I hadn’t realized that if, in the UK, if you express lawful speech, you can still be put in police records for creating a “hate incident”, described by the first link below (from the BBC) this way:
A hate incident is “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice”, according to the College of Policing’s guidance on hate crimes.
(Note that it’s the perception of the “victim”—or anyone else—that makes it an “incident”. Intention itself doesn’t matter, just the perception of intention.)
And a Brit named Harry Miller, a retired policeman, created a “hate incident” by issuing, in 2018 and 2019, a number of tweets that were considered “transphobic”, including one that questioned whether transgender women were “real women”. Another tweet said “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.” That was reported as another transphobic hate tweet.
So someone complained, the cops showed up at Miller’s house and questioned him, and although his speech was legal, a record and a report of Miller’s behavior was made by the police.
Click the screenshot to read more:
Miller wasn’t going to take this lying down:
Humberside Police visited Harry Miller in January 2020 after a complaint over alleged transphobic tweets he made.
It was recorded on a national database as a non-crime hate incident.
But the Court of Appeal ruled on Monday the guidance was wrongly used and it had a “chilling effect” on Mr Miller’s freedom of speech.
Speaking outside court, Mr Miller, from Lincolnshire, said being offensive was “one of the cornerstones of freedom”.
“Being offensive is not, cannot and should not be an offence,” he said.
“Only when speech turns to malicious communication or targeted harassment against an individual should it be a problem.”
That, in effect, is what the First Amendment in the U.S. stipulates. While Twitter can take down Miller’s tweets as “violating community standards,” the government, in the form of the police, cannot prosecute you, nor can it give you a permanent record for doing nothing illegal.
Miller first challenged Humberside Police’s actions at the High Court, which ruled in February 2020 that the force’s response was unlawful and a “disproportionate interference” with Mr Miller’s right to freedom of expression; but also ruled that the guidance itself was legal, served “legitimate purposes” and was “not disproportionate.” That’s when Miller took his case to the higher Court of Appeals.
And the Court of Appeals just ruled for Miller (Britain’s Free Speech Union helped with the appeal):
The Court of Appeal said national rules set by the College of Policing had placed too much emphasis on the perception of transphobic hostility, despite no evidence recorded by police.
Dame Victoria Sharp, one of England’s most senior judges, said: “The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility… regardless of whether there is evidence that the speech is motivated by such hostility.
“The volume of non-crime hate speech is enormous and the police do not have the resources or the capacity to investigate all the complaints that are made.
“There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.”
The court heard the guidance had been revised with updates including “a strong warning against police taking a disproportionate response to reports of a non-crime hate incident”.
However, Dame Victoria added: “In my opinion [the revisions] do not go very far or not nearly far enough to address the chilling effect of perception-based recording more generally.”
An analysis of what all this means was made by Dominic Casciani, the Home and Legal Correspondent for the BBC:
Today’s ruling backs Harry Miller’s legal right to speak his mind and potentially cause offence – a freedom that he says is fundamental in the battle of ideas in a democratic society.
His victory is a headache for the College of Policing, which now has to come up with new “safeguards” to ensure that any future recording of non-crime hate incidents does not disproportionately interfere with the legal right to speak one’s mind.
That means rethinking guidance that dates back to the fallout from the 1993 racist murder of Stephen Lawrence.
Mr Miller says it was obvious back then what the police should have been recording: genuinely hateful gestures that were a prelude to awful crimes. He urges them today to remember that lesson and to focus on rooting out hate speech – rather than taking it upon themselves to police provocative thought and debate.
So the College of Policing has been called off, and has to rethink what it does vis-à-vis “hate speech”.
What this has come down to is a tentative ruling that takes British law on speech closer to the U.S. First Amendment, but it’s not all the way there yet. For example, saying “gas the Jews” is legal in America, but almost certainly not in Britain. And posting a video on YouTube of a dog making a Nazi salute might violate YouTube’s standards, but it’s not illegal in America. But in the UK it is, for in 2018 Mark Meechan was convicted of a “hate crime” in Scotland for an action that caused physical damage to nobody. It only hurt feelings. As the Washington Post reported:
[Meechan was] guilty of a charge under the Communications Act that he posted a video on social media and YouTube that was “anti-semitic and racist in nature” and was aggravated by religious prejudice.
Meechan was fined £800 pounds, which was seized from his bank account. I’m sure you remember the Nazi Dog Incident.
I don’t see America as the best country in the world, but it is one of the best for freedom of speech, and is superior to the UK in dealing with “hate speech”. For “hate speech” is a slippery term, and there is no good reason I can see for someone training a dog to make a Nazi salute or emitting tweets that weren’t really transphobic (though truly tranphobic tweets, like, “transsexuals shouldn’t have the same legal rights as cis people”, would also be legal). The issue is whether society incurs damage by allowing such speech, or whether it’s damaged more by chilling such speech. My view aligns with that of Mill and Hitchens, and goes along with the American court’s interpretation of the First Amendment: unless your speech creates immediate, predictable, and imminent harm to people or property, it is legal. Private companies can ban it, but the government cannot.
Miller was clearly being “chilled” by the UK’s hate-speech policy. If the government can decide that speech that hurts nobody, and is merely offensive, is illegal or can give you a mark against your name for perpetuating a “hate incident”, then speech has the potential to be impeded. And, as we know in these fraught days, nearly anything can be seen as hateful or offensive.