“I know it when I see it…” U.S. Supreme Court Justice Potter Stewart famously wrote in the obscenity case Jacobellis v. Ohio. We do need to employ that approach to defining a lot of things in life. It is not, however, a sound basis for law.
Legislation should be equal, general, and certain. With more executive discretion, we move closer to arbitrary rulemaking and away from the rule of law.
I was reminded of Stewart’s notorious line when reading the government’s new definition of extremism, announced this week by Michael Gove, which defines extremism as:
“...the promotion or advancement of an ideology based on violence, hatred or intolerance, that aims to: (1) negate or destroy the fundamental rights and freedoms of others; or (2) undermine, overturn or replace the UK’s system of liberal parliamentary democracy and democratic rights; or (3) intentionally create a permissive environment for others to achieve the results in (1) or (2).”
This is not as bad as it could have been. It is certainly better than some definitions floating around suggesting extremism could be defined as ‘undermining British institutions’. It is also an ‘official’ definition, not a legal one. This means it will only apply to government engagement with and funding for third parties.
The risk, as always, is in the interpretation of these terms and the expansion of their scope. The government’s ‘Prevent’ strategy will embrace the new definition, placing an immediate chilling effect on speech for those who risk scrutiny in their academic and professional lives.
The vagueness of the language makes this definition concerning. Would pro-life campaigners risk further censorship for peacefully opposing what many consider to be the ‘fundamental right and freedom’ to have an abortion? Would those who have concerns about the National Health Service find themselves labelled ‘extremists’ for questioning the ‘democratic right’ to healthcare free at the point of use? Could a campaigner calling for the UK to leave the European Convention on Human Rights be labelled as an extremist?
I have called for the abolition of the constitutional doctrine of parliamentary sovereignty. Can I expect to spend time with Prevent explaining my aim to ‘overturn or replace the UK’s system of liberal parliamentary democracy’?
This may seem like a ‘slippery slope fallacy,’ but freedom of expression in the UK has been slowly eroding for decades, fuelled by the imposition of vague laws against broad categories of speech.
The aftermath of Hamas’ attack on Israel has been truly alarming. But we must not allow emergencies to be ‘the pretext on which the safeguards of individual liberty have eroded’ by growing state power.
