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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