In Britain, five Muslim men from the East Midlands city of Derby have been put on trial for the composition and distribution of leaflets. The literature — entitled “The Death Penalty?” — contends that gay sex is a sin that leads its practitioners directly to hell; it also calls for homosexuals to be given the death penalty and features on its front side a picture of a mannequin hanging from a noose. The prosecution is the first under a new “hate crime” law passed in March 2010 that makes it illegal to “stir up hatred on the grounds of sexual orientation.”
In court, prosecution lawyer Bobbie Cheema told a jury comprising seven men and five women that the leaflets were “threatening, offensive, frightening, and nasty.” She is right; they are exactly that. But one has to ask the question: So what? “Offensive” they may be, “nasty” too, but there is a world of difference between material that is repugnant and upsets people — an inherently subjective designation — and acts that are physically harmful, and to which one can apply a proper legal objectivity. Note that the men are not being prosecuted for inciting violence; the leaflets call for the death penalty, not for vigilante attacks.
The passage of the law, and its first use this week, is the continuation of a worrying trend in the United Kingdom. Laws governing thought and speech, rather than deed, are becoming commonplace. So much so, in fact, that artists — ranging from comedian Rowan Atkinson (best known as “Mr. Bean” in the United States) to actor Stephen Fry (who is gay) to writer Ian McEwan — have worried out loud that, well-intended as it might be, such legislation inevitably leads to “a culture of censoriousness” and “a questioning, negative, and leaden attitude.” Worse, it cripples free expression and leaves people looking over their shoulders.
There is a world of moral difference between poetic license and the noisome leaflets put out by the accused. But therein lies the problem: Who decides where the line is? In cases like these, the gray areas so beloved to the British need rubbing out and replacing with the cold certitude afforded by principles marked out in black and white. (The American First Amendment might be a good place to start.) Context, complexity, and delicacy are all values properly cherished in the right circumstances, but they have no place in discussions of fundamental liberty. One either has freedom of speech, or one does not. It is, as A. A. Gill so wryly observed, like being pregnant: “You either are, or you’re not.” One can no more say that a person’s comment or cartoon or article or leaflet was “too offensive” to be covered by free-speech protections than one can say that someone is “too guilty” to stand trial. Freedom of speech means just that, regardless of whom it offends.
Unfortunately, British politicians all too frequently promise that they “believe in freedom of speech, but . . . ,” and, in recent years, the temptation to act has proven too much for many parliamentarians to resist. Among the recent developments, perhaps the most execrable is the quiet 1994 addendum to the 1986 Public Order Act that prohibits Britons from causing anyone “alarm or distress.” It provides that
A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he — (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.