, there is legal authority that defacing the US flag in protest as a form of free expression would not be insulting, but burning a war memorial poppy would be – and criminally insulting as well.

We have a system whereby people on the first rungs of the legal ladder – policemen and local magistrates – are being expected to judge potentially insulting and abusive forms of free expression without proper guidance on how that judgement should be made, or even proper definition of the terms ‘insulting’ and ‘abusive’.

Even worse, there is no apparent expectation that they take Article 19 free expression rights (in Europe Article Ten) into account when doing so.

Making that balance is not optional. The UN’s universal declaration was evolved in Europe into the European declaration, which was in turn written into UK law as the Human Rights Act. The system is required to consider the effect of any judgements on the defendant’s free expression rights. But often failing to do so.

The overall effect of all this is a system that is not fit for purpose – either as means of confronting discrimination, or of preserving public order.

Instead the system takes the simplest route, the lowest common denominator of action, to set what was described earlier as the ‘threshold of offence, and simply accepts the fact that if someone somewhere has been or could be insulted or offended, then this threshold has been crossed.

This is the system that is establishing itself day by day on the Internet, only applied by ISPs instead of police constables and lay magistrates.

The answer could be good or better practice, if that could be defined, assigned and implemented by the system. But in my view maybe we should stop trying to classify insult or abusive words for the purpose of criminalising or just censoring some words and not others. Keep it off the statute book.

There is enough in the statutes already to tackle overt racist threats and intimidation, defamation, incitement to violence, acts that are arguably of greater importance anyway.

Why knot an entire system up in an arcane and unsolvable debate about what is offensive or insulting in relative terms. Relative to who, anyway?

I believe society has to consider the civility of public discourse when addressing key issues of culture like immigration and race. And I believe that the free and easy use of discriminatory language contributes to a culture of contempt and hostility that can ultimately accommodate discrimination and violent prejudice.

But as well put by one speaker yesterday, there may be better ways to change culture than by force of law.

From my speech notes, Regional Symposium on Social Media, Freedom of Expression and Incitement to Hatred in Asia, Singapore, January 14, 2012.

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