In 1988 the Thatcher government in the United Kingdom passed what became known as "Section 28," a controversial amendment to the 1986 Local Government Act. Section 28 stated that a local authority inter alia, "shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality" or "promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship". Although the act did not create any criminal penalties for a violation, it did result in a significant amount of self-censorship, including the closure of gay and lesbian student groups at the secondary and university level.
Today, the same government that enforced Section 28 is prosecuting five men under Section 29(c)(1) of the Public Order Act for distributing threatening material intended to stir up hatred on the grounds of sexual orientation. History, it seems, is not without a sense of irony.
The Public Order Act 1986 was amended by the Criminal Justice and Immigration Act 2008 to create the offence of intentionally stirring up hatred on the grounds of sexual orientation. As amended, the act covers "conduct (either words or behaviour) or material which is threatening in nature, and which is intended to stir up hatred against a group of people who are defined by reference to sexual orientation." Crown Prosecution Service: Legal Guidance on Sexual Orientation Legislation. The act is more limited in scope than legislation that prohibits "race hatred," as it does not cover material that is "abusive or insulting," and the race hatred legislation does not have a scienter requirement (the material most only be "likely" to stir up hatred to merit a conviction).
As the CPS explains:
The defendant must intend to stir up hatred on the grounds of sexual orientation; recklessness is not enough; and the behaviour must be threatening. So using abusive or insulting behaviour intended to stir up hatred on the grounds of sexual orientation does not constitute an offence, nor does using threatening words likely to stir up hatred on the grounds of sexual orientation.
Conduct or material which only stirs up ridicule or dislike, or which simply causes offence, would not meet the requisite threshold required by the Act, i.e. hatred. So, for example, the offences do not, and are not intended to extend per se to childish name calling, or the telling of jokes, or the preaching of religious doctrine, unless those activities are threatening or intended to stir up hatred.
This is reinforced by the freedom of expression defence contained in section 29JA, which confirms that "for the avoidance of doubt, the discussion or criticism of sexual conduct or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening".
What makes an activity "threatening or intended to stir up hatred" on the grounds of sexual orientation? Does quoting Leviticus 20:13, which calls for the murder of gay men, constitute hatred? Does it provide sufficient probable cause for police to investigate a suspected violation of 29(c)(1)?
These are the kinds of questions we avoid in the United States with the assistance of the First Amendment, now fully incorporated against state and local governments. In other jurisdictions, including the United Kingdom, "right speech" is determined by reference to shifting political winds. In 1991, it was illegal to "promote" homosexuality; twenty years later in 2011, arguing in a public square that people who promote homosexuality are violating God's law is a felony punishable by up to seven years of imprisonment.
The men being prosecuted by the CPS are accused of distributinga pamphlet titled "The Death Penalty?" outside of the Jamai Mosque in Derby last July, four months after the law went into effect. They are also accused of distributing the leaflet through local letterboxes. According to the BBC, five men are scheduled to appear before a magistrate on February 14; their ages range from 27 to 44. All five appear to be Muslim, and it was only after conducting an investigation that the CPS determined a prosecution would be in the public interest in this case. One suspects that a 2009 survey indicating British Muslims were far more conservative than French and German Muslims has something to do with that decision, although the CPS has not offered any additional insight into their decision to prosecute. It should also be noted that these cases are handled by the CPS' counter-terrorism division.
This is a test case that will afford courts the opportunity to construe the new law and what it covers, although I suspect that similar prosecutions under the race and religious harassment laws have already defined the outer contours of the 2010 legislation. It seems clear from the reporting so far, however, that the pamphlet in question did not identify any particular individuals and urge readers to "hang them," as was the case with a recent Uganda newspaper. It is more likely that the leaflet quoted a saying attributed to Muhammad that calls for the death penalty for liwat, which makes this more akin to prosecution for distributing leaflets citing Leviticus 20:13 than, say, a prohibition that would cover more limited, specific calls for the execution of "known homosexuals," as in the case of Uganda.
Hate speech laws by necessity privilege one ideology over another. In the case of Britain, the government has criminalized, or is attempting to criminalize, a wide range of speech and speech acts that would be permissible and protected in the United States. The First Amendment does not permit the government to impose special prohibitions on those speakers who express views on disfavored subjects. See R. A. V. v. St. Paul, 505 U.S. 377, 391-92 (1992). In that case, the petitioner was charged with a violation of a "Bias-Motivated Crime Ordinance" after allegedly burning a cross on a black family's lawn. The ordinance prohibited the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Supreme Court found that the ordinance, even as narrowly construed by the Minnesota Supreme Court, was facially unconstitutional because it imposed special prohibitions on those speakers who expressed views on the disfavored subjects of "race, color, creed, religion or gender." Additionally, the ordinance's content discrimination was not justified on the ground that the ordinance was narrowly tailored to serve a compelling state interest in ensuring the basic human rights of groups historically discriminated against, since an ordinance not limited to the favored topics would have had precisely the same beneficial effect.
Note that this does not mean that the United States or the various states are at a loss to prohibit conduct aimed at threatening, intimidating or harassing members of historically marginalized groups; as the Eleventh Circuit Court of Appeals pointed out in United States v. Stewart, the holding of R.A.V. v. St. Paul was limited to statutes aimed at expressive activity. United States v. Stewart, 65 F.3d 918 (11th Cir. 1995). See also Wisconsin v. Mitchell, 508 U.S. 476 (1993) (penalty-enhancing statute that punished defendants for bias-motivated offenses on basis of race, et al. was not constitutionally impermissible). We can penalize individuals for the commission of hate crimes above and beyond the punishment typically reserved for the underlying conduct of, say, assault or arson. What we cannot do is penalize expressive conduct on that basis; indeed, we cannot even disfavor constitutionally unprotected fighting words on that basis, because that would constitute unconstitutional viewpoint discrimination.
We are not Britain. Many Muslim groups favored the introduction of the bias legislation for speech related to religion and race, and continue to campaign against Islamophobia in the U.K. Indeed, the MBC supported the Equality Act of 2007:
"We affirm our belief that the practice and promotion of homosexuality is forbidden according to the teachings of Islam. However the Sexual Orientation Regulations are not about religious belief but about prohibiting discrimination in the provision of goods and services on grounds of sexual orientation. The MCB stands opposed to discrimination in all its forms."
MCB Statement on SORs
What the MCB and other groups who support hate speech legislation in the abstract will soon discover, however, is the ease with which such legislation is converted to a weapon to police unpopular minorities. The views of Britain's Muslim community on homosexuality are unpopular ones; the adoption of a legal rule in Canada, inspired by anti-pornography "feminist" Catherine MacKinnon, resulted in an increase in seizures of gay and lesbian materials. The proponents of the rule have of course denied any responsibility for this uptick in persecution, claiming that the decision actually helped protect the material from censorship, notwithstanding voluminous evidence to the contrary. Hate speech acts, like lese majeste laws operating in Thailand and other countries, are political tools. European social minorities may be elated to discover that Holocaust denial is illegal, but will they feel the same way when their own positions on the 1948 Nakba are similarly criminalized? And make no mistake, politically unpopular defense attorneys have been detained in Rwanda and other countries for the crime of "genocide denial," a variant of modern hate speech laws.
Opponents of free societies come in different forms, from the theological opponents of humanism that spring from seminaries to the polished, academic opponents who teach humanities and social sciences to incoming freshman at major universities. For a liberal, it makes little difference whether their desire to silence speech stems from regressive or progressive aims. Free societies cannot tolerate the presence of illiberal laws that threaten the foundation of democratic legitimacy.