Rethinking hate speech, blasphemy and free expression

Abstract

A short paper about the issues raised by the Government's Racial and Religious Hatred Bill, looking at blasphemy and the place of religion in public life.

The role, status and influence of religion in public life is a fraught topic at the moment. As the confused and impassioned debate surrounding the proposed Racial and Religious Hatred Bill illustrates, it is also one in which heat rapidly overcomes light.

Government spokespersons have recently said that they will use the Parliament Act to force this bill (relating to part 3 of the Public Order Act 1986) onto the statute books, in spite of the huge scale of opposition both from people of faith and from secular bodies.

Such a move would be wrong in principle and practice. There is insufficient evidence of a genuine mandate in this area. The uncertainty, division, ambiguity and fear raised by the bill cannot and should not be ignored, even if some of it is misplaced.

A much larger rethink is necessary on hate speech, blasphemy and freedom of expression – well beyond the scope of the constructive amendments currently being offered by an all-party group of peers (with the involvement of the former Archbishop of Canterbury, Lord Carey).

As we suggest below, the present bill is seriously flawed. But so are the motives and arguments of many who oppose it. We all need to find better ways forward.

Religious hatred

From the outset it should be acknowledged that the problems which the government is trying to address through the Racial and Religious Hatred Bill are legitimate ones.

The menace experienced by Muslims as a religious community (not as a racial group) is real, as is the anomaly of Jews and Sikhs being covered by incitement to racial hatred while Muslims are not.

But you do not right a wrong and rectify unfairness by introducing inadequate and potentially damaging legislation. This is what the government looks as if it is doing.

The first major difficulty, as the former Lord Chancellor, Lord Mackay, has pointed out, is that the bill does not define religion. The government says that this is less problematic than the alternative, but it hardly gives assurance of clarity.

The second major difficulty is that, however much we might abhor hatred, it is not a crime under UK law to express it. Nor could it be without a massive incursion of civil rights.

A bill which makes it a crime to incite people to an act which in itself is not illegal is therefore inherently problematic, if not downright incoherent.

In which case, what is it trying to outlaw? The answer would seem to be hate speech applying to religious groups which causes threat, menace and alarm, and which may be contributory to actual harm.

But this is already illegal under existing public order legislation, and in a way which applies to all people – irrespective of race, creed, gender or other identifying characteristics. That is the crucial point.

If there are any doubts (such as the concerns expressed by Muslims, lesbian and gay people, and others) they should be addressed by ensuring that the existing law is properly applied.

On numerous occasions the government has been asked to justify the Racial and Religious Hatred Bill by providing examples of cases that fall within its stated intent and cannot be dealt with by existing law designed (rightly) to protect people from menace or assault.

It has singularly failed to come up with any incontrovertible examples, and the instances it has cited have been robustly challenged by senior lawyers and legal advisory bodies.

A third major problem is that the definition of incitement to hatred (and, effectively, religion) would be left to the attorney general. This gives some protection against arbitrary abuse of free speech, but not a kind which is publicly accountable, as it should be.

A fourth major problem is that, in spite of the Home Secretary’s stated belief to the contrary, under section 19(1)(a) of the Human Rights Act 1998, the Racial and Religious Hatred Bill, if introduced and employed, is very likely to be challenged as contravening the European Convention on Human Rights.

A fifth major problem is that, in spite of constant assurances that it will not be used to suppress humour, criticism or ridicule directed against belief systems (but only against persons), there are many who are talking and acting as if the bill was a de facto extension of the UK blasphemy law.

Quite clearly it is not intended in this way. But the failure of the government to promulgate a simultaneous abolition of the charge of blasphemy has left the matter in serious doubt.

The upshot is that the bill in its current form constitutes an unacceptable reduction of free speech (though perhaps not quite as grave as some of its critics are suggesting) without any sustainable gains in protection for the genuinely vulnerable and abused.

Ekklesia’s view is that the bill should not become law, but that if it does it should only be with the kind of safeguards suggested in the House of Lords amendment (Tuesday 25 October 2005) and with a clear process of review and appeal built in.

A better move, we suggest, would be a commission of enquiry into hate crime per se, based on wider public consultation involving a range of civic and legal bodies. Among other matters, this might consider the neglected question of civil (not just criminal) legislation.

In the past the government has talked about ‘sending out the right signals’. But the purpose of good law is not to influence a general climate of opinion; it is to provide a secure framework of rights and guarantees within which people can safely go about their lives free from threat.

However, the social and political context for legislation is undoubtedly very important, and it needs serious consideration in its own right.

Blasphemy

Ekklesia’s starting point for considering hate speech, blasphemy and freedom of expression is that members of faith communities should enjoy the same protections and rights as others in civil society – no less, but no more.

At present, one section of the Christian community enjoys a form of protection against criticism denied to others – the blasphemy law.

The current law of blasphemy is based on decisions made by nineteenth century courts, and in an 1838 case was restricted to protect the “tenets and beliefs of the Church of England”.

Blasphemous libel is difficult to define and privileges only the established church. It is unfair in a plural society, harms free speech, discriminates against people of other or no religion, and has recently (and rightly) been described by the former Archbishop of Canterbury as “redundant”.

Ekklesia opposes a law of blasphemy not on pragmatic grounds alone, but centrally on theological ones.

Christian faith (and indeed any faith) is corrupted when its allegiance or defence is legally required by the state. Instead of being a liberating tradition rooted in God’s favour-free love, it becomes a matter of coercion and oppression.

It is not without significance that Jesus himself was tried and executed by a coalition of political and religious forces who objected to his subversive message.

Moreover, blasphemy laws in other parts of the world (Pakistan is a good example) have become a threat to life and limb not just for Christians, but for a variety of minority groups.

In Afghanistan, the editor of Haqooq-i-Zan (Women’s Rights) magazine has just been jailed for two years for blasphemy. She challenged the belief of others in Islam that Muslims who turn to another religion should be stoned to death.

Ekklesia is opposed to the suppression of religion (and suppression by religion) in all their forms. We would want to argue that this is required by an authentic, thoughtful interpretation of the Gospel; and we would seek to encourage this view as part of a respectful exchange with other religious communities.

It is this conviction which renders the style and tenor of some of the Christian opposition to the Racial and Religious Hatred Bill disturbing in its own right.

Quite a number of the Christians who have spoken out against the bill have done so on grounds of free speech. Yet in other contexts they have been quite willing to deny the same right to others, as in the often intemperate campaign against Jerry Springer – The Opera.

Among the demonstrators outside Parliament in the recent lobby organised by the Lawyers Christian Fellowship were those who also claimed that the Racial and Religious Hatred Bill would threaten their freedom to preach the Gospel message.

Though Ekklesia is deeply critical of the bill, we think this is a massive overreaction verging on a scare tactic. It certainly does little to ennoble the debate.

A Gospel of love should have nothing to with hate speech in the first place. And insofar as Christians are guilty of verbal abuse against others they are condemned by their own message, regardless of the law.

In our response to David Aaronovitch’s BBC2 documentary/commentary ‘God and the Politicians’, we argued for a free and fair public arena in which people of different convictions (including religious ones) are able to criticise and be criticised, to influence and be influenced.

Obviously an even-handed framework of law is necessary for this. But so is our own capacity to engage with those with whom we disagree in an open, fear-free way.

When threat, menace and violence are used (be it against Muslims, Jews, Christians, atheists, women, sexual minorities, or TV and theatre producers), the law can reasonably be expected to offer protection and redress. But when people try to use law to stop others from speaking, that is another matter.

At the moment there are some religious lobbyists eager to ban things that offend their sensibilities, and some anti-religious lobbyists who appear to favour excluding religion from the public sphere altogether. Both are wrong and misguided.

Alarmist talk of ‘the coming religious persecution’ by some and of ‘the coming theocracy’ by others is just that: alarmist talk. We have to take care that proper vigilance is not undermined by paranoia.

People of different faith and people of no faith (or just ‘good faith’) are right to seek to preserve their own freedoms, but wrong to seek to do this at the expense of the other.

Community, solidarity, free speech

From a Christian perspective one might want to say more than this. For the Gospel is not about mere tolerance, it is about peacemaking and active love – even (especially) toward enemies. That cannot be compelled; it can only be brought about by people being prepared to live without fear, favour or threat.

Ekklesia’s view is that the vocation of the Christian community is best served by engaging in public life out of those resources of faith which do not depend upon privilege (such as those accruing to an Established Church) and which firmly disavow attempts to manipulate the public agenda to ‘our’ ends.

At the same time, Christians will rightly want to be outspoken against victimisation, and sensitive towards those (whatever their identity and convictions) who are verbally attacked, mocked and vilified.

This involves respect for people’s own sense of identity, as well as the ability to negotiate competing (even antagonistic) convictions. Again, some opposed to the Racial and Religious Hatred Bill have skated over this point.

It is now a commonplace view in liberal society that religious identity is (or ought to be) secondary and subservient to ethnicity or nationality because, unlike these, it can be changed.

But this is simplistic and unhelpful. Religion is not just about private opinion; it is also about belonging to a community of tradition and (for some) obligation. As with conscientious objection, a free choice may also be a fundamental one that exceeds other loyalties.

The inability of a secular culture to comprehend the depth of such commitment (and, correspondingly, to take seriously religion’s capacity for reason and intellectual depth) will only strengthen the trend toward fundamentalism and inhibit moves toward genuine inclusion and participation.

This does not mean that religious and ethnic communities are the same and can be treated as legally equivalent (another problem with the bill). Rather it points to an issue of social solidarity which cannot simply be reduced to statutes, but is a political and interpersonal reality.

Similarly, we would all benefit from an approach to public conversation which, while rooted in strong legal protection for liberty of expression, goes beyond an adolescent delight in causing offence – ironically, one of the sure by-products of attempts to outlaw it.

For it is not true that only sticks and stones can break our bones. Words can wound and intimidate too. Flawed though it is, the Racial and Religious Hatred Bill at least recognises this, in a way which its detractors sometimes fail to.

The best response to puerile, insulting, cruel or victimising talk is not censorship, however. It is the responsive language of truthfulness, honesty and compassion.

For, as the message of the Word made Flesh proposes, speech really worth having is much more than ‘free’ – it is costly, demanding, challenging and life-giving.