The Corner

Britain Has One John Stuart Mill, At Least

Corner readers familiar with my cataloguing of Britain’s increasingly frequent free-speech violations will have become intimate with my two main complaints: 1) that pretty much all of Britain’s problems stem from the profusion of vague and subjective terms in British law (terms such as “insult,” “alarm,” and “distress”), the product of which is that “hate speech” becomes whatever the person employing it as a bludgeon says it is; and 2) that the British seem not to care too much about the erosion of their foundational liberties, preferring to debate practicalities rather than principles.

To my delight and surprise, a prominent Brit has stepped up to the plate. To my even greater delight and surprise, he did so by contending in the Guardian that current speech law is

so loosely worded that it invites…abuse. That is why a campaign to reform section 5 was recently launched by an unusual coalition of Christians, atheists, gay rights activists and politicians of all stripes. But if we want a transparent, secure platform for freedom of expression in Britain, we need to go further.

Section 5 of the 1986 Public Order Act says a person “is guilty of an offence if 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, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.

There are two things wrong with this catch-all wording. First, unlike section 4 of the same act, and Britain’s legislation on incitement to hatred on grounds of religion or sexual orientation, it does not require evidence of an intention to cause harassment, alarm or distress. The standard is just “likely to”. Who decides what is “likely to” be caused harassment, alarm or distress? On the street, the police do.

These are the words of Timothy Garton Ash, a historian and professor of European Studies at Oxford University — and a fellow at the Hoover Institution to boot. Being a borderline free-speech absolutist who is yet to be convinced about the propriety of a free country instituting even libel and slander laws (and who remains lukewarm to hackneyed “‘fire’ in a crowded theater” arguments), I would that Garton Ash had gone further and asserted flatly that the British government simply has no right to arrest people for speaking. Nonetheless, it’s nice to hear somebody take the argument back from the clutches of those who speak weakly of “balancing” liberty with civility — as if they were equal claims — and instead discuss the basic principle of the thing.

#more#Time and time again, British journalists have been reluctant to regard creeping authoritarianism as self-evidently absurd. But Garton Ash does not shy away. Instead, he asks the rhetorical question of whether singer Tom Jones should have been arrested for singing a “song about a guy who murders his girlfriend in a jealous rage” at the Queen’s Jubilee concert, before contrasting it brilliantly with other cases that did lead to arrest:

Don’t be absurd, you say. But would it be any more absurd than a  student being arrested under section 5 for saying to a mounted policeman: “Excuse me, do you realise your horse is gay?“, or the 19-year-old Kyle Little, charged and convicted – though then cleared on appeal – for delivering what was described as a “daft little growl” and a woof at two labradors? Or a 15-year-old summonsed for holding up a sign outside the Church of Scientology’s central London headquarters saying: “Scientology is not a religion. It is a dangerous cult“? (I repeat those exact words here, as my own. Officer, you know where to find me.)

Then there was the gay rights campaigner Peter Tatchell, arrested and charged for shouting slogans and displaying placards condemning the persecution of lesbian, gay, bisexual and transsexual people by Islamic governments, during a protest at a Hizb ut-Tahrir rally. And an evangelical Christian preacher who was convicted and fined for holding up a home-made sign that, beside the motto “Jesus is Lord”, proclaimed: “Stop immorality, stop homosexuality, stop lesbianism.”

All these are real cases of British police abuse of a law so loosely worded that it invites such abuse. That is why a campaign to reform section 5 was recently launched by an unusual coalition of Christians, atheists, gay rights activists and politicians of all stripes. But if we want a transparent, secure platform for freedom of expression in Britain, we need to go further.


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