There is a new controversy over free speech this week. The Faculty of Advocates, which represents Scotland’s legal profession, has warned that new changes in the country’s hate speech laws could sweep too broadly to include even comedians who are viewed as insulting to a range of different groups. The new law would extend hate speech crimes to “offensive” statements concerning LGBT+ and intersex people, as well as adding provisions on age, disability and religion. It is a trend that concerns many free speech advocates as well as comedians. In the United States, six out of ten students now view offensive jokes to be hate speech.
We have previously discussed the alarming rollback on free speech rights in the West, particularly in Europe (here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here). We have seen comedians targeted with such court orders under this expanding and worrisome trend. (here and here and here).
Under the provisions of the Hate Crime and Public Order (Scotland) Bill sweeping language would be extended to an equally sweeping array of groups. The government website raises more concerns with its highly evasive language. It assures that the new language will not impact free speech because the law says it will respect free speech. However, the criminalization covers any language that is deemed as “stirr[ing] up hatred” for any of these groups. Here is just part of the explainer:
Part 1 makes provision relating to the aggravation of offences by prejudice. It provides that a criminal offence is aggravated if either: the offender evinces malice and ill-will towards the victim based on the victim’s membership of a group defined by reference to a listed characteristic, or the offence is motivated (wholly or partly) by malice and ill-will towards any such group. The listed characteristics are age, disability, race (and related characteristics), religion, sexual orientation, transgender identity and variations in sex characteristics. 7.
Part 2 creates offences of stirring up hatred against a group of persons based on the group being defined by reference to a listed characteristic. It also creates offences of possessing inflammatory material with a view to communicating the material in circumstances where there is an intention to stir up hatred or it is likely that hatred would be stirred up. The listed characteristics are the same as those in Part 1.
That is hardly comforting. Putting aside the rising number criminal complaints over offensive speech, European laws are creating a glacial chilling effect on speech. For example we discussed how decades of anti-free speech policies in Germany have reduced the expectations of citizens in that country to the level of an authoritarian regime. A survey, conducted by the Institut für Demoskopie Allensbach(and published in the Frankfurter Allgemeine Zeitung) found that only 18 percent of Germans feel free to express their views in public. Undeterred, leaders have called for greater limits on free speech during election periods.
Fortunately, the expanded list does not include (thus far) making fun of Scots for being Scottish: