This week, Scotland’s new hate speech law came into effect with a tidal wave of criticism from the likes of JK Rowling and Elon Musk.
The Hate Crime and Public Order (Scotland) Act 2021 creates a new offence of communicating material that a ‘reasonable person’ would consider to be ‘threatening’ or ‘abusive’ with the intent of stirring up hatred based on age, disability, religion, sexual orientation, transgender identity or being intersex. The maximum penalty is a seven year prison sentence.
It goes without saying that nobody should ever face abuse based on immutable characteristics. Nevertheless, it is dangerous to criminalise speech on such an ambiguous and subjective basis. Who is this magical ‘reasonable person’? What does it mean to say you have been ‘threatening’ or ‘stirred up hatred’? This law gives Police Scotland and the Scottish courts the unenviable task of deciding these questions.
The law invites vexatious complaints. Police Scotland has confirmed that JK Rowling will not be investigated for misgendering, but over 3,000 complaints have been received since the start of the week. Even if there are relatively few prosecutions, these complaints could still be recorded as ‘non-crime hate incidents’, undermining people’s ability to get jobs in future.
Particularly concerning is that, unlike many equivalents, the law may apply to private conversations, not just public pronouncements. This means a disgruntled family member or acquaintance or someone who overhears a private conversation is invited to submit complaints to the police and may even do so anonymously.
Taken together, the mere existence of this law on the statute books will have a chilling effect on debate about controversial topics like gender and immigration. Censorship not only undermines the ability to have necessary and important debates, but it also takes away our more fundamental ability to hear ideas and choose what we believe. Any law that means arresting, convicting, and jailing people merely for expressing an idea without any linked action is intolerable in a free society.
This is not to say we should let the UK Government off the hook. Despite rhetoric about free speech, there has been a consistent failure to reform laws that undermine it and the introduction of new problematic laws – from Section 127 of the Communications Act 2003 to the Online Safety Bill.
Perhaps the one bright spot this week is that finally people are taking notice. The IEA has been raising the alarm bell about the Scottish hate crime law since 2021 and has talked about the importance of free speech for many decades. We will continue highlighting the dangers posed by these laws to a free society.
