Criminalising free speech only leads in one direction

When I was a child, my Scottish mother used to give me nightmares by reading me a terrifying book about 16th-century witchcraft trials. Given that her favourite play was Arthur Miller’s The Crucible, this wasn’t entirely surprising. The Scottish puritans who burnt almost 2,500 women at the stake were probably of the same stock as the fanatics who settled in Salem Massachusetts, Miller’s setting for his brilliant attack on McCarthyism. 

I was reminded of all this when Scotland’s Hate Crimes Act came into force two weeks ago. The act bans “stirring up hatred”, criminalising words that are considered insulting even if they cause no actual harm. Offenders can be jailed for up to seven years. Citizens are urged to dob in their neighbours at Orwellian reporting centres. Some of the act’s fiercest critics are women’s groups who are angry that it protects transgender identity but not women, and who already feel persecuted for declaring that biology is immutable.

But the main issue is surely this: we voters don’t expect to give parliamentarians the power to tell us what to think, or jail us for what we say. Full stop.

In On Liberty, his seminal defence of free speech, that shrewd old son of a Scot John Stuart Mill warned about the “assumption of infallibility” — being so sure one is right that one takes decisions for people “without allowing them to hear what can be said on the contrary side”.

Mill could have been writing about our own self-righteous era. In Britain and America, some on the left won’t even acknowledge the existence of “cancel culture”, and accuse the right of inventing a culture war. Some on the right are censoring classroom discussion and banning books from public libraries (in the US) or fanning fear of immigrants (in the UK). Recent surveys find large majorities of Americans fear that people are being made too uncomfortable to say what they think. In the UK, one poll found 76 per cent of people saying they had restricted their views in public for fear of harassment. 

The best antidote to prejudice has always been debate and discussion. Now, it’s true that the echo chamber of social media makes this harder — the level of bile against Jews, Muslims and transgender people online is appalling. But it would surely be better to remove anonymity from the mob on social media than create a new anonymous mob, as the Scottish legislation is doing. 

The scheme already seems to be unravelling. Humza Yousaf, Scottish first minister, has been reported to police for saying that the rapist Isla Bryson, who was sent to a female-only jail, was “not a genuine transwoman”. The police are overwhelmed, with more than 7,000 “hate crime” complaints made. Critics worry they won’t have time to investigate other crimes. A Christian vicar has mocked a bizarre and arrogant series of Police Scotland posters including one that reads “Dear Bigots, you can’t preach your religious hate here, end of sermon”. Lawyers are having a field day — which is always a sign of a bad policy. 

What all this makes me wonder is whether we need to stop trying to police offence, and get back to letting people say what they think, unless they are violent or directly inciting violence. Go too far beyond this, and you run the risk not of keeping out prejudice but of simply making ordinary people afraid. In making this argument I am aware that I would have to accept people saying things I find egregious or worse — Holocaust denial, for example. I loathe David Irving, who was jailed in Austria in 2006 for denying the Nazi extermination of European Jews. But why jail him? It was enough that what was left of his credibility was destroyed. 

Fear makes people want protection, and that’s understandable. But politicians should be calming things down, not making us afraid of each other. Most days, I sit on the London underground beneath bossy posters that warn me not to assault a staff member, or to stare at anyone. What I actually see, when I look around, is people making room for each other, saying thank you, helping those who need it. We have made huge strides in overcoming intolerance of racial and sexual differences, and in judging people for who they are, not what they look like. 

Criminalising speech only leads in one direction — towards authoritarianism. English and Welsh police have spent years recording “non-crime hate incidents” rather than investigating theft and murder. Comedians, including Rowan Atkinson, have had to defend their art against censorious legislators. The alternative is for all of us to be more self-restrained when upsetting things are said, and to be willing to listen to the other side. 

Some say it’s too late, that the nastiness of social media and the polarisation of the public is irreversible. But I disagree.

One of the most cheering stories in recent years was of the imam who came to the defence of a Northern Irish preacher who was put on trial under blasphemy laws for having called Islam “satanic”. Instead of taking offence at this nasty and gratuitous remark, Dr Muhammed Al-Husseini voiced his “deep concern and opposition to the criminalising of theological disagreement, at a time when our society should be fostering better quality disagreement”, and said that if the pastor was convicted, he would go to prison with him.

Many people are furious with the illiberalism of the new Scottish law, and with Yousaf’s incompetence. But they are not calling for him to be burnt at the stake. That’s not how democracy works. Or at least it used not to be. 

camilla.cavendish@ft.com

Letter in response to this article:

Kindness, an ethical norm / From Killian O’Donnell, Cashel, County Galway, Ireland