Racists must go to jail. Or must they?

Village IdiotsThere was a worrying criminal case last week about racism and free speech. I say “worrying not only because of the racist chanting by the individuals who have now been convicted, but more so because they were convicted of a crime at all and received pretty heavy sentences.

On 30 October a group of six knuckle-dragging Charlton Athletic football supporters were given sentences ranging from eight months to eighteen months for chanting songs on a train which “glorified and idolised” the murder of the black teenager Stephen Lawrence, who was killed in a racially-motivated attack in 1993 and whose murder served to highlight some pretty sickening institutional racism within the Metropolitan police. A seventh racist received a suspended sentence.

The case has some uncomfortable parallels with the case of Liam Stacey (which I covered here), who was sentenced to 56 days in jail for posting racist tweets about the black footballer Fabrice Muamba in 2012.

Both cases concerned racist speech and its now almost inevitable criminal consequences. The similarity that struck me most, though, wasn’t just that racist speech is now apparently criminal by definition, but that in both instances the BBC’s online reports stopped short of providing details of the underlying speech that resulted in the convictions. One might have thought this would be a key component of the BBC reports.

It’s as though merely reporting racist speech which is the subject of a criminal trial might place someone at risk of committing a racist crime today – and that’s putting to one side whether the criminal law should even apply to the original speech at all. As I said in my earlier post, the journalist Nick Cohen has made a similar point about Pakistan’s hideous blasphemy law: even just criticising the blasphemy law, rather than actually blaspheming itself, can be a very risky endeavour in Pakistan. Cohen calls this “blaspheming against the blasphemy law”.

I have deliberately not researched in detail exactly what words the morons on the train said. Perhaps these village idiots did cross the line between mere offence and “racially aggravated fear of violence”. Why couldn’t the BBC, our “public service broadcaster”, just tell me what they said in their report? And in any case, eighteen months? Eighteen months? You can serve three of four years for manslaughter, for goodness sake. And if racist songs on a train are criminal then how about the murder-inciting sermons of vile Islamic clerics, on television? I’d say those represented a far more credible threat of violence. Is there any chance that the long arm of the law might extend to these guys one day? (That’s a rhetorical question, obviously. And probably racist too. And therefore probably criminal. I better stop there.)

It would be rather nice if we could condemn racist or other unpleasant speech without criminalising it. It would be rather nice if people were capable of drawing a clear distinction between speech which is merely offensive and speech which constitutes the incitement of violence or a credible death threat.

But unfortunately an inability to understand or value free speech amongst the general population and also amongst our politicians (who seem too preoccupied regulating speech rather than making it free) means that most people instinctively reach for a deceptively comforting big red switch when faced with unpleasant speech generally and racist speech in particular – a switch labelled Make it Criminal. Broadly I would separate speech into three categories for the purposes of the law.

Firstly there is speech which is and should be criminal: death threats; incitement to violence; and contempt of court or contravention of court orders (for example, naming rape victims or breaching the terms of an injunction).

Secondly there is speech which constitutes a civil wrong but not a criminal wrong. Libel, basically.

And thirdly there’s everything else. Let’s call this the rough and tumble of free speech. Don’t like free speech? Not a problem. Feel free to migrate to somewhere that doesn’t have it (you might want to select “return journey” when you book your flight though, just in case).

The best way to defeat bad ideas is with good ideas. The best way to expose bad ideas is to let them be heard. Just ask Nick Griffin, Oberführer of the British National Party, who thought he had secured a massive PR victory when he was invited on to BBC’s Question Time a few years ago. Sadly for Griffin, though, it was our democracy that secured the PR victory because the spotlight and microphone showed everyone just what a fool he was, and he hasn’t recovered from it.

This positive aspect of a bad use of free speech isn’t merely theoretical. Here’s a practical example of the good consequences of Griffin’s hapless appearance: one young man from Cumbria called Alistair Barbour who had become involved with the BNP – even working very closely with Griffin personally – finally woke up and left the organisation, renounced the BNP’s ideology and started recording his experiences in a blog.

My guess is that people are so concerned with proving they’re not racist that they can no longer distinguish between the undesirability or immorality of racist speech, and whether it should be criminal. They default to their pathetic factory setting of “if in doubt, just say it should be criminal”. It’s safer that way. Because if you don’t say racist speech should be criminal then you might just be a racist yourself. The ability of people to think and debate critically and calmly on the subject of racism has essentially vanished. Critical thinking involves, well, thinking. And that’s the problem. People can’t think. They think they can, but they can’t.

It takes moral courage and an understanding of the real, practical importance of open discourse to permit free speech and free expression which is racist or offensive. And not just to permit it, but to positively defend it. For all their faults in the reporting of the above criminal cases the BBC also managed to publish something rather more inspiring on their website last week. Again, the subject was racism and free expression. In 1996 a black teenager in Michigan called Keisha Thomas physically protected a white man from a violent mob who thought he supported the KKK when they saw an SS tattoo on his arm. The mob surrounded the man, kicking him and hitting him with the wooden sticks of their placards.

So what did Thomas do, you might ask. Call the police to arrest the man for racism? Scream about how offended she was? Well not exactly. Not at all, in fact. She threw herself on top of him to protect him. She shielded a complete stranger from serious harm and in doing so placed herself in harm’s way. This was a stranger who most probably hated her for no reason other than her dark skin and who it is logical to assume wouldn’t have returned the brave favour if the tables were turned.

And this is the important point; this is what it really boils down to. Thomas said:

“Nobody deserves to be hurt, especially not for an idea.”

And nobody deserves to be jailed simply for saying racist things either. There, I said it. Can you?