One of the most pernicious means by which restrictions on free speech have grown tighter in recent years has been through the use of incitement laws, both incitement to hatred and incitement to violence and murder. In some cases, as in the outlawing of incitement to religious hatred through the Racial and Religious Hatred Act, the law is being used to censor genuine debate. In other cases, incitement law is being used to shut down protest, as in the recent convictions of Muslim protestors Mizanur Rahman and Umran Javed for inciting racial hatred and ‘soliciting murder’ during a rally in London against the publications of the Danish cartoons.
Over the past decade, the government has used the law both to expand the notion of ‘hatred’ and to loosen the meaning of ‘incitement’. Much of what is deemed ‘hatred’ today is in fact the giving of offence. And the giving of offence should be viewed as a normal and acceptable part of a plural society.
But what of cases where someone has clearly crossed the boundary between causing offence and fomenting hatred? Such speech should not be banned either.
Free speech for everyone but bigots is no free speech at all. The right to transgress against liberal orthodoxy is as important as the right to blaspheme against religious dogma or the right to challenge reactionary traditions.
In any case you cannot challenge bigotry by banning it. You simply let the sentiments fester underground. As Milton once memorably put it, 'To keep out evil doctrine by licensing is like the exploit of that gallant man who sought to keep out crows by shutting his park gate.'
Hatred, of course, exists not just in speech, but can have physical consequences. It can lead to racist attacks or anti-gay violence. The law can and should criminalise the planning and instruction of acts of violence. But there has to be both a direct link between speech and action, and intent on the part of the speaker that that particular act of violence be carried out. In ordinary criminal cases, incitement is, rightly, very difficult legally to prove. The burden of proof should not be loosened just because hate speech may be involved.
Muslim protestors who chant 'bomb, bomb Denmark' or 'behead those who insult Islam' may be moronic and even offensive. But the idea that they are inciting murder is equally moronic and offensive to our intelligence. People do not respond to words like robots. They think and reason, and act upon their thoughts and reasoning. Bigots are, of course, influenced by bigoted talk. But it is the bigots who must bear responsibility for translating talk into action. In blurring the distinction between speech and action, incitement laws blur the idea of human agency and of moral responsibility.
Laws that prohibit incitement to hatred should be scrapped. As for incitement to violence or murder, the law in relation to hate speech must be as tightly defined as it is in ordinary criminal law.