Scotland’s new hate crime law is making headlines around the world with a key question at the heart of the debate -- will this law have a chilling impact on free speech? Scotland already has laws that deal with hate crime but the new ‘Hate Crime and Public Order (Scotland) Act’ creates an offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation etc.
As the BBC reported, stirring up hatred based on race, colour, nationality or ethnicity was already illegal in Great Britain under the Public Order Act 1986 but it also now includes “insulting” behaviour, and the prosecution need only prove that stirring up hatred was “likely” rather than “intended”. The maximum punishment is 7 years in jail.
Those who support the new law say it will protect sexual minorities which have been at the receiving end of a barrage of hate. But critics say the new law can be used to target those merely expressing a view such as gender-critical feminists. The new law does not include women as a protected group which is baffling. This is being done under a separate law.
Author JK Rowling, who has been a critic of trans activism, strongly spoke against the new law on social media, even inviting police to arrest her if they believe she committed an offence. She wrote: “Scottish lawmakers seem to have placed higher value on the feelings of men performing their idea of femaleness, however misogynistically or opportunistically, than on the rights and freedoms of actual women and girls.”
Scotland’s First Minister Humza Yousaf insists there is a “very high threshold” for prosecution and a “triple lock” on freedom of expression in the act, including an explicit clause, a “reasonableness” defence, and compatibility with the European convention on human rights.
Flood of complaints
Police in Scotland however are reported to be worried about a flood of complaints about social media posts and worries that hate crime allegations can also be made anonymously. More than 7,000 online hate complaints have been received under the new law in the first week of it’s implementation.
The Association of Scottish Police Superintendents says it is concerned about the impact this could have on an already overstretched force, since current guidelines state that all hate crime complaints should be investigated.
Experts say the new law does have a relatively high bar for criminality, stressing its free speech provisions, including a “right” to express ideas that “offend, shock or disturb.” But in practice, people may end up self censoring online, worried about the potential effects of saying something which may end up as a police complaint.
‘The Guardian’ newspaper reports that a Glasgow law professor, Adam Tomkins, points out that there is nothing to stop allegations of hate speech made in the privacy of the family.
Under the new law, a crime could be committed if “a reasonable person would consider it threatening or abusive”. How will this be defined? A Scottish MSP Murdo Fraser faced a police complaint for saying on social media that: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat. I’m not sure governments should be spending time on action plans for either.”
Culture wars and fierce debates over gender rights have entered a new era with this new law. And with society so deeply polarised, it may end up sowing further divisions.
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