Dispatches from the Creation Wars

More on UK Anti-Gay Speech Case

Volokh linked to a PDF file with the actual text of the flyer that the minister they arrested was handing out at a gay event in Wales. I agree with Eugene that it’s about as non-offensive as a flyer expressing those opinions could possibly be. It doesn’t rant and rave at gay people, it just lays out their views based on their interpretation of what the Bible says about homosexuality. I disagree with those views completely, of course, but I cannot for the life of me understand why the British government thinks there is any cause for even batting an eye at it, much less arresting someone and violating their rights. Volokh writes:

I certainly don’t agree with the moral views expressed in the leaflet, but my sense is that this is probably about as calm, polite, and reasoned a way of expressing those views as is possible. Of course many people would still find it offensive, because of the ideas that the speech expresses; but preventing such speech really does requiring suppressing the ideas, rather than just insisting that they be expressed in less incendiary ways. If the distribution of such speech is illegal in England, then English law has indeed gone a long way to undermining the ability to discuss such moral matters.


It certainly has. And it highlights the problem with hate speech laws in general. A law that makes it illegal to utter “‘threatening, abusive or insulting words” is inevitably broadened, at least with respect to certain protected groups, and it is inevitably targeted only against one side. Calling an anti-gay Christian a bigoted moron (and I do so often, though not in all cases) is, objectively, much more of an insult than merely citing moral disapproval of something. Yet you never hear of such laws being used to stifle that sort of speech, only speech aimed from one side and not the other.

And again, I think that’s inevitable. And if the law is going to be applied this broadly, is there any criticism of anything that could not be deemed equally insulting and therefore illegal? We simply should not allow government to police speech and ideas in this manner, deciding what is and is not “insulting”. There is simply no way of doing so in an objective manner, and the result is invariably to make the expression of certain ideas forbidden.

Comments

  1. #1 SteveF
    September 13, 2006

    Recently, in Scotland, there was a case in which firemen refused to participate (namely handing out safety leaflets) in a Gay and Lesbian parade. In response, they were sent for Stalinist sounding ‘Diversity Training.’

    I’m all for calling a bigot a bigot, but this is too much.

    http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/5301334.stm

    http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/09/01/npride01.xml

  2. #2 Ginger Yellow
    September 13, 2006

    “Calling an anti-gay Christian a bigoted moron (and I do so often, though not in all cases) is, objectively, much more of an insult than merely citing moral disapproval of something. Yet you never hear of such laws being used to stifle that sort of speech, only speech aimed from one side and not the other.”

    Well, you do in the UK. That said, there has been a spate of these things in the last year or so. I don’t think it’s tied to any new law (unless you count the Human Rights Act as new), but rather guidance given to police by the Home Office to clamp down on hate speech and hate-aggravated violence (if you see what I mean). Basically the police now feel they have to swoop on these things, regardless of whether there’s any real lawbreaking. 9 times out of 10 the arrestees are released without charge. Of course, this situation is still unacceptable.

  3. #3 James
    September 13, 2006

    That was a totally different situation. By refusing to hand out the leaflets they were refusing to do their job. If they didn’t want to do their job they should have resigned.

    Gay people have the same rights to public services as anyone else. If a gay persons house was on fire should they be allowed to refuse to put it out?

  4. #4 Ginger Yellow
    September 13, 2006

    Steve,

    Do you really think that’s “too much”? The firemen involved were refusing to do their jobs. Their jobs are to protect the public, whoever the public happens to be. As the spokesman for the Strathclyde Fire Service says:

    Firefighters cannot, and will not, pick and choose to whom they offer fire safety advice. Strathclyde Fire and Rescue has a responsibility to protect every one of the 2.3m people it serves, irrespective of race, religion or sexuality.

    Surely that’s right.

  5. #5 Tom
    September 13, 2006

    Actually, when reading the specifics of the act involved he’s not being charged with using “threatening, abusive or insulting words”, but rather more specifically with using those to INTENTIONALLY harass or cause harm. Harassment, harm and intent are a lot harder to broaden as I believe they have definate legal definitions though I could be wrong. In order to be convicted the prosecution would have the burden of showing that he fully intended to cause harm to those around him. According to the act a successful defense would be to show “that his conduct was reasonable” or that he had no reason to believe that he would cause anyone distress or harm by his actions (He was after-all trying to ‘save’ them).

  6. #6 Matthew Young
    September 13, 2006

    I am absolutely with Ginger and James on the firefighters – they do not get the right to pick and choose to whom they offer their service. Imagine this instead: ‘I am not handing out leaflets at the Special Olympics’. Does that make it sound bad? How about ‘I am not handing out leaflets to those damn niggers’? Is that bad enough yet? I fail to see the difference between the three positions, myself.

    As to the religious hatred, Ed is absolutely right in this case, but there is a little context for this in the UK. Several Muslim clerics – most infamously a chap called Abu Hamza, but there are/were others – were basically preaching jihad against the evil English and telling his followers to go out there and bomb the people in the country in which they were all living and to give their lives to inflict punishment on the nation, and all sorts of stuff like this.

    Basically, the police’s general attitude was to leave him in peace so they could a/ keep an eye on him and what he was saying and b/ keep a close watch on the people to whom he was saying it. Public opinion, as ever with the helpful participation of The Sun and The Daily Mail and other variations on the Hitler Youth Daily Newsletter we please ourselves to call newspapers in this country, eventually reached a point of excitement that the police decided to charge him with incitement to religious hatred and a few other things.

    The problem then became obvious when Muslim groups responded by levelling the same charges at the anti-Muslim opinions (some sensible, some deranged) that were being voiced around the country at various levels and people found it very hard to pinpoint a quantifiable difference bewteen criticism and incitement to hatred.

    Consequently you have the situation where someone completely over-reacts and prosecutes someone exercising free speech, but people preaching death to either Muslims, gays or British people in general can sometmes get away with it for ages – no-one seems able to draw the line with any confidence at the moment.

  7. #7 SteveF
    September 13, 2006

    Fair point chaps, although the notion of Diversity Training still concerns me.

  8. #8 Matthew Young
    September 13, 2006

    It does sound Orwellian as hell, doesn’t it.

    You WILL like the gayboys. You WILL, you WILL, you WILL! And if you don’t, we’ll just keep shouting at you until you change your mind!

  9. #9 Ginger Yellow
    September 13, 2006

    Fair point chaps, although the notion of Diversity Training still concerns me.

    Sheesh, it’s better than firing them, isn’t it? And what about “the solution to speech you don’t like is more speech”? In practice these “diversity training” or “racial awareness” sessions are faintly ludicrous, but then so is health and safety training. It doesn’t mean they’re not worthwhile.

    Incidentally, Hamza was charged and convicted of incitement to racial hatred, not religious hatred, among other things including solicitation to murder.

  10. #10 Matthew Young
    September 13, 2006

    Incidentally, Hamza was charged and convicted of incitement to racial hatred, not religious hatred, among other things including solicitation to murder.

    Ah, sorry. Either way, though, he was nicked!

    The big problem with Diversity Training is that I am not sure you can talk these things out of people. Short of, say, spending a lot of time around gay people and realising that they are perfectly normal after all, does anyone think it’s really possible to talk someone out of these feelings of hostility.

    You can, of course, point out their legal and professional obligations, but as to actually changing their minds…? I am not sure.

  11. #11 Ed Brayton
    September 13, 2006

    If one is making threats, that should be illegal regardless of whether it’s based on religion, race or just personal animosity. Clearly you can police that sort of thing without arresting ministers for expressing their faith in an entirely non-threatening manner.

  12. #12 Matthew Young
    September 13, 2006

    Indeed, Ed, but it is easy to read a lot of religious texts as preaching violence, death to unbelievers, stoning, eye for an eye, and all sorts of things. Of course, it’s easy to read them as the exact opposite, but you can make a case that forbidding preaching the death of unbelievers of any religion is actually forbidding the teaching of that religion and hence discrimination of some sort.

    Not that I don’t agree with you, but you can’t ban the making of threats or the tacit approval of violence without clashing directly with increasingly popular, militant interpretations of religious teachings.

    Personally, I would be entirely happy to say that where religious teaching clashes with the law of the land it is illegal to preach it, but that is in danger of sounding highly anti-religious, as well as treading a little on freedom of expression issues. It is also likely to cause controversy when applied to Christianity instead of Islam.

    And also, as suggested but not embodied by the case here, it is possible to repeatedly state ‘you gays are evil sinners and you are going to roast in hell and torture for all eternity’. This is a bit of an indirect threat, but a threat nonetheless and can also be expressed in a very threatening fashion. But to make issuing this threat illegal is pretty much to make Catholicism illegal, if I’m not much mistaken. It would certainly make a lot of mainstream religious teaching illegal.

    No answers, sorry, just questions…

  13. #13 Inquisitor
    September 13, 2006

    Stephen Green isn’t really “expressing his faith”, though – he’s Britain’s closest equivalent to Fred Phelps, only slightly less loathsome (and only slightly).

    He’s a publicity hound with an enormous persecution complex; he protests at abortion clinics, and has a big vendetta against the “Jerry Springer: The Opera” musical (which features dream sequences he claims to be blaspemous.) This has included nasty “YOU WILL GO TO HELL!” picketing, phone-blasting the BBC when they tried to show it, plus mass-emailing out the addresses and phone numbers of various BBC heads of department, similar letter campaigns forcing supermarkets into withdrawing the DVD from sale, and actually threatening a childcare charity in order to make sure the charity didn’t accept a donation from the musical’s producers. This is not just some misguidedly homophobic local vicar – this is a campaigner.

    Unfortunately, we’ve managed to feed said persecution complex by stupidly, stupidly, stupidly charging him. Gah.

  14. #14 Ginger Yellow
    September 13, 2006

    And also, as suggested but not embodied by the case here, it is possible to repeatedly state ‘you gays are evil sinners and you are going to roast in hell and torture for all eternity’. This is a bit of an indirect threat, but a threat nonetheless and can also be expressed in a very threatening fashion. But to make issuing this threat illegal is pretty much to make Catholicism illegal, if I’m not much mistaken. It would certainly make a lot of mainstream religious teaching illegal.

    Well Britain does have an established church, you know, so it wouldn’t be out of keeping. Catholicism was illegal until relatively recently, by British standards, and it’s still illegal for the monarch.

  15. #15 Ed Brayton
    September 13, 2006

    Inquisitor-

    It doesn’t matter how loathsome you and I think he is, he did nothing in this situation that should be illegal anywhere. Loathsome people still have the same rights the rest of us have.

  16. #16 Tom
    September 13, 2006

    Ed –
    “he did nothing in this situation that should be illegal anywhere.”

    How do you know this? simply from the reports in the Daily Mail and on his website? There could be plenty that’s not been reported or there might not… but simply from the scant information found on the internet I certainly couldn’t really claim to know much of the details in this case. On the 28th we’ll find out just what sort of case the police have and whether a harassment charge is justified or whether the police misused a law intended to protect people simply to remove a protester. If the latter is the case we’ll find out whether they can get away with that in a magistrates court and if so how little actual evidence they need to restrict peoples rights and secure a conviction… or not.

  17. #17 Ed Brayton
    September 13, 2006

    Tom-

    I’ve seen the text of the flyer he handed out, and I’ve seen the statements of the police that the only reason he was arrested was for the content of those flyers. They admitted to the newspaper that he had not threatened anyone or acted inappropriately, that in fact he had followed their directions and left the actual event and was simply handing out flyers outside the grounds. Unless the police are lying, my conclusion is on perfectly solid ground.

  18. #18 Tom
    September 13, 2006

    or the paper made that quote up. it wouldn’t be the first time, i’ve had my name put to fictional quotes before without permission. I haven’t found a first-hand quote from the police yet. Can you link to the police statements you’ve found, i’d like to have a look.

    “They admitted to the newspaper that he had not threatened anyone or acted inappropriately”
    Well, to convict on the charge they should have to show that he did act inappropriately and indeed intend to cause harm or distress. something doesn’t add up but even if it is the police who are at fault it doesn’t follow that that part of the act is wrong or the government are policing speech merely that the police have acted inappropriately. If that is the case then hopefully the verdict will demonstrate to the police exactly how violating their actions were and they can’t get away with it in future.

  19. #19 decrepitoldfool
    September 13, 2006

    I’ve been to ‘Diversity Training’ for my job, and it is a loathsome thing. Best thing a white male can do is sit very quietly with a reverent look of approval on his face, nod occasionally and collect his certificate for the file.

    The firemen who wouldn’t hand out fire-safety tips at the gay parade were guilty of poor customer service. If they worked at a store, and refused to wait on gay people, what do you think the outcome would be?

  20. #20 Ed Brayton
    September 13, 2006

    Tom-

    I reject the entire notion that expressing one’s beliefs should ever be a crime. The whole idea that if one expresses their belief with the “intent to cause harm or distress” they’ve broken the law is nonsense in my view. I express lots of opinions that cause others distress. That’s not a crime, it’s an inevitable result of having the freedom to express our opinions and the government has no legitimate authority to change that.

  21. #21 Tom
    September 13, 2006

    I think the legal definition of distress is different to the colloquial one you’re using though I may be wrong.

    “The whole idea that if one expresses their belief with the “intent to cause harm or distress” they’ve broken the law is nonsense in my view.”
    Do you think freedom of expression should protect freedom to cause harm to others? (Not that i’m suggesting Mr. Green caused harm to others as I’ve already noted)

    “and the government has no legitimate authority to change that.”
    I believe that’s why the act in question says it doesn’t overrule the ECHR.

  22. #22 Ed Brayton
    September 13, 2006

    Tom wrote:

    Do you think freedom of expression should protect freedom to cause harm to others?

    I don’t believe expression can cause any harm to others that is actionable. Being bothered by someone else’s opinion is not a tangible harm. If we are going to punish people for speech that upsets someone, there is no possible end to it. The minister says that being gay is horrible and his opinion causes distress to someone. That person says the minister is an ignorant bigot and that causes distress to him. None of this is the government’s business at all. The government’s job is to protect a person’s rights, not their feelings.

  23. #23 Tom
    September 13, 2006

    I think there needs to be separation of his charge from his actions. The two may not match and in that case he’s been wrongfully charged. Has he been charged with causing distress solely with his opinion? I don’t think so, that’s not what i believe the law says, but I think you’re reading that meaning into the law based on his actions – the two may not match. I’m not saying that his rights haven’t been violated but i think that further conclusions are both premature before the court hearing and based on not enought fact. Come the presentation of the evidence and the result and you’re proved right I’ll join in the outrage. I’m always looking for excuses to write to my MP.

    I think it always takes court cases like this for these things to become evident and for things to change. In a way I welcome this case because we’ll get to see what the courts think and which way the wind blows and if it brings to the publics attention deficiencies in the law as it stands thats a very good thing. Of course it’s possible the whole thing may get thrown out by the magistrate.

  24. #24 Matthew Young
    September 14, 2006

    None of this is the government’s business at all. The government’s job is to protect a person’s rights, not their feelings.

    Yes, but a lot of racial, sexual and religious cases are brought based on hurt feelings rather than actual, tangible harm being caused.

    There are even civil cases fought successfully on this basis, are there not? Emotional distress and the like do seem to be valid bases for legal action (not, of course, as in this case, a criminal charge). I am not agreeing with any of this, but there do seem to be precedents.

  25. #25 John McAdams
    September 14, 2006

    Tom,

    In order to be convicted the prosecution would have the burden of showing that he fully intended to cause harm to those around him.

    The problem is, it’s increasingly definded as “causing harm” when you hurt somebody’s feelings. Thus if you hurt the feelings of gay students by saying you believe homosexual acts are sinful, officials are allowed to shut you up.

    That’s the standard that U.S. public schools often apply.

    On a slightly different but related issue, gay lobby folks have become quite explicit in saying that they have a right to shut up speech contrary to their preferred policy positions.

    http://mu-warrior.blogspot.com/2006/09/marquette-gaystraight-alliance.html

  26. #26 Ed Brayton
    September 14, 2006

    Matthew Young wrote:

    There are even civil cases fought successfully on this basis, are there not? Emotional distress and the like do seem to be valid bases for legal action (not, of course, as in this case, a criminal charge). I am not agreeing with any of this, but there do seem to be precedents.

    As you note, those are civil and not criminal. But even in those cases, the standard is much higher than merely hurt feelings. The only time you see those kinds of rulings, it’s for intentional infliction of emotional distress, and the standard is much higher. It applies in cases where someone goes out of their way to torment a specific person in highly unusual ways, not to cases where someone merely offers their beliefs and someone doesn’t like those beliefs.

  27. #27 Ed Brayton
    September 14, 2006

    John McAdamds wrote:

    That’s the standard that U.S. public schools often apply.

    Unfortunately, campus speech codes are the one place where the US comes close to adopting the sorts of anti-free speech policies we’re seeing in so many of our allies. I am for doing away with them entirely and I strongly support the Foundation for Individual Rights in Education, which fights for free speech on college campuses. Is Marquette a public school or a private one? If it’s public, someone needs to file a suit against their speech code. There is a 7th circuit precedent for it involving the University of Wisconsin (it was never appealed, so it didn’t become a broader precedent). There is also one in the 6th circuit involving the University of Michigan.

  28. #28 kehrsam
    September 14, 2006

    There are even civil cases fought successfully on this basis, are there not? Emotional distress and the like do seem to be valid bases for legal action (not, of course, as in this case, a criminal charge). I am not agreeing with any of this, but there do seem to be precedents.

    Even with intentional infliction of emotional distress, there must be a finding of actual physical harm. Absent harm, no damages, no matter how outrageous the conduct.

    There is a famous case of NEGLIGENT infliction of emotional distress involving a corpse, missing legs, and a hundred-year flood (honest!). No physical damages were required in that instance, but cases like that don’t come around every day.

  29. #29 Tom
    September 28, 2006

    http://news.bbc.co.uk/1/hi/wales/5388626.stm

    “Anti-gay leaflets charge dropped”

    Well, that’s a pity because the police get to say things like this now..

    “South Wales Police force has defended its handling of the case, saying the CPS decison not to go ahead with the presecution of Mr Green due to insufficient evidence did not “challenge the legality” of his arrest.”

    ..without really finding out if that is the case or not in court! Hmmmmph!

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