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.
This is a grave mistake, for one man’s alarm is another’s amusement, and distress is in the mind of the beholder. In 2006, in response to the overreach, a positive amendment was made in an attempt to shore up speech protections:
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
Unfortunately, this limitation has been largely ignored, and the interpretation of such a subjective standard has been inevitably captured by politics — and political correctness — and applied inconsistently. When socialist Labour MP Diane Abbott wrote on Twitter last week that “white people . . . love playing ‘divide and rule,’” nobody suggested that she was guilty of breaking the law. Many even concluded that she couldn’t be “racist” because of her color. (She is black.) That is not how the law should work, and it makes a mockery of us all when it does.
Others have not been so fortunate as Ms. Abbott. In 2002, evangelist Harry Hammond was ordered to pay a total of £695 for displaying a banner that read, “Jesus Gives Peace, Jesus Is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord.” In 2006, Stephen Green was arrested in Wales after distributing Christian pamphlets that called homosexuality “a sin,” and in 2010, a Christian preacher in Cumbria was arrested for preaching the same message on the street. Also in 2010, Harry Taylor was convicted of “insulting, offending, and alarming” an airport chaplain at Liverpool’s John Lennon Airport when he left anti-religious cartoons in the prayer room, and was ordered to spend six months in prison, perform 100 hours of unpaid work, and pay £250 in damages. It was the second time that Taylor had been convicted of distributing cartoons, so, for good measure, the judge imposed on him a five-year ban on carrying cartoons.
The Derby case is the first time that Muslims have been accused of violating “hate speech” laws, and it has received a flurry of attention as a result. But in a free society under the rule of law, the religion of the five men should be wholly irrelevant. Free speech is a unitary issue in which there are no possible divisions. The moral standing of the speaker has no relevance, other than in our correlated free right to judge him in turn for his actions, and it should not matter whether the person speaking is the finest man who has ever lived or the worst, nor whether or not a majority concurs with his sentiment. It must not matter whether a writer is brilliant or moronic, or a cartoonist witty or bigoted, because it is not up to power, authority, plurality or orthodoxy to make that distinction. Parliament can not be the architect of its own opposition, nor the offended the authors of their own offense. Put bluntly, the law must not distinguish between the writings of Hitler and those of Shakespeare.
We, of course, must. We the people. We the ones with the power and the right. We must distinguish between Hitler and Shakespeare — and, in this case, lend the Derby Five our strongest opprobrium — because the success or failure of our civilization depends on it.
It is high time that the British people took a giant leap away from their paternalistic past and landed squarely and maturely on their own feet. A government that refuses to censor the insane or the rude or the bigoted is not a government that endorses its miscreants, but one that endorses reason and protects liberty, even when its outcomes are unpleasant. To protect the rights of the undesirable is to protect the rights of all. So, speak up Britain, speak up in the language you gave the world, and demand the right to use all of it whenever and wherever you damn well please.
— Charles C. W. Cooke is an editorial associate at National Review.