President Trump has retweeted three videos posted by Jayda Fransen, an English anti-Muslim activist. It has been reported that Fransen has been convicted of a “hate crime” and charged with two others in the UK. Closer inspection reveals that the laws she has purportedly broken are mildly Orwellian – with apologies to Ben Judah. The “hate crimes” she is being charged with seem to have been instances of political statements made in public, possibly in an offensive manner – the kind of speech that would be protected by the First Amendment of the US Constitution.
According to Wikipedia’s summary of Fransen’s conviction, in November 2016…
….Fransen was convicted of religiously aggravated harassment after she harassed a Muslim mother-of-four because she was wearing a hijab and ordered to pay a fine of £1,000. In addition, she was also fined £200 on account of breaching the Public Order Act 1936 by wearing a political uniform and ordered to pay £620 in costs (including a £100 surcharge)…
From other sources, it is clear that the alleged harassment occurred during a verbal altercation and involved no threat of violence. This case, however, is complicated by the allegation that Fransen approached her involuntary interlocutor against the lady’s wishes, which would push this case from the freedom of speech area into disorderly conduct territory.
The charges currently pending are these, according to Wikipedia again:
In September 2017, Fransen was… charged with religious harassment. Their arrests followed an investigation by Kent Police into the distribution of leaflets in the Thanet and Canterbury areas, and the posting of online videos…
Here, the offending acts involved the distribution of verbal or visual information (leaflets and videos) to the public – a criminalized variety of political speech.
On 18 November 2017, Fransen was arrested in London by detectives from the Police Service of Northern Ireland following a speech she had made at a rally held outside Belfast City Hall on 6 August. She was charged with employing “threatening, abusive or insulting words or behaviour”…
We’re dealing with a speech at a public rally here, so the imputed offense is a speech crime, as it were.
If I understand correctly, offensive speech was criminalized by the 1986 Public Order Act. It has been amended several times, with new varieties of prohibited speech being introduced, but it remains the legal root cause of “hate speech” prosecutions. The Act does not distinguish between a pack of drunks hurling racial slurs at a passer-by and a speech at a peaceful gathering. All that matters is the content of the speech: if it’s deemed abusive or threatening, even potentially, the speaker has broken the law.
The US, in contrast, has the First Amendment. Every now and then, some state or federal statute gets struck down by a court as violating the free speech clause of the US Constitution. (See, for instance, Prof. Eugene Volokh’s latest post, “Ban on speech ‘about a person’ that negligently causes ‘significant mental suffering, anxiety or alarm’ struck down.”) Recall Fred Phelps and his crazies holding “God hates fags” signs at Matthew Shepard‘s funeral and, later, at the burial of an American Marine killed in action in Iraq. The later gave rise to Snyder v. Phelps, in which the Supreme Court affirmed the homophobes’ right to speak out without getting sued for the hurt caused. In general, it can be said that hate speech, as long as it’s political and public, is protected speech in the US.
However, while federal and state authorities may not restrict speech based on content, they have the right to outlaw certain ways of speaking. Understandably, it may be against the law to stop passers-by to yell insults at them. If Fransen accosted the Muslim lady in the street and subjected her to an unpleasant harangue, that could be an offense again public peace and order under state-level laws in the US.
It is the third, the latest charge against Fransen that is particularly alien to the American legal tradition. Getting arrested for something you said at a public rally smacks of WWI persecution of pacifists and of Eugene Dobbs’ imprisonment.
To sum up, if someone pointed out (again) to President Trump that Jayda Fransen has been convicted of a “hate crime” and is charged with two more in the UK, he could simply say that “hate speech” is no less protected by the US Constitution than love, peace and harmony speech, and that’s not negotiable.
All that matters is the content of the speech: if it’s deemed abusive or threatening, even potentially, the speaker has broken the law.
It could be worse. The UK defines a “racist incident” as anything perceived by anyone whatsoever as being “racist”, without any definition necessary. It was an appalling law brought in by Jack Straw during the Blair years, and open to any interpretation the police or CPS feel like. In hindsight, this looks like a feature rather than a bug.
Wasn’t it one of the recommendations of the Macpherson report adopted by the government?