It has long been accepted that the state may lawfully curtail freedom of speech to prevent public disorder and crime. This includes written material that incites racial or religious hatred, or that glorifies terrorism. For the latter, see chapter 6. The laws of incitement and seditious libel are to there to preserve harmony in a multi-faith and multi-racial society. These laws are not designed to restrict writers from engaging in robust debate, satirising religious practice, reporting extremist activities or creating loathsome fictional characters.

INCITEMENT OF RACIAL HATRED

Laws preventing the incitement of racial hatred date back to the 1960s. In 1967 Malcolm X was the first person to be jailed for inciting racial hatred following his call for the immediate killing of any white man seen “laying hands” on a black woman. Under the Public Order Act 1986 it is a crime if threatening, abusive or insulting words or behaviour are used, or written material of that nature is displayed, intended to stir up racial hatred or which make it likely that racial hatred will be stirred up against a racial group. It is also an offence to publish any such material. A racial group is any group defined by colour, race or national origin, thereby including Jews, Sikhs, Romany gypsies, but excluding Zionists, Muslims, Rastafarians and ‘gypsies’ or travellers in general. For the offence to be proven there is no need to show that disorder was caused or that racial hatred was stirred up, it is sufficient to show that it might have been. However, ‘hatred’ is a strong word and causing embarrassment, ridicule, offence or harassment will not suffice.

The right to freedom of speech does not include the right to make statements that attack the core values of human rights. Thus in 1998 BNP Chairman Nick Griffin was convicted of inciting racial hatred for his magazine The Rune that contained anti-Semitic views and denials of the holocaust. In 2006, four of the protestors against the controversial Danish cartoons that portrayed Mohammed with a bomb-shaped turban, were convicted of inciting racial hatred when they chanted, “Democracy go to hell. Freedom go to hell. UK you must pay. Sharia is on its way. 7/7 on its way. UK you will pay: Bin Laden on his way”. For more examples see the ‘Violent Extremism’ section of the Crown Prosecution Website.

In theory a writer who has collected racist videos that might incite racial hatred (from the BNP or English Defence League, for example) and who intends to publish them as part of a story, could be convicted of inciting racial hatred. In reality this is highly unlikely and no broadcaster has yet been convicted of this offence. It is in the public interest for writers to engage with controversial debates and for the press to act as a watchdog over those espousing extremist views.

It is an offence to stir up racial hatred in the performance of a play, but the likelihood that hatred will be stirred up must be judged by reference to the whole performance. This means that plays exploring racism will not be criminal unless the overall message might stir up racial hatred. There have been no prosecutions of stage plays under the Act. Behzti, a play about sexual abuse and murder in a Sikh temple, closed down in 2004 after hundreds of protesting Sikhs gathered outside the theatre and threatened to storm the building. No prosecution for incitement was brought although the organisers stated that they could not guarantee public safety if the performance continued.

INCITEMENT OF RELIGIOUS HATRED

Unlike the law of blasphemy that was abolished in 2008, incitement laws do not protect religion; they protect religious groups from having hatred stirred up against them. Like the law against inciting racial hatred, causing offence is not enough. The BBC’s controversial decision to air Jerry Springer – The Opera, with its stridently satirical take on Christianity, received an historic number of complaints (63,860 in total) but was not deemed to incite hatred.

Under the Racial and Religious Hatred Act 2006 religious hatred is defined as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”. This includes all of the major world religions and the branches or sects within them, as well as groups such as Atheism and Humanism.

Incitement of religious hatred is a narrower offence than incitement of racial hatred. Insulting or abusive language does not amount to religious hatred, only threatening language amounts to the criminal offence. Furthermore, the prosecution must show that the person intended to stir up religious hatred. This requirement makes it very unlikely that writers, satirists and comedians could be successfully prosecuted.

Following the ‘Free Expression is No Offence’ campaign by English PEN, the Act includes robust protection for free speech in section 29J:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The effect of this clause is that writers are free to satirise, ridicule, criticise or challenge religious subjects.

SEDITIOUS LIBEL

The old common law offence of seditious libel can be committed by “promoting ill-will and hostility between different classes of Her Majesty’s subjects”. In 1990 attempts were made to prosecute Salman Rushdie for this offence on the basis that The Satanic Verses was calculated to create hostility between Muslims and other citizens. The prosecution failed because hostility was insufficient – there had to be proof of violence. This was dead letter law for many years: there was not a successful prosecution for seditious libel since 1947.

Seditious libel was abolished in the UK as part of the Coroners & Justice Act 2009, following a campaign by English PEN

DISORDER AND THE ARMED FORCES

The European Court of Human Rights has recognised that for there to be order and discipline in the armed forces there may need to be restrictions on what they can publish. In order to restrict the penmanship of members of the army, the material must be shown to pose a real threat to military order. Critical material should not be restricted or punished. The soldier who distributed leaflets encouraging his compatriots to desert had his freedom of speech rights legitimately curtailed, whereas the soldier who sent a private letter to his commanding officer raising concerns about the army as an institution should not have been censured.

Next week: The protection of health or morals

Last reviewed: April 2012

Photo: Salman Rushdie by Canada 2020 / Jake Wright on Flickr. Creative Commons Licence. ‘Prevention of Disorder’ is often cited as a reason for censoring Rushdie and the discussion of his literature.