We might think that we live in an age when, at least in Western societies, there is less repressive government censorship than at any time in recent memory. Yet as one critic, Philip Johnston, notes, the reality is that in the non-censoring UK, ‘more people are being jailed or arrested in Britain today for what they think, believe and say than at any time since the eighteenth century’.6
Laws That Make Offensive Speech a Criminal Offence
Despite the UK’s proud boast to be the historic home of freedom since the Magna Carta, dozens of laws impinge on our right to free speech. Here are just a few of the more recent ones that can criminalise speech which some might find offensive.
Sections 4A and 5 of the Public Order Act (POA) 1986 make it an offence to use threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress. This means it can be a crime to say something which might upset a hypothetical other, if they were to hear it. The scope of the law is further broadened by equating ‘words or behaviour’, as if words were the same as deeds. (The word ‘insulting’ has now been removed from Section 5, but only after police and prosecutors assured the politicians that they could arrest and prosecute the same people for using ‘abusive’ words anyway.)
Section 127 of the Communications Act 2003 makes it an offence to send a message by means of a public electronic communications network that is grossly offensive, or of an indecent, obscene or menacing character. This is a remarkably sweeping offence – who is to say what is or is not ‘grossly offensive’? It has been used to prosecute and imprison people for the crime of making bad jokes and tasteless remarks on social media, or swapping online insults with other football fans.
The 2006 Racial and Religious Hatred Act amended the Public Order Act to make it an offence punishable by up to seven years’ imprisonment to use threatening words or behaviour intended to stir up religious hatred. The 2008 Criminal Justice and Immigration Act further amended the POA to add an offence of using threatening words or behaviour intended to stir up hatred on the grounds of sexual orientation. (Note the characteristic equation of ‘words and behaviour’.) These are potentially wide-ranging laws given, for example, that a racist incident is now defined as ‘any incident which is perceived to be racist by the victim or any other person’.
The Terrorism Act 2006 criminalises ‘encouragement of terrorism’, punishable by up to seven years’ imprisonment. The offence is defined so broadly that it includes making statements which are deemed to ‘glorify’ terrorism, even if that was not the intention of those making the statement. The sweeping law could be used to prosecute not just supporters of Islamic State, but also of, say, Kurdish groups fighting against IS.
The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 creates two new offences specifically aimed at football fans, at matches and online. The law makes it a crime to use words and gestures around football that would be legal elsewhere. It has been used to arrest, prosecute and even imprison fans for singing offensive football songs – an extraordinary act of authoritarian control in an allegedly free society.
None of these laws would last long if passed by American politicians, since the First Amendment to the US Constitution enshrines the rule that ‘Congress shall make no law abridging the freedom of speech, or of the press’.
Source of legal facts: Liberty
How can there simultaneously be both less censorship and more punishment of words? Because, the UK authorities will insist, the legal crackdown on what people say, especially online, is not state censorship of free speech at all. It is simply a positive attempt to protect people from harmful and offensive words. For example, official figures suggest that on average there are 25,000 proceedings in the UK each year for speech offences under Section 5 of the Public Order Act 1986 alone, with around half ending in convictions. But in the eyes of officialdom that’s not censorship, since those arrests were for using words or behaviour the courts considered threatening or abusive.7
In the USA, we are assured, there can be no state censorship of speech, thanks to the protection given by the First Amendment. But that does not stop the politicians trying, in the cause of protecting citizens from harmful words. In May 2014 the New York court of appeals finally struck down as unconstitutional the state’s 1965 ‘aggravated harassment’ statute, which made speech deemed ‘annoying and alarming’ a criminal offence. Weeks later, however, New York state’s highest court had to strike down a remarkably far-reaching new law on cyberbullying passed by Albany County, which sought to criminalise any electronic communication posted ‘with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person’. The notion that it could be an offence not simply to threaten but to ‘annoy’ somebody online was judged to infringe the First Amendment protection of free speech.8 Yet other US districts still enforce apparently constitutional laws against ‘annoying’ people with words.
No politician or official in the West, it seems, is publicly in favour of censorship today. A ban, however, by any other name still smells the same. The way that state curbs on speech can now be presented as positive, even liberating, measures is a sign of changing times. But it should not alter our attitude to censorship.
In the UK, once we had to deal with an authoritative nation state that might rarely but unashamedly impose political censorship in the name of defending the ‘national interest’. Now we have something more like the ‘indignation state’, which promiscuously bans words and punishes speakers as a form of therapy, to protect individuals from offensive and outrageous speech. Official censorship today presents a far softer, more people-friendly face. But it is none the better for that.
The UK state now lacks the authority boldly to censor in its own name, using the traditional excuse of ‘national security’. When it tries to do so, as with the recent attempts to outlaw ‘extremism’, it runs into trouble and opposition. More often today the authorities claim to issue bans and pass laws on behalf of others. They insist that they are not attacking free speech, but simply protecting the vulnerable from harmful words. The state censors reluctantly, not because it hates freedom, but only because it is outraged by what it deems offensive hate speech. As Boris Johnson, the Conservative Mayor of London, declared when banning a ridiculous Christian advert about ‘curing’ homosexuality from the capital’s buses, we must be ‘intolerant of intolerance’.9 But then we end up with the even more ridiculous notion of banning the expression of opinions in the cause of freedom.
In the USA the indignation state might be frustrated in its desire to pass laws against offensive hate speech by the pesky First Amendment (although polls claim growing support among Americans for anti-hate-speech legislation). But the US authorities are prepared to go down the route of informal censorship to achieve the same ends. In 2011, as the fifty-six Muslim states of the Organization of the Islamic Conference pushed for an international law prohibiting blasphemy, US Secretary of State Hillary Clinton sought to reassure them that the Obama administration was onside. Clinton told the OIC that, although the First Amendment meant Washington could not ban anti-Islamic speech, rather than stand up for free speech the administration could still apply ‘some old-fashioned techniques of peer pressure and shaming so that people don’t feel they have the support to do what we abhor.’10 Arm-twisting and embarrassment, the ‘old-fashioned techniques’ of the school playground, appear to be the US state’s preferred methods to stop the naughty citizens talking out of turn. Where could these Islamists have got the idea that it was legitimate to force blasphemers into silence?
Yet the official censors of our Western governments and courts are rarely the driving force behind censorship today. The authorities more often take their lead from the army of unofficial censors demanding action against allegedly dangerous speech.
These lobby groups, individual