Clive Anderson recently chaired a discussion on Radio 4 in May 2013 that asked a simple question: how free is our speech in Britain today? The discussion also took the time to considered specifically how speech on social media should be controlled or otherwise.
Billed as 'the programme that gets behind the legal issues of the day,' it certainly did that. You can listen to the episode in full here.
Clive Anderson kicked things off with a nice overview of the legal history as it exists in law in Britain to date and how this contrasts with our love of freedom:
"We live in a free country where the right to speak out mind is fundamental to our liberty and vital to our democracy. Developed under the common law, freedom of thought and expression are nowadays protected by the ECHR and recognised in Other international declarations.
In theory we're entitled to say what we like, even if others don't like what we say. Well in practice there has always been plenty of restrictions of what can be uttered in public or published in print. Through the centuries laws against blasphemy, libel, pornography and sedition have been deployed to keep private thoughts out of the public eye. Tv and theatre shows have been subject to censorship and control.
But what of freedom of expression today?
Do new laws to prevent hate speech and to protect individuals and minority groups from offence and victimisation have the effect intended or otherwise of inhibiting free speech? Is the criminal law the right weapon to use against those who are disrespectful of other races, religions or sexual preferences?
Is it useful to prosecute a demonstrator who said to DC that he had blood on this hands? Is it really grounds for arrest to suggest that a police horse is gay? In what circumstances is it against the law to use social media to make anti-social remarks? Is it really a police man's lot to police which jokes are liable to cause offence? Is out wish to be tolerant of minorities making us intolerant of free speech?It's important to say at this point that Clive Anderson was joined by barrister Ivan hare (his chamber's write-up on the episode here), Barrister Neil Addison and Chief Constable Andrew Trotter. Also Gavin Phillipson, a professor of law at Durham University.
Clive Anderson again:
"So is free speech a fundamental right that still exists of a luxury that has to be compromised in the interest of public order?
Rowan Atkinson has spoken of a "creeping culture of censoriousness". That we're accepting the criminalisation of speech that offends, insults or disparages. Is Mr Atkinson onto something?
Ivan Hare responded:
"Yes increasing number of groups are now protected from speech that might be regarded as inciting hatred against them. Race hatred law was introduced in the 1960s; and more recently, laws against religious hatred were introduced as well as laws against the incitement to hatred against sexual orientation hatred."Neil Addison disputed comments that came from Andrew Trotter, saying that it is the job of the police to protect people from danger that may harm them, not from comments and opinions they may disagree with.
Gavin Phillipson came into the debate and said that the Public Order offences are very broad. While section 29 (j) which gives reasons why you can't prosecute somebody are tucked away and hard to find.
Ivan Hare said that while laws against religious and sexual discrimination - you have to insult the person not the religion to be prosecuted (free speech clause) - are narrower, they are also less coherent. As in: you choose your religion whereas people argue that you don't choose your sexual orientation. While religious groups would say they didn't choose they religious orientation either.
Neil Addison in Liverpool said that he would question the need for the race hatred legislation or that on sexual orientation. Because it is about words or language that "are likely" to stir up hatred. But hatred is an emotion, not an action. Should the law be involved in stuff that involved emotion? It's different if your inciting people against another person's race of sexual orientation - the law must stop that - but should it be involved in something that at best may incite an emotion, not incite an action?
Gavin Phillipson countered this by saying hate law is there to reassure vulnerable communities.
Neil Addison said that hate laws are there to stop people disagreeing with government policies and trends in society. Adding that the danger is that law in itself is acting as a censor and the police then becomes the enforcers of the prevailing orthodoxy rather than keepers of the peace.
Clive Anderson again:
"This goes to the heart of the discussion: is the hate law a censorship measure stopping people from expressing themselves?"
Andrew Trotter: If someone is spouting hate speech and there is likelihood of violence, and even if there isn't - if you have a vulnerable person being berated for their race I think it's quite correct that people give up rights to the state and they expect protection from the state.
Mr Trotter then said something which I thought very important and very true and applicable to use all:
"This isn't a dry academic subject. This is real. This is something that happens everyday."
One of the great improvements we've seen in society is that people are much more conscious of the sensitivities of others. There were no good old days when we said what we felt like. We're a far more civilised society now I think because of some of these measures.
----- Would that not be covered by the more general public order law? Section 5? Without having to specify race or sexuality?
Barrister points out that selecting one of the protected groups is an aggravating factor under public order law.
Gavin agreed with much that Trotter said - added that need to draw a line between face to face words - those likely to cause a fight - assaultive words and speech directed to public at large - such as blog and newspaper. This second area if where the real free speech concerns are.
Neil Anderson replied to trotter: you didn't need religious hatred law to stop somebody abusing somebody on transport or in the public area. That's always been illegal.
We're in risk of heading towards a hate crime arms race where one group says they're not protected, another group complains and so on. Instead of the basics that law should protect everyone equally.
Trotter said the exacting standards have made us a more tolerant society.
Addison countered by using example of Christian preacher arrested.
Is the law too complicated?
Simon Calvert from Christian institute has said that large number of Christians have been arrested and prosecuted for saying things that are unfashionable - not that which incites or cause hatred.
How can simply expressing support for traditional marriage be a hate crime? Reinforces addison's point.
DPP v Hamon was charged under section 5 which was broader as sexual hate speech allows speaker to say acts etc are wrong. The Statute has defences included within to allow traditional Christian preaching and so on.
Trotter: I can't and won't defend some of the examples raised.
I use the positive example of the director of the DPP who has put out very strong guidance about the high threshold that exists before people police even look at the case.
And I think that sort of approach where we don't get involved in the issues unless it is an absolutely serious matter.
Hare countered Gavin by saying Hamond case predated sexual hatred law and said because he said it was immoral, and therefore referring directly to the person, the narrower hate law could have caught him
Philip Pritchard was singing anti-English songs
Petra mills found to have abused Australian neighbour Chelsea o'reilly by calling her a stupid, fat Australian.
CA rightly noted that section 5 is due to be removed from law. Trotter welcomed the removal.
Trotter questioned wisdom of Original officer, custody officer and then CPS when Sam was prosecuted for calling a police horse gay.
Ivan hare said hate speech is too paternalistic and takes away from the autonomy of the audience who should be able to make their own decision - as was the intention of free speech protection which gives meaning to the market for ideas.
Usually by exposing ideas of hatred to discussion you reveal how foolish they are.
Addison agreed entirely and added that John Stuart mill said that if the whole world was of one opinion and only one person disagreed, the whole world would not be justified in silencing that one person.
Added: "good arguments drive out bad arguments"
Trotter: "There is something about context, common sense and discretion"
There is a role for us to step in at the extreme end of these comments in order to protect people. Don't step in too quickly, exercise good judgement and use the HRA as a good measure to ensure a proportionate response and not thinking we have to investigate every allegation which I think is a common mistake.
CA - in Manchester they're recording attacks on goths, emos and other similar types of youth culture. Literally fashion police; exhib again extends the categories of people who are seen as needing extra protection.
Trotter: more a demonstration of support to that community after criticisms of antipathy in the past.
Addison: the law should deal with crimes equally.
Plenty of examples that have hit headlines - Paul chambers charged with menacing electronic application.
Was identified as joke but didnt stop police, CPS and court of first instance
Trotter: I find it completely inexplicable. All the way through people seem to recognise this wasn't terribly real and yet it still had a life of its own and I do find it quite extraordinary. It should have stopped at first instance, it should never have got past the police, it should never have gone to the CPS and the CPS shouldn't have run it either.
It is really difficult to understand; looking back on that case how we got into that position. I don't think anyone can defend what happened there.
CA - should we watch what people are doing on Twitter?
We have to accept that people use different methods of communicating than was the case in the past. And people will use social media to contribute to the kind of public discussions of general importance that we say are so important that they should be defended.
Essentially the difficulty is that a legal regime that was intended to govern broadcasting and in particular the broadcasting of offensive material is simply being applied to other forms media which aren't broadcasting in the same sense as those for which the communications act or previously the broadcasting act were passed to resolve.
Gavin would leave sexual and racial hatred law on statute book. Remove section 5 - shouldn't have police censoring political speech on streets and would remove provisions in the malicious communications act that prohibit grossly offensive comments on Twitter because it is far to uncertain and subjective.
CA- Do we need more guidance?
Gavin said we have been given terribly uncertain laws that contain words like grossly offensive that noone really knows what that means and different people find different things grossly offensive. And it's up to them to make decisions on that and no wonder they make mistakes some times because they're given an impossible job.
How would you rearrange law to make it easier for police and citizens?
Trotter: I take the view that DDP guidance is really useful. But obviously still issues. But requirement for high threshold and a clear public interest is really good and should be applicable beyond social media. Into section 5 without losing its real use to us: as a Friday night tool to deal with disorder on the street.
I don't think we should go into these other arenas at all. It's not for us to be policing political views on behalf of people who are offended. It's only for us to deal with a real issue where people are being victimised, harassed, threatened. It's given very clear guidance to police forces to apply very very high threshold to these things before we even start looking at them.
I would get rid of racial and sexual orientation hatred laws completely so the law is equal to all.
As far as the communications act: I would say directed at another so we're not policing something that someone has said on twitter generally then take offence to.
We need to abolish section 5 and repeal the incitement to hatred provision. Where I disagree with Neil Addison is in relation to hate crime - I think you can draw distinction where someone has chosen someone on grounds of race - because it it right to punish that more seriously.
4 experts and 4 completely different view on how to reform the system.