John Fitzpatrick explains why even 'hate speech' should be free
You couldn't make it up. In July a black man was fined for 'racially aggravated harassment' of a police officer. Apparently, when a policeman questioned him about the television he was moving down the street he responded, 'You white boys, you arrest black people for anything. You're white trash, you're only doing this because I'm a nigger. Leave me alone, you fucking white trash, leave my black ass alone'. The black man had clearly been labouring under the misapprehension that he was the one on the receiving end of racial harassment. Perhaps he was really convicted for calling himself a 'nigger', for inciting his own 'black ass' to racial hatred.
Two weeks earlier a 78-year old white man, George Staunton, was charged with 'racially aggravated criminal damage' for his graffiti 'Don't forget the 1945 war' and 'Free speech for the English', in support of the UK Independence Party. Luckily for him, his astute solicitor made sure the case was widely publicised and it appears that the charge has now been withdrawn.
These prosecutions were brought under the Crime and Disorder Act 1998, and the first case at least has provoked some curious comment. Peter Herbert of the Society of Black Lawyers said, 'It was never the intention that the legislation was designed to protect white police officers against racism from the black community'. Lee Jasper, of the 1990 Trust and Jack Straw's Race Relations Forum, agreed: 'This case is contrary to the spirit and objectives of the home secretary's legislation.' It obviously comes as a surprise to them that the state is not using its newfound powers in a progressive way. Wake up and smell the coffee.
They presumably applauded the conviction and 12 months' imprisonment, earlier in the same month, of one Neil Roberts for 'racially aggravated fear or provocation of violence'. He rushed on to a football pitch and called a Brighton and Hove Albion player a 'nigger'. The record does not reveal whether Mr Roberts also called himself a 'honky' or referred to his own 'white ass' at the time.
In all three cases there was, before the 1998 Act, more than enough law to punish the alleged activities of these men. If the black man threatened a breach of the peace or obstructed a police officer in the execution of his duty, those very charges are available. If he subjected the officer to insulting or abusive words or behaviour likely to cause harassment, alarm or distress, again that charge is to hand. If Mr Staunton really did daub paint on somebody else's property, a simple criminal damage charge normally fits the bill. As for Mr Roberts: when he hurtled on to the pitch he ran into an arsenal of serious public order and football-specific charges - how about Section 4 of the Football (Offences) Act 1991, 'going on to the playing area'?
These men were not simply charged for what they did, but for what they said. More precisely, they were charged for their ideas - the beliefs and attitudes that motivated and accompanied their acts. It needs to be said again: such offences amount to thought crimes. They are wrong in principle, they will do nothing to protect those on the receiving end of racist attacks, and they set a very dangerous precedent indeed. They will be used to harass black people, to scapegoat white thugs, to sow division between blacks and whites generally, and to heighten the increasingly authoritarian and censorious climate in which we live.
In a free society we should be able to think and say what we like. We are not, however, entitled to assault other people or damage their property or disrupt their games. This distinction between thoughts and words on the one hand, and deeds on the other, is crucial. It is not nice to hear hateful comments but that is the price we pay for free speech. That is not to make light of the effect of insults and slurs, especially on those who also suffer assault and discrimination. It is to emphasise that the free flow of speech and ideas is a critical precondition of any successful struggle against oppression. Words, however hurtful, are still 'only words', however much the opponents of that phrase want to spin them into something else. It diminishes the resilience of our spirits and our capacity for self-respect to suggest otherwise.
Bigoted insults do not contribute greatly to the sum of human wisdom. They do, however, express attitudes that should be exposed and opposed, not repressed into sullen silence. The answer certainly does not lie in taking the blunt truncheon of the law to the heads of those unenlightened enough to harbour unacceptable opinions. This is evasion on a grand scale - reducing the problem of racism to the blurted utterances of those who haven't taken an evening class in New Labourism. We cannot defeat backward ideas by locking people up.
Unfortunately, hate-speech crimes are all the rage, across Europe and the United States especially. Many commentators here seem to think we need more not fewer restrictions on speech, more not fewer categories of division. After the bombing of a gay pub in Soho by what appears to have been an isolated extremist, Peter Tatchell of OutRage! complained that New Labour's refusal to amend the sentencing provisions of the Crime and Disorder Act to cover homophobic attacks gave the impression that it is soft on anti-gay crime. Martin Bowley QC, president of the Bar Lesbian and Gay Group, believes that such an amendment 'would send out a powerful and urgent signal that the government really does believe that we are all entitled to live at peace in a tolerant, inclusive society without fear, harassment or discrimination'.
He does not claim that such an amendment would actually reduce queer-bashing. He says it would send a 'signal' that the government 'really does believe...blah, blah, blah'. Who gives a damn about signals from the government? The government of course. These laws have nothing to do with combating racism or gay-bashing. They are about bolstering the moral authority of the government (while it busies itself hounding immigrants and asylum seekers) and setting ever-tighter parameters on public discourse. They would all do better to heed Sam Goldwyn: 'If I want to send a message, I'll use Western Union.' At least we could choose not to read it.
John Fitzpatrick is director of the Kent Law Clinic and a lecturer in law at the University of Kent
Reproduced from LM issue 123, September 1999