Criminalization of free speech only leads in one direction

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When I was a child, my Scottish mother gave me nightmares reading a terrifying book about the 16th century witchcraft trials. Since his favorite play was Arthur Miller’s The Crucible, this was not entirely surprising. The Scottish Puritans who burned nearly 2,500 women at the stake were probably of the same stock as the fanatics who settled in Salem, Massachusetts, where Miller launched his brilliant attack on McCarthyism.

All of this reminded me of when Scotland’s hate crime law came into force two weeks ago. The law prohibits “stoking hatred,” criminalizing comments considered insulting even if they cause no real harm. Violators can be sentenced to up to seven years in prison. Citizens are encouraged to visit their neighbors at Orwellian reporting centers. Some of the fiercest critics of the law are groups of women who are unhappy that it protects transgender identity but not women, and who already feel persecuted for declaring that biology is immutable.

But surely the main problem is this: we, the voters, do not expect to give parliamentarians the power to tell us what to think, nor to imprison us for what we say. Complete stop.

In On freedomhis fundamental defense of free speech, that astute old Scotsman John Stuart Mill warned against the “assumption of infallibility” – being so sure of being right that one makes decisions at will. places people “without allowing them to hear what may be said on the opposite side.”

Mill could have been writing about our own self-righteous times. In Britain and the United States, some on the left do not even recognize the existence of “cancel culture” and accuse the right of inventing a culture war. Some on the right censor classroom discussions and ban books from public libraries (in the US) or stoke fear of immigrants (in the UK). Recent surveys reveal that a large majority of Americans worry that people are too uncomfortable to say what they think. In the United Kingdom, a poll found that 76 percent of respondents said they had restricted their opinions in public for fear of harassment.

The best antidote to prejudice has always been debate and discussion. It is true that the echo of social networks makes things more difficult: the level of hatred against Jews, Muslims and transgender people online is appalling. But surely it would be better to remove crowd anonymity on social media rather than create a new anonymous crowd, as Scottish law does.

The project already seems to be collapsing. Humza Yousaf, Scotland’s first minister, has been reported to police for saying rapist Isla Bryson, who was sent to a women’s prison, was “not a real trans woman”. The police are overwhelmed, with more than 7,000 complaints of “hate crimes”. Critics fear there won’t be time to investigate other crimes. A Christian vicar has mocked a series of bizarre and arrogant Police Scotland posters, including one which read: “Dear bigots, you cannot preach your religious hatred here, end of sermon”. The lawyers are having a field day – which is always a sign of bad politics.

All of this makes me wonder if we need to stop trying to crack down on crime and go back to letting people say what they think, unless they are violent or directly inciting violence. If you go too far, you risk not dispelling prejudices, but simply scaring ordinary people. In making this argument, I am aware that I should accept that people will say things that I find outrageous or worse – Holocaust denial, for example. I hate David Irving, who was imprisoned in Austria in 2006 for denying the Nazi extermination of European Jews. But why imprison him? All that was left of his credibility was enough to be destroyed.

Fear makes people want to protect themselves, and that’s understandable. But politicians should calm things down and not make us fear each other. Most days I sit on the London Underground under authoritarian posters warning me not to assault a member of staff or stare at anyone. What I actually see, when I look around me, are people making space for each other, saying thank you, helping those who need it. We have made enormous progress in overcoming intolerance of racial and gender differences and in judging people for who they are, not what they look like.

The criminalization of speech only leads in one direction: toward authoritarianism. Police in England and Wales have spent years recording “non-criminal hate incidents” rather than investigating robberies and murders. Comedians, including Rowan Atkinson, have had to defend their art against censorship by lawmakers. The alternative is that we all exercise more restraint when upsetting things are said and be willing to listen to the other side.

Some say it is too late, that the viciousness of social media and public polarization is irreversible. But I do not agree.

One of the most heartening stories in recent years is that of the imam who came to the defense of a Northern Irish preacher on trial under blasphemy laws for calling Islam “satanic”. Instead of being offended by this odious and gratuitous remark, Dr. Muhammed Al-Husseini expressed his “deep concern and opposition to the criminalization of theological disagreement, at a time when our society should encourage better quality disagreement,” and said that if the pastor was found guilty, he would go to prison with him.

Many people are furious at the illiberalism of Scotland’s new law and Yousaf’s incompetence. But they are not asking for him to be burned alive. This is not how democracy works. Or at least it wasn’t.

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