Hate speech: the Denning Solution

The Law Commission have discredited themselves into irrelevance. The Police have lost the respect they need to bear authority. Power has passed to the unaccountable. Lord Denning had a solution ahead of his time to define what is truly hate-speech worthy of the law’s attention.

The tussle between freedom to speak and the maintenance of order is an old one, maybe as old as speech itself. The first Stone Age tribal chieftain who clubbed underling for speaking out of turn began an age-long train of action.

Not so long ago, freedom of speech was limited even in Britain, but there was liberty enough to grumble against it, and juries were not so willing to convict their neighbours for speaking against what the government or polite opinion insisted upon. The main crime of expression was one against the written word only: ‘seditious libel’, and on this charge many pamphleteers was put before a jury for insulting the King’s ministers and sowing dissention against the lawful authorities.

In the latter half of the twentieth century Lord denning expressed his opinion of the offence:

The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects. But this definition was found to be too wide. It would restrict too much the full and free discussion of public affairs…So it has fallen into disuse for nearly 150 years. The only case in this century was R. v. Caunt…when a local paper published an article stirring up hatred against Jews. The jury found the editor Not Guilty.”

The Caunt case he quotes concerned a shocking editorial in a local newspaper: in 1947, the editor of the Morecambe and Heysham Visitor published an article virulently attacking all Jews and suggesting that violence against them would be understandable; and this just two years after the death camps had been opened. It was written as a response to the Jewish Insurgency in Palestine, making no distinction between the rebels in the Levant and Jewish people generally – its key paragraph would get any journalist sacked and disgraced from any respectable newspaper today, or promoted in the Guardian. It may have been a cause of anti-Jewish riots that followed in Liverpool. Nevertheless, the jury acquitted the editor, because free speech was more precious to them.

The acquittal burst the idea that racial hatred could be restrained by the law of seditious libel, and in time the first Race Relations Act was introduced. It made explicit as a crime to stir up racial hatred. That is not a problem for anyone: today’s issue is in imagined interpretations of the much later Equality Act, unwarranted extensions of the McPherson recommendations, and a hedge built about the law by those with a deeper agenda.

Lord Denning’s summary of the law of his time was perhaps a personal one, as ‘seditious libel’ was a common law offence not defined in statute, but is much quoted abroad, where sedition is still a live topic.

Denning’s summary gives us a what may be though the ideal standard not just for speech against races but against any portion of the population, whether one of the narrow categories of the Equality Act or any other group which has attracted the ire of an ill-disposed speaker, to persecute any minority or majority:

words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects

That should be simple enough, and it should be enough: stirring up violence. That said, the coda, in the idea of “ill-will or hostility” is itself very broad, which might be what made the old law a dead-letter in the hands of a jury. Political rhetoric today (on one side at least) is dominated by accusing opponents as a class of being fiends in human form, which is improper and to be condemned socially but finding the policeman’s boot at the doorstep of every Labour or SNP activist its likely to bring the law into disrepute.

The law steps in where it is necessary to protect society each individual in the society it governs, and guard the social bonds which keep order in that society. In a totalitarian society those bonds may be drawn tight and inflexible, but a free society needs elasticity, and that means mutual tolerance of originality and plain rudeness. It only steps over the line when actual violence is threatened. That is where a law of sedition has a place. In the Denning formulation then, the essence of what should be forbidden is “words intended to stir up violence”: the promotion of feelings of hostility is the method whereby violence is stirred or made more likely, not an additional offence: “promoting hostility such as to stir up violence”, not stirring up violence or promoting hostility.

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We cannot win on social media

Social media belongs to the angry, the malicious, the conspiracists, the unreasoning corner of the brain. There is no point in discussing how to convert it to rationality any more than to moderate a rabid dog. Rage beyond the edge of sanity is fundamental to its nature.

Nutters will dominate social media because they are less likely to have settled jobs and responsibilities.  They have the time and presumably little sense or they would have jobs (or they are academics, which comes to much the same thing).

There is no need to recite yet again the ills of social media; the slanders, the wounding insults, the depersonalising expressions of hatred, the incitements to hatred or to violence (which are not the same thing), the threats. The conspiracy theories, well, those are a whole new topic. We know all this. There are articles aplenty on it, electronic jeremiads, bewailing the contents of YouTwitFace or whatever.

The big players of social media take the overwhelming bulk of traffic, though a discussion board or social exchange medium may turn up anywhere, for local groups. Where it is among friends, they will write rationally because they are known and judged by their peers; or there is the wilder tavern gossip we love which goes far beyond any moderation, because we are liberated from talking sense, and we know we do not mean a word. The internet takes it beyond even this. An anonymous board is licence for every explosion of the brain, and that dominates – be it on Twitter, Facebook, the BBC HYS columns, and many more.

This does not apply to profession fora where contributions are from those who putting their professional reputations and those of their companies on line in front of their potential customers and suppliers. You won’t get ‘Q’ trying to whip up crowds on LinkedIn, There is the distinction: the constraint of enforced respectability against the liberating sense given by anonymity.

There are many articles asking what can be done to clean up social media. My answer is ‘little or nothing’. We know what goes on, and what we also know, but do not want to admit is that all this is just a reflection of humanity. It Twitter is a sewer, it is simply because it reflects mankind.

Nutters will dominate because they are less likely to have settled jobs and responsibilities. The Devil makes work for idle hands: so does ‘Q’ apparently. Things said online have no consequences so there is no limit to what can be said, whether you believe it or not, and it could become addictive. Actions without consequences can be a dizzying liberation, as they were to the Washington crowd last week, right up to the moment that a shot rang out and Ashli Babbitt fell dead. That moment marked a sudden change in their dynamic, as it was the first time that a real world consequence struck, and with deadly force.

A way then to moderate, control or even eliminate the abuse of social media? There is none, while it lasts in its current form. The platforms might try to become active publishers, picking and choosing contributions, and they know that would kill their customer base and their business model.

Regulation of some sort would be barely different, and drawing the distinction between vigorous free speech and dangerous incitement is not something which I would entrust to any politician, frightened official or social media magnate.

(You must also ask yourself what sort of person would volunteer to be ‘Controller of the Internet’, and whether you would allow a person of those characteristics anywhere near the levers of power.)

If anyone wants to start fighting falsehood and conspiracy theories on social media, go ahead, if you have the time and resilience. Do not start though with things like QAnon, which is just too ridiculous, but with the most pernicious and commonplace conspiracy theory; the one which preaches that all your misfortunes are caused by rich people hoarding all the wealth to keep you down. Sometimes there is a racial slur added to it, and we all know where that leads. Can the champion of truth react to every post or tweet about ‘fat-cats’ and ‘Tories’, and who should do it? What fact-checker sites can be established to direct those caught in the delusion? It is a political issue, for politicians, and that is how they should be working.

Social media will continue though to belong to those who have too much time on their hands and no responsibilities. Bringing calm reason to bear with the aim of creating a space for respectful collaborative development of ideas is an impossible dream.

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Surrendering on the playing fields of Eton

The Battle of Waterloo was won on the playing fields of Eton, but would be surrendered if the relics of the Blairzeit now in command had their way. If they remain, the school’s reputation will not. The school famed worldwide for bringing boys up into the best of men is now committed to turning them into pathetic milksops. The boys may have other ideas of course.

I have always enjoyed the metaphor. The officers at Waterloo and at many battles over our long imperial history have been solid men, wedded to hardship and duty. A background of wealth might have dried up the manly qualities in ease and dissipation, as it did in many disgraced dukes, but places like Eton ensured the inculcation of those qualities of understanding and character on which a nation could be built, and those are the qualities which cool-headedly shepherded thousands in precision at Waterloo through hours of cannon, musket and lance, and drove the French back to Paris.

(There is actually room to fit a major battle on the playing-fields of Eton, if not one the size of Waterloo: so extensive are the collage’s lands that you can walk for an hour and still not be at the end of them.)

The character of a man is wrought through endeavour and experience, and more endeavour, but the seeds may be sown in his first experience of organised society, amongst his school-chums, and where he learns that there is more than himself in the world

And it’s not for the sake of a ribboned coat.
Or the selfish hope of a season’s fame,
But his captain’s hand on his shoulder smote
“Play up! Play up! And play the game!”

The actual scandal at Eton now has been reported in enough fora, erupting from a pretty unexceptional video put up as part of the College’s ‘Perspectives’ course, and the Headmaster’s desire to suppress it (with the result naturally that thousands more people have seen it in just a few days than were ever supposed to be aware of it).

The Tribunal hearing which must come will turn on dull legal grounds rather than the worthiness of the video in question – it would have been interesting to see a tribunal’s terrified chairman trying to consider socio-political doctrine opposed to truth, but a way will be found around that; that the master in question, Will Knowland, was dismissed for the fashionable ‘gross misconduct’ presumably for refusing an order, but behind it is a deeper conflict.

The Headmaster (so I read) has framed his reasoning along the lines of avoiding embarrassing the College, but the infamy of his intemperate action has dragged the College’s name through the mud publicly, and publicised the very material he sought to suppress. With such maladroit strategic insight, it is as well that his sort were not commanding at Waterloo. The boys are not so daft.

The outrage, or perhaps confected outrage, is that the video, “The Patriarchy Paradox”, has a straightforward denial of two concepts in cultural Marxist theory: the idea that the only differences between men and women are culturally determined, and secondly the concept of the oppressive ‘patriarchy’. Both those ideas are so comprehensively wrong that it should take upholding them is generally a sign of idiocy, blind ignorance, malice or (most common of all) fear. Granted the ‘patriarchy’ concept is a matter of perspective and emphasis: its root failing is that it is a development of the Marxist class-struggle narrative and clings to the same pseudo-science. However that is a minor subject. The main issue of the video is the differing characteristics of women and men.

That men and women are (as statistical averages) different psychologically is practically universally accepted by all serious experts in the field. There was a book out recently by a feminist denying it by claiming all the countless experiments and mountains of data had inherent flaws, but this libel upon the scientific community is not a serious study, and was politely torn apart by Simon Baron-Cohen soon after publication.

Essentially, to proclaim the idea that there is no gender dimorphism in psychology and that apparent differences are culturally imposed is as ludicrous as teaching such past pseudo-scientific ideas as “scientific racialism” or phrenology or astrology: to do so make you a laughing-stock.

Yet the Headmaster (apparently) took the view that the law requires that specific doctrines, blatantly false though they are, must be taught in what used to be the country’s most prestigious school. I have read the Regulations cited, and there is no such idea, not even hinted at. Does the Headmaster of Eton, of all places, really think that the law is so stupid? Who has advised him?

Let us be fair: the Headmaster of what was until his time the most respected school in the land is no fool: he is an intelligent, educated and no doubt erudite man. Many are who seem to bow to the fakeries arising from cultural Marxism, but the most common reason is fear: fear of being ostracised and removed by unseen hands whom no one has elected and who has not been given such authority. Yet either those hands have names, allowing us to judge their reliability, or they are phantasms of the fearful mind which a good, Etonian mind should dismiss. The Headmaster should in that case have thanked Mr Knowland for leading resistance, and shown some Eton spirit himself.

Maybe we will hear more in the tribunal, if the Chairman indulges the claimant with allowing him to put his case. Perhaps we will hear an attempt at justification of the Headmaster’s position: I would love to hear it. If the tribunal corrects a misconception of the law, all the better for the rest of us. If they decide that falsehood is indeed the law, then there is an opportunity to change the law, and remove those who try to change it back again behind the scenes, and those who try to intimidate Headmasters.

There is more than one master at Eton, and the boys may know more than a distant manager. It is vital for boys to learn robustness and duty, and if they have then this idiocy will wash over them: a middle aged trying to tell a boy what it is to be a boy is like a snail teaching a hare how to run. That Eton spirit is not so easily lost.

The ideologues talk of ‘toxic masculinity’ which is an insult to all men; anyone who talked of ‘toxic femininity’ should be horsewhipped as a fool and no gentleman, but somehow half of humanity has to be insulted (in revenge perhaps for the misdeeds of some men in past generations). If that ‘toxic masculinity’ consists in the qualities for which Eton was once famed, for courage, steadfastness, duty, perseverance, the instinct of the warrior and of the gentleman, then let the world be wrapped in its toxins, for those are half of the qualities which the world needs; the other half are the characteristics of womanhood, which men are less able to achieve. The two together, equal and complementary, are needed to make a world.

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Nicola’s Muzzle – 2

Since I last wrote of Nicola Sturgeon’s Bill to ban speech, more immediate events have seized the attention, but on this bandwagon runs. In that time yet more voices have risen against it. Yet Nicola controls in a presidential manner all the levers of state, and weak MSPs ready to do her will. The threat is very real. I chose to leave writing this until I was out of Scotland and outside her reach.


The ‘Hate Crime and Public Order (Scotland) Bill’ is kept relatively short. It has been promoted as a measure against ‘hate speech’, but goes far beyond even the measures Tony Blair left us with.

I previously wrote about the opening, which has been little commented upon, forcing sheriffs to act outside common sense and conscience. The meat of commentary is on Part 2: ‘Offences relating to stirring up hatred’. Now, for a such a Bill to be promoted by a political party built entirely on stirring hatred up against their fellow countrymen, this is chutzpah indeed. The provisions are beyond humour.

It will be a crime to behave in a threatening, abusive or even merely insulting manner, or to communicate insulting material to another, if with the intent to stir up hatred against a defined racial or national group or even if with no intent if it is likely that ‘hatred’ will be ‘stirred up’. It does not say that SNP branch meetings are exempt, but I would not want to be the constable to tries to arrest the unbridled tongues that do just this at every one.

The clause would ban the Daily Mail and half a dozen other papers from distribution in Scotland, as soon as someone alleges that one of their leading articles has stirred prejudice against foreigners. Stirring hatred against journalists or political opponents is not covered.

Secondly, it will be a crime to behave in a threatening or abusive manner, or to communicate abusive material to stir up hatred, or be likely to, against a number of listed identity groups. It does not here say ‘insult’ here, but that will be added later, the moment an advocacy group in receipt of taxpayers’ money claims it is a hole in the legislation. In any case, ‘abusive’ may mean exactly the same.

The groups covered include the usual suspects, including ‘sexual orientation’ and ‘transgender identity’.

It would be a defence (at least in the initial draft – this may come out) for a person charged to show that their behaviour was ‘in the particular circumstances, reasonable’: that is undefined and I pity the advocate who tries to argue it, in professional terms and also because of the hate mobs who would besiege his chambers afterwards. ‘Reasonable’ by whose standards, or to achieve what? This may be interpreted, in the spirit of the Act, that no behaviour may be adjudged a reasonable infringement of the presumptions the Act contains, leaving no defence.

The major trap hidden in the formulaic words is in the key line ‘as a result, it is likely that hatred will be stirred up against such a group’. Consider it for a moment: it does not say how much hatred is t be engendered by the actions in question: it might be one mad, tinfoil-hatted nut on Facebook who reads words and feels hatred growing in his heart, and that has stirred hatred. Had the words said ‘in a significant portion of the population’ it would be bad but not as bad as this: had it said promoting violence against members of a group that would even seem acceptable, but stirring any hatred at all, that is unavoidable in social commentary.

It is worse than the apparent aim of the wording: it can catch anyone with views someone else does not want to hear. Hatred has to be directed at a group – but the Bill does not say that the speaker had to have that group as a target: he might be a Christian preacher with nothing but love in his heart but by saying something that an angry Woke mob does not want to hear, he has stirred the hatred of the mob against him and against Christians, and so he is guilty, and looking at 12 months in Barlinnie.

So much more could be said, and will be.

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A new muzzle from Nicola

It is as bad as they say. Nicola Sturgeon’s SNooPy has long gagged the press by denying access to those deemed unfriendly, and is now about to enact a muzzle on speech for everyone, in the ‘Hate Crime and Public Order (Scotland) Bill’.

Many a column has discussed and condemned the changes, and I cannot dissent from this: it is a truly sinister Bill. The main charge is that it will gag free speech – and it will do so in ways more effective that the cold wording of the Bill suggests. There is more to it than the gag too.

The defence of the new proposal has been a familiar one, that the law will only prohibit ‘hate speech’ and with the implied threat that to oppose it is to support hatred, but anyone who has not been asleep for the last twenty-odd years will know the reality of such accusations.

Before the gagging provision comes a gentle introduction: Clause 1 of the Bill takes the familiar provision that a crime motivated by racial prejudice should attract a higher sentence and takes it to a new level: it now covers a long list of prejudices and alleged prejudices, and applies if the offender evinces “malice and ill-will based on the victim’s membership or presumed membership” of a group in the long list; even if there is no specific victim. But then it says that “Evidence from a single source is sufficient to prove that an offence is aggravated by prejudice” – not sufficient evidence to suggest but to prove, so if a victim claims mendaciously that the thug who attacked him called out “oi, you [whatever epithet fits]”, that is that. Then Clause 2 gets serious: it is not enough for the sheriff to take this into account while thinking privately “well, he just said a bad word in the heat of the moment”: the court must state the matter in sentencing and say how much lighter the sentence would have been had the bad word not been uttered. Judges, it seems, are not to be trusted. Virtue signalling is something that must not only be done but must be seen to be done.

The main issue though is Part 2: ‘stirring up hatred’, and empowering the police to raid homes and seize unPC material. No one is sage (well all right; no one without the right political connections is safe, and even that can be withdrawn, as Alex Salmond found).

The whole of Part 2 needs a more fulsome description. In essence it will make a criminal offence any insult addressed by reference to any of a long list of characteristics. (That would make every conversation I have ever heard in Glasgow a crime.) It covers actions, publications, mere speech. It specifically targets plays, making the producer guilty, and the actor too. It covers websites anywhere in the United Kingdom.

There are two savings for “Protection of freedom of expression”: religion and sexual orientation, but they are so limited as to be meaningless: the exemption for religion is simply freedom for proselytising (including promoting atheism) and discussing or criticising religion. It does not however permit actual religious teaching, so quoting the Gospel (or the Koran, which I understand can be rather unPC) will still be a crime if the passage in question is insulting to a privileged group. Neither does the Bill contain any licence for scientific examination or for papers which are deemed insulting by self-appointed representatives of the listed groups

It is the actions of these self-appointed representatives which are the danger: they are the insulters and the haters, but they are to be protected while they accuse others, using a damning Act which will effectively allow no defence and will demand heavy retribution.

The breadth of the Bill belies its subtlety in squeezing out all defence. That needs a longer look next week.

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