Jamie Gillies, spokesman for the Free to Disagree campaign
There is mounting concern these days about the erosion of free speech, a fundamental right in democratic societies. In Scotland, we’ve witnessed the advent of so-called ‘cancel culture’, a chilling spectacle where individuals who express opinions outside of a narrow political orthodoxy are savagely attacked online and rendered cultural outcasts.
An obvious example of this is the recent episode involving J.K. Rowling, author of the Harry Potter series, who raised concerns over the demands of transgender activists. Rowling’s concerns are shared by many but she was immediately labelled transphobic and subjected to vile abuse. Those linked to her, including actors in the Harry Potter film franchise, frantically sought to dissociate themselves. Certain elements of the media published headlines portraying her as a bigot, bent on harming trans people – a caricature that is clearly untrue.
Rowling’s treatment shows that in Western society, it’s no longer possible for high profile people to express certain opinions online without falling prey to vengeful mobs. Last week, Rowling joined a collection of writers, artists and academics in co-signing a letter criticising increasing “censoriousness”, “an intolerance of opposing views”, and “a vogue for public shaming and ostracism”. The signatories, from across the political spectrum, are right to raise these concerns.
Cancel culture chills free speech and creates serious problems for individuals but at least dissenters like Rowling aren’t criminalised for what they say. In Scotland, the state still upholds the right of individuals to speak forthrightly on different issues, whether controversial or not. This is why people like Rowling feel able to speak out. Our society is not like China, where the Government actively censors the speech of citizens and jails those who challenge state orthodoxy. The people of Hong Kong will attest to the nightmare that is China’s approach to fundamental liberties.
“In Western society, it’s no longer possible for high profile people to express certain opinions online without falling prey to vengeful mobs”
Of course, free speech in democracies has its limits. Speech that is threatening or encourages violence towards others has long been unlawful. There are also laws around libel and defamation. But criminalising speech that is merely offensive or politically incorrect is not the mark of a democratic society.
We can be thankful that free speech still exists in Scotland, even if speaking out on certain issues is made difficult online. But we must never take our freedoms for granted and, regrettably, a more serious threat to free speech than ‘cancel culture’ exists in Scotland today.
The Scottish Government is currently taking forward new legislation on hate crime. The Hate Crime and Public Order (Scotland) Bill consolidates existing laws but also creates new offences on the ‘stirring up of hatred’ against people on the grounds of ‘age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics’.
The Bill is meant to challenge hatred and prejudice in Scotland. Nobody would argue against this laudable aim. However, the wording of the proposed ‘stirring up of hatred’ offences is deeply concerning. The devil is in the detail.
“Criminalising speech that is merely offensive or politically incorrect is not the mark of a democratic society”
The term ‘hatred’ itself is subjective and difficult to define, especially when it relates to hatred being ‘stirred up’ in other people. Even if we could define what it was in law, how would we work out when it is present in the hearts of other people? How can police, prosecutors and judges know what this means for the operation of hate crime laws? The criminal law should focus on concepts that are clear, definable, and provable in a court of law.
The proposed offences would criminalise ‘threatening or abusive’ behaviour. While threatening behaviour is wrong and clearly understood in case law, the term ‘abusive’ – synonymous with ‘insulting’ – is vague and open to interpretation.
There are two free speech clauses in relation to religion and sexual orientation. However, these only protect ‘discussion or criticism’. The terms ‘discussion’ and ‘criticism’ are academic. There is a risk that these provisions would not protect forthright speech and debate by ordinary people on contentious issues. Strikingly, there is no free speech clause at all in relation to gender identity – the most contentious political issue in Scotland today, as demonstrated by the hounding of J.K. Rowling.
Perhaps the most disturbing aspect of the proposals is that you can commit a ‘stirring up hatred’ offence without intending to do so, and without having actually done so. The police and courts will require no evidence that any hatred was stirred up. Nor will they need any proof that you intended to do so, or that you had any idea that you might possibly do so. If the court feels your actions were ‘likely’ to stir up hatred – whatever that is – that will be enough.
“The right to free speech must include the ability for citizens to discuss, criticise, and refute ideas, beliefs and practices in robust terms”
All of this creates great uncertainty. Would it be ‘abusive’ and ‘likely to stir up hatred’ if someone ridiculed religious people for their beliefs – or atheists for their lack of belief? What if a feminist robustly defended woman-only spaces? Or a comedian made jokes at the expense of certain protected groups?
The right to free speech must include the ability for citizens to discuss, criticise, and refute ideas, beliefs and practices in robust terms. This may result in some people being offended but there is a difference between giving offence and taking offence. Many people take offence as a means of shutting down debate.
The ‘stirring up of hatred’ offences pose a serious threat to free speech. Introducing them in their current form could criminalise speech that is merely deemed offensive to certain people. In doing so, free speech in Scotland would be chilled.
In the months ahead MSPs will be invited to consider this legislation. The Free to Disagree campaign will be urging them to scrap – or at least radically amend – the proposals so that free speech is protected. We must work together to protect free speech. Join the campaign by visiting www.freetodisagree.scot