Somewhere, just after Christmas, I saw a Christmas card from across the room. It was a photograph of a couple. The woman looked like Jackie Kennedy. I was intrigued so I asked to see the card. It was from the Nobel Prize Winner, James Watson and his wife of forty years. The card was a celebration of their long marriage. James Watson is famous for having discovered the structure of DNA. Today he courts controversy with his view that black people are less intelligent than white people. A report in The Times of his fairly recent visit to the UK – to publicize his new book – repeated controversial statements he had allegedly made in an interview.
Following on from his comments, his speaking engagement at the Science Museum in London was cancelled. Mr Watson apologised for his earlier comments and said that he had been misquoted. You can read a report of his apology here.
In 2002, on the eve of the first anniversary of 9/11, the artist Damien Hirst said this:
“The thing about 9/11 is that it’s kind of like an artwork in its own right … Of course, it’s visually stunning and you’ve got to hand it to them on some level because they’ve achieved something which nobody would have ever have thought possible – especially to a country as big as America. So on one level they kind of need congratulating, which a lot of people shy away from, which is a very dangerous thing.”
Public outrage followed, and Hirst issued an apology: “I apologise unreservedly for any upset I have caused, particularly to the families of the victims of the events on that terrible day”.
Before we are aware of legal constraints on our ability to speak freely, we are aware of social or moral constraints on what we say. As children we learn that what we say produces consequences for us, and that those consequences are related to the amount of power that the audience has relative to ourselves. Thus we may insult a younger, weaker child out of hearing of an adult, and suffer little consequence, whilst the same insult delivered to an older, stronger child or in the hearing of an adult may well result in uncomfortable consequences of punishment or banishment.
We also learn as children that our words have the power to hurt others. We also hopefully learn that if we hurt some people by our words, it is as if we have hurt ourselves since they matter to us as we matter to ourselves.
Finally, we learn that what we say affects how other people see us. Thus we learn to moderate our speech in order to have those whose opinion we value think well of us. We learn to withhold some information to protect ourselves. We learn that some subjects are not suitable for airing on all occasions. We learn that other people have different opinions to ourselves and may disapprove of our opinions, for all that they are true or defendable.
In short, social or moral constraints on our speech may be voluntary or coercive. We place voluntary constraints on our own speech to ensure that we do not hurt those who matter to us and to keep the good opinion of those whom we revere. Coercive constraints are placed on us by our parents, especially when we are children, and by others having power over us – teachers, for example.
As we get older, however, and more powerful, social constraints may not be sufficient to operate to prevent speech undesired by the majority. Legal constraints become necessary so that the power of the state is wheeled in to take over from the constraining influence of adults.
The right to free speech contained in the First Amendment to the US Constitution is a negative right, not a positive right. That is, it does not provide a right to say whatever you want to say, whenever you want to say it, but it provides that Congress shall not interfere with speech. Arguably this is because free speech is a civil liberty which precedes the Constitution and is not afforded the individual by the Constitution. That is, we are born with the right to self-expression. It is not something we are given.
The constitutional right to speak without interference exists, however, only in relation to the government and not in relation to other individuals. Thus there is no right to insist that a private television company broadcast your views, nor a right to insist that your letter to the local newspaper, or your comment on an internet forum, is published. The decision whether or not to allow publication of your speech is one to be made by the owner of the medium in which the speech is to be disseminated.
Vertical legal constraints operate between the state and the speaker.
Constraints may be “harm based“, without reference to any specific content but aimed at preventing the harm of others, such as the constraints contained in Article 10 of the European Convention on Human Rights or such as criminal provision prohibiting language threatening violence or death.
Or they may be “content-based“, that is, based on the content of the speech itself, irrespective of the harm it might cause. Content based constraints include the restrictions in criminal law on obscene speech or, elsewhere in Europe, prohibitions on denial of the Holocaust.
The United Kingdom has no written constitution as yet. Through thousands of years it has survived on a proud tradition that is the obverse of many countries with a written constitution. In the United Kingdom everything is permitted that is not forbidden. Even more recent Acts of Parliament, such as the Human Rights Act, which purport to grant “rights” to citizens are little more than a codification of rights which existed – often in a wider form – without any statute at all. When the codified rights fail, lawyers revert to the centuries old common law traditions.
Statutory and case law restrictions have been developed particular to ensure that one man’s freedom is not another man’s prison.
There is a long tradition in the United Kingdom of placing a limit on free speech, based on its content. As long ago as 1732, an English court held that a newspaper which made scurrilous allegations against Portuguese Jewish immigrants, resulting in violence against Jews, was seditious because it tended ‘to raise tumults and disorders among the people, and inflame them with a spirit of universal barbarity against a whole body of men, as if guilty of crimes scarce practicable, and totally incredible’.
Since the Race Relations Act of 1965 there have been constraints placed on speech which expresses racial hatred. The offence of “incitement to racial hatred” was created by the Public Order Act 1986. This offence refers to:
- deliberately provoking hatred of a racial group
- distributing racist material to the public
- making inflammatory public speeches
- creating racist websites on the Internet
- inciting inflammatory rumours about an individual or an ethnic group, for the purpose of spreading racial discontent.
The law has recently been extended by the Race and Religious Hatred Act 2006 to cover “religious hatred” as well as racial hatred, so that Islam has the same protection as Jews and Sikhs enjoyed under the earlier racial provisions.
The criminalisation of incitement to racial hatred has not been uncontroversial. There are many on the right and left of the political spectrum who argue that it has a chilling effect and so stifles legitimate debate on subjects such as immigration. From the left, noted human rights lawyers, Lord Lester and Geoffrey Bindman, have argued that the existence of the prohibition has led to racist propaganda being couched in more moderate tones which has led to it reaching a wider audience, and that it diverts attention away from whether the propaganda is factually accurate to whether it is illegal, and that this in turn, diverts attention away from the moral elements involved: the question is reduced to one of legality only (Lester, A., and Bindman, G., Race and Law, Penguin Books, 1972).
It seems agreed that the existence of a prohibition does not stamp out hate speech, though it may result in successful prosecutions in relation to some of the most offensive speech.
Other legal constraints on free speech operate between the speaker and the audience – they are horizontal constraints.
We have to answer to other individuals for the things we say or write about them and the law provides a remedy. The law says that if they believe that our speech is slanderous or libellous it is for us to prove either that our statement is true, or that it is fair comment. It is not libel to write that you do not like someone, but it is libellous to write that they are stupid – unless, of course, you can show that they are and you can show that your statement was made without malice. Malice cannot co-exist with fair comment.
Libel law protects individuals from speech that damages their reputation in the eyes of reasonable people or exposes them to hatred, ridicule or contempt or which causes a person to be shunned or avoided. In the UK libel proceedings are heard before a jury and it is the jury, representatives of the people, that decides whether or not the speech is libellous. The judge only decides on the appropriate award of damages.
The law relating to slander and libel does not protect against abusive speech, or “hate speech”, directed at whole groups of people – minority groups, for example. Vertical constraints must operate to restrict this. At European level, member countries of the Council of Europe have agreed that action must be taken to prevent hate speech since it is contrary to the aims for which the Council of Europe was established.
Hate speech is defined as
“covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin” (Council of Europe’s Committee of Ministers’ Recommendation (97) 20 on “Hate Speech”).
A Greek Court recently convicted an elderly constitutional lawyer, Kostas Plevris, of “inciting actions that could provoke discrimination, hatred and violence against persons and groups of persons, solely because of their racial and ethnic origins”. He had published anti-semitic remarks in a book entitled “Jews: The Whole Truth”.
In the UK the controversial Muslim cleric, Abu Hamza, was convicted of incitement to racial hatred and imprisoned for seven years in 2006.
In 2005 in Sweden a pastor’s conviction for inciting hatred against homosexuals was overturned on appeal.
Judges are called upon to draw the line in the sand for the state.
Having considered the legal constraints on free speech, one is left with the abiding thought that legal constraints only deal with the surface – the visible signs of hatred – at best. Even in a legal system where hate speech is effectively suppressed and rendered invisible, the hatred and prejudice that inspired the speech will still be there, seeking an outlet. This is not to suggest that legal restrictions should not be imposed on hate speech. They should, for all the difficulties of definition they throw up.
But morality precedes the law. Often those who argue that there should be no restriction on free speech are those who are moral relativists. For them there is no right and wrong, no universal morality. God is dead and all is permitted. Their embracing of free speech is but one aspect of a philosophy that refuses to censure anything.
It is the hatred underlying the speech, however, that needs to be addressed. It is unlikely that deep-seated prejudices can be rooted out once the adult is fully formed, especially absent any desire on the part of the adult.
Efforts are best concentrated on our children. As parents, as grandparents, as aunts and uncles, as relatives and as friends, we can influence children and help them to deal positively with their anger so that it does not grow into bitter hatred, and we can help them to discover their own personal power when they feel at their most disempowered. As parents, grandparents, as aunts and uncles, as relatives and as friends, we can look at our own prejudices and try to ensure that they are not passed onto the impressionable children who surround us and look to us for a role model.
It is we who draw the line the sand, not the state. Our morality comes before the legal free speech provisions. Neither James Watson nor Damien Hirst were prosecuted, but both felt the force of moral censure, of the lines that people drew.
McGonagle, Tarlach, ‘”Hate Speech”: growing divergences between European and US approaches?’, Oxford, 2006 http://www.global.asc.upenn.edu/docs/anox06/secure/july20/mcgonagle/20_mcgonagle_presentation2.pdf
[Tarlach and I studied human rights law together, along with the Greek lawyer who – until recently – assisted Panayote Dimitras in the work carried out in Greece by the NGO, Greek Helsinki Monitor. It was GHM who instigated and supported the successful prosecution of Plevris.]
Anne Twomey, ‘Laws Against Incitement to Racial Hatred in the United Kingdom’,  AJHR 5 http://www.austlii.edu.au/au/journals/AJHR/1994/15.html#fn48