Jailings for racism on Twitter? Britain’s forgotten fight for free speech

After student Liam Stacey is jailed for 56 days for a racist tweet about Fabrice Muamba, we need to re-think our approach to free speech, and learn a bit of history

David Hume
Jacob Mchangama
On 29 March 2012 09:56

In 1742, David Hume could write, “Nothing is more apt to surprise a foreigner, than the extreme liberty, which we enjoy in this country, of communicating whatever we please to the public, and of openly censuring every measure, entered into by the king or his ministers.”

Hume may have overstated his case somewhat, as prosecutions for blasphemous libel did take place at the time. But compared to just about anywhere else in Europe, Britons enjoyed unprecedented freedom of speech in the 18th century.

To a foreigner fond of British culture, not least its tradition of liberty, Hume’s words now evoke a mixture of sadness and bewilderment. How did a nation that once had the freest press in the world evolve into a society where (however offensive or morally objectionable) the distribution of religious caricatures, the comparison of Islam with terrorism, expressing religiously based objections to homosexuality and using racially “abusive” or “insulting” language on social media result in criminal conviction?

Authors such as Nick Cohen, Douglas Murray and Keenan Malik have done much to clarify how ideological multiculturalism has been the principle force leading to undermining freedom of expression in the UK, through the promulgation of so-called hate-speech laws (misleadingly labeled public order laws).

But the nefarious effects of multiculturalism might not have moved from the imposition of political correctness and self-censorship (which is serious enough) to the realm of criminal law without a supportive legal matrix.

That matrix was provided by international human rights conventions adopted at the UN during the Cold War era. The International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Racial Discrimination (ICERD) made it an obligation to prohibit certain forms of hate speech under international human rights law.

A striking feature of the negotiations of these conventions was the British government’s principled yet ultimately unsuccessful battle against a bloc of states, led by the Soviet Union and its allies, which were those introducing and insisting on hate speech laws in international human rights conventions.

The battle over whether human rights should simply oblige governments to respect freedom of expression or also include an obligation to prohibit certain forms of controversial speech began during the drafting of the Universal Declaration of Human Rights (UDHR) after the end of WWII.

The Soviet Union was adamant that states should be obliged to restrict “fascist” expressions and political parties. Of course, the Soviet definition of fascism could very easily include parliamentary democracy.

The UK was not against allowing certain restrictions on freedom of expression per se. But the British position was that restrictions should primarily be limited to the incitement to violence and should not be an obligation imposed on governments.

Human rights should protect individuals from totalitarian measures, not provide pretexts for prohibiting dissent. Through the hard work of the UK and the US, the Soviet proposals to include a hate speech provision in the UDHR was avoided.

Yet the issue resurfaced when the member states of the UN were to adopt the legally binding ICCPR and the ICERDICCPR Article 20 (2) states that, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

The original American proposal had been limited to the prohibition of incitement to violence, a position supported by the UK. However, once again the Soviet Union and allies proposed sweeping prohibitions on free speech.

During the debates, the UK representative argued eloquently for the importance of freedom of expression even in controversial matters. The UK warned against political misuse of the proposal:  “Unscrupulous governments like nothing better than moral justification for their actions.” Extremism should not be fought by criminal law but through open debate, since “the power of democracy to combat propaganda lay . . . in the ability of its citizens to arrive at reasoned decisions in the face of conflicting appeals.”

When challenged by the Soviet Union, the UK representative pointed out that during World War II, Hitler’s Mein Kampf had not been banned in the UK, and that its government “would maintain and fight for its conception of liberty as resolutely as it had fought against Hitler.”

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