Firstly, I would suggest the introduction of a safeguard into the Public Order Act 1986 (POA) Part 3A, so that although collectively “inciting hatred” against individuals of religious minority groups is almost always forbidden (as it should be, given that most of its adherents are likely to be innocent), that nevertheless you can impart such statements as “some individuals of x religious group are dangerous”, because the normative assumption we currently have whereby everyone within a particular group is assumed to be innocent is both speculative and detrimental from a point of view of defending freedom of speech. Libelling an entire group or a majority therein should be the only restriction in this regard. However, with regards to the current wording of the law, it may be very difficult if not technically impossible to impart such opinions as “some members of x religious community are dangerous” (even if true), because the generous guarantees for critical discourse under the Racial and Religious Hatred Act 2006 only pertain to criticism of the ideas themselves, not their adherents. The law should make clear, as it did with ideas, that feelings of “antipathy” towards some adherents of such groups are permissible. However, the reform I am suggesting could be sufficiently flexible to prevent such language as “[all] Christians/Muslims are dangerous”, thus catering for the demands of freedom of speech and the pursuit of truth and those of community protection. A truth defence might also achieve a similar level of protection for freedom of speech in this regard, as one does not exist currently for any of the three “incitement to hatred” provisions.
Moreover, there may be limited circumstances where criticisms based on race can be justified, yet this would be inhibited under the POA. For instance, “white/black community leaders are not doing enough to tackle youth crime”. This should not face criminal sanction, because it may very well constitute a criticism based on the truth. Moreover, it may be necessary to engage the attention of relevant community representatives in order to bring about the changes which only they can effectively provide at a grassroots level. However, the current threshold of the POA “likely to incite hatred”, could easily lead to the arrest of anyone imparting such views, even if only intended as a genuinely helpful contribution to public discourse. As a civil libertarian, this troubles me. Therefore, I would suggest an amendment to remove the “likely” threshold and replace it with “advocacy of hatred which at the same time constitutes incitement to cause harm”, or preferably “intentionally stirs up hatred” by itself. The South African constitution utilises the former, and such a threshold would seem slightly more capable of protecting the kind of speech above, yet could still inhibit the public display of the Nazi flag, or the distribution of many racially charged pamphlets. However, only the “intent” threshold could ever fully protect those individuals who wished to make constructive, yet non-hateful criticisms. Section 3A of the Race Relations Act should also be amended as this provides arrest merely for “offensive language” which “violates a person’s dignity”. These stipulations are too broad, and recently turned a councillor into a criminal for calling another a “coconut”. Similarly, the "racially and religiously aggravated" harassment and public order (speech) offences from section 31/32/33 of the Crime and Disorder Act 1998 Act should be removed, as they can potentially make a racist out of any one.
Indeed the problems in section 3 of the POA are greatly aggravated by the threshold of “insulting language”, which has a similarly chilling effect on speech because almost any criticism could be classified as insulting to someone. Section 3 could therefore be bought more in line with section 3A (homophobic, anti-religious hatred) in this regard, which only prescribes arrest for “threatening” language.
The criminalisation of “insult” in sections 4a and 5 cannot be considered acceptable in a democracy, because almost any criticism can count as an insult, and should therefore be removed from both section 5 (which prescribes arrest for unintentional insult), and also 4A (which requires intent).To prohibit the use of “abusive” language without further qualification (as is currently the case) could also have potentially chilling effect on freedom of speech. This is because any abstract, impassioned discussion of a particular issue could find itself caught out, even if this did not constitute a hostile one-to-one confrontation which intuitively is where one would expect such a provision to apply. For example, an abstract discussion pertaining to homosexuality and how “homosexual sex is a sin” could find itself inhibited under such an “abusive” threshold, because to some people, a word such as “sin” might constitute abusive discourse. The lack of “intent” as a requirement for such speech would certainly exacerbate this problem. Therefore, only “abusive language which intends to cause distress” would provide sufficient protections for speech.
The intent would have to be affixed to “distress” (though not “harassment” or “alarm” as they should be removed from the Act – see later), not the “abusive” language itself, because otherwise, speech would not be any better protected than it is at present. (cont)
Why is this idea important?
This is because you may very well “intend” to hold an ‘abusive’ (read “impassioned”) public discourse over a particular issue (by virtue of the fact that you have consciously chosen to stand in a public place and impart your opinions in a passionate manner), though you might not “intend” to cause distress thereby. Nevertheless, you may still find yourself arrested for inadvertently causing distress under the alternative arrangement, because “intent” would not be required of the prosecution if the subsequent emotional response of your audience was one of distress, even if such speech was intended to provide a reasonable contribution to public discourse. However, my “intended to cause distress” proposal could still provide a sufficiently flexible response in that if such language as “homosexuality is sin” was imparted in a manner which intended (within that context) to cause distress, or more explicitly, such words as “you stupid b*stard”, then these could be dealt with by the police. It is unreasonable to assume however that a public speaker can anticipate the emotional response of their entire audience vis-à-vis an abstract discussion.
Nevertheless, such changes would now necessitate a further amendment to the POA that from hereon in, the “abusive” threshold might fail to catch out such statements as “I had sex with your girlfriend last night, she was ‘reeaal’ good” and “are you starting on me? Go on, I dare you”. This is because the word “abusive” (to my mind) would appear to constitute language which is somewhat stronger than this. Accordingly, a new provision should be added to the POA of “personal taunts intended to cause distress”. This could suitably filter out such types of speech, while failing to have any impact on legitimate, yet offensive public speakers.
In order that sale of T Shirts such as “b*llocks to Blair” might be allowed to continue unabated in the future, it is important that swearing is not criminalised in and of itself under changes to this legislation, unless such language “intended” to cause distress. In these circumstances, my “taunts” and “abusive language” provisions could take effect and tackle such speech, for instance, “you f*cking prat”, and yet would continue to protect “b*llocks to Blair” if this constituted nothing more than a criticism of his politics. This would also suitably protect such exclamations such as “Oh sh*t”, which may very well offend some, but would hardly seem worthy of prosecution.
I would suggest that racial, homophobic and religious slurs should be prohibited in their entirety as part of a separate provision, so that the requirement of “intent” in my other provisions does not hinder arrest. However, any “slur” threshold should also require “malice”– to protect discussions such as this.
Realising that “intent” in the abusive threshold may be difficult to prove in all circumstances, even if action against a speaker might be desirable because he/she is causing significantly distress albeit unintentionally, then the only reasonable compromise in such circumstances is to allow the police to “relocate” the speaker, provided that the law stipulates that any new location must also conform to the wishes of the speaker. If we chose to remain with the status quo and continue to provide arrest for unintentional abuse, we will continue criminalise individuals such as Shawn Holes for the unpredictable emotional responses of those around them. This provision would replace the need to criminalise unintentional harassment happens now.
The “threatening” threshold should be amended to ensure that language such as “gay people you are going to hell unless you repent” cannot fall within the remit of the POA, as it currently might. The double threshold of “advocating physical violence” and “language likely to solicit a violent response in the near future” would provide a better test. The “hell” example would no longer satisfy such thresholds (in that “hell” could not itself fall within the realm of the physical), while speech threatening to cause violence could continue to be prevented. Moreover, discussions such as “homosexuality and paedophilia are interconnected”, which have a significant potential to encourage violence against the gay community, could continue to be prevented.
Remove the words “alarm” from the Act. In 2005, a university student was arrested for asking a police officer if he knew that his horse was gay. It can not be reasonably argued that this would have caused the police officer a great deal of “distress”. However, it could be argued that this comment caused “alarm” in the sense of its intrinsic shock value. No one should be arrested for simply “shocking” someone with their words, intentional or otherwise, and accordingly “alarm” should be removed.
Finally, change the law so that only the Supreme Court can rule a demonstration illegal. Currently, this responsibility falls with the Home Secretary under section 13 of the POA, and is potentially open to party political abuse. Put all speech regulations into this Bill, so we know exactly where the parameters lie. Currently, it is almost impossible to know whether your speech is protected, because regulations are spread over a series of Acts of parliament. Moreover, no one should ever face jail unless they intend to incite hatred, intend to cause emotional distress or disorder.