Free speech & the law: “Hate Speech” & Non-Discrimination

28 Jan 20 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

[vc_row][vc_column][vc_column_text css=”.vc_custom_1579268532812{margin-bottom: 30px !important;background-color: #f5f5f5 !important;}”]Please note: This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exist for free speech and where the law currently permits restrictions.[/vc_column_text][vc_column_text]This guide is available to download as a PDF here.[/vc_column_text][vc_single_image image=”112122″ img_size=”large” add_caption=”yes” alignment=”center”][vc_raw_html]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[/vc_raw_html][vc_custom_heading text=”1. Overview” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes” el_id=”ct1″][vc_column_text]Although there is no single “hate speech law” in the UK, nor any agreed international definition of the term, a number of laws forbid hatred or discrimination against individuals or groups, which can include things people say, based on colour, race, ethnicity and nationality, religion, and sexual orientation.

UK and European law allows free speech to be limited to protect people from suffering abuse on account of who they are. The criminal law and civil law in the UK have developed in such a way as to protect different characteristics differently. This guide will explore the laws that protect citizens against incidents of discrimination and hate in England and Wales that are most likely to encroach on an individual’s free expression rights. We also look at discrimination law, a type of non-criminal law, providing people with the means to sue individuals or organisations who discriminate against them because of certain “protected characteristics”.

Hate Crimes

Hate crimes are generally understood to involve someone committing a crime who, in the course of doing so, demonstrates or is motivated by hostility towards someone based on certain characteristics. The UK’s criminal law currently responds to hate crime in three main ways:

  1. Criminalising conduct, including expression, that is intended or likely to “stir up hatred” on grounds of race, or is intended to do so on grounds of religion or sexual orientation.
  2. Creating separate “aggravated offences” for specific crimes which demonstrate or are motivated by hostility towards a person’s race or religion.
  3. Giving courts greater sentencing powers if in committing the crime the perpetrator was motivated by hostility towards a person’s race, religion, sexual orientation, disability, or transgender status.

The police and Crown Prosecution Service record data on hate crimes for five protected characteristics: race, religion, sexual orientation, transgender status, and disability. However, as may be noted from above, there is inconsistency in the way these five characteristics are treated in the law. Other characteristics, such as gender and age, are not specifically protected by the criminal law. For example, there is no offence of stirring up hatred on the grounds of someone’s disability. The Law Commission (the statutory body in charge of reviewing the UK’s laws) is currently undertaking a review of the protections offered by hate crime legislation.

Discrimination Law

The Equality Act 2010 protects a greater range of characteristics than the hate crime legislation. The act protects people from discrimination (less favourable treatment) on grounds of their age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, or sexual orientation. It enables private individuals to sue a person or organisation for discriminating against them on the protected grounds in various contexts, including in employment (including from the application and recruitment stage), in the provision of services, and in education. If the court finds discrimination has occurred, then it can award damages (including for injured feelings), or order an injunction or declaration.[/vc_column_text][vc_column_text css=”.vc_custom_1580136685403{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

The difference between civil proceedings and criminal prosecutions

Since crimes are viewed as harmful not only to individuals but also to communities, they are pursued and punishable by the state through the criminal justice system. Criminal prosecutions in England and Wales are pursued by government lawyers working for the Crown Prosecution Service, known as prosecutors. They are tasked with delivering justice for and on behalf of their communities and upholding the rule of law (the idea that a state should be governed by law, not the arbitrary decisions of individual government officials).

Prosecutors must identify cases that are worth pursuing in court, and conduct the case in court. In identifying cases to pursue, prosecutors must ensure the case has enough evidence, and that it is in the public interest to pursue it. Prosecutors will work closely with the police to build their case since the police will usually hold much of the evidence about a case. If a person is found guilty of a crime, they will usually undergo some sort of punishment, which could include prison time and/or a fine, and they may have to pay compensation to the victim.

Civil court proceedings are brought by private individuals. There is no state body pursuing these proceedings on behalf of individuals, even though the harmful act might be considered to be harmful to the community at large. The civil courts do not imprison people, but they can award compensation to the injured party (in the form of damages) and make public declarations (for example, that an act by a public body was illegal), and order people to do or refrain from doing certain acts. People pursuing civil proceedings will usually have to pay for their legal assistance, although they might receive legal aid, which will help pay for their legal costs, and if they win their case, they may have their legal costs paid for by the losing party.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”hs2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. What does international law say about hate crimes?” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The UK ratified the International Covenant on Civil and Political Rights (ICCPR) in 1976. This is an international human rights treaty requiring the UK to respect and protect many human rights. Article 19 of the ICCPR sets out the right to freedom of expression, which includes the “freedom to seek, receive and impart information and ideas of all kinds”. However, the right may be restricted to respect the “rights or reputations of others”.

Article 20(2) of the ICCPR states:

“Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Article 4 of the Convention on the Elimination of Racial Discrimination, which the UK ratified in 1969, states:

“States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin…and:

(a)   shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts.”

The UN Special Rapporteur on freedom of expression issued guidelines on Article 19(3) of the ICCPR (restrictions on freedom of expression) in 2001. Regarding hate speech, these stated:

“The Special Rapporteur is aware of, and concerned by, the potential harm, whether psychological or physical, which can result from hate speech, in particular incitement to violence, heightened tensions between groups of different cultural, ethnic, racial and religious identities and the perpetuation of stereotypes.

In light of these concerns, the SR recognises that hate speech calls for reasonable restrictions which are necessary to prevent incitement to acts of imminent violence, hatred or discrimination on grounds, among others, of race, religion, colour, descent, or ethnic or national origin. 

At the same time, the SR expresses concern about the possibility of such prohibitions being abused, particularly where respect for human rights and the rule of law is weak and hate speech laws have been used in the past against those they were intended to protect.” 

The Special Rapporteur recommended that any law prohibiting so-called hate speech should, at a minimum, conform to the following:

  1. No one should be penalised for true statements;
  2. No one should be penalised for the dissemination of hate speech unless it has been shown that the perpetrator had the intention to incite discrimination, hostility, or violence;
  3. The right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance;
  4. No one should be subject to prior censorship;
  5. Sanctions imposed by courts must be proportionate;
  6. Crimes interfering with free expression rights must be narrowly defined in clear terms.

The treaty obligations set out in the ICCPR and the Convention on the Elimination of Racial Discrimination are duties with which the UK has agreed to comply. The Special Rapporteur’s guidelines outline how the UK should comply with its obligations under the ICCPR.[/vc_column_text][vc_custom_heading text=”The European Court of Human Rights & The Human Rights Act” use_theme_fonts=”yes”][vc_column_text]The European Court of Human Rights has the power to review the UK’s laws and government actions and determine whether it has acted in accordance with human rights law. The European Court of Human Rights has considered a number of cases from the UK concerning people who were convicted of criminal offences over speech inciting hatred based on prejudice against a particular group. 

The court has tended to rule that convictions for such speech do not violate a person’s free expression rights under Article 10 of the European Convention on Human Rights (ECHR). That is because, first, such expression goes against the ECHR’s core values of tolerance, social peace, and non-discrimination. These types of claims are therefore usually blocked by Article 17 of the ECHR, which says that nothing in the ECHR can be interpreted as giving a person a right to engage in activities “aimed at the destruction of any of the rights and freedoms” in the ECHR. Secondly, the court has often found that restrictions on free speech rights are justified on one of the grounds set out in Article 10(2) of the ECHR.[/vc_column_text][vc_column_text]

Restrictions on free expression

Article 10(2) of the European Convention on Human Rights (ECHR) says that the right to freedom of expression “carries with it duties and responsibilities”. Because of this, the right to free expression may be subject to restrictions and conditions that are necessary in a democratic society and are set out clearly in the law. Any restrictions must be for one or more of the following purposes: national security, public safety, territorial integrity, preventing crime or disorder, protecting health or morals, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.

Article 17 of the European Convention on Human Rights states: “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”[/vc_column_text][vc_column_text css=”.vc_custom_1580137953168{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Norwood v. United Kingdom

Mark Norwood was a regional organiser for the extreme right-wing political group, the British National Party. In 2003, he tried to persuade the European Court of Human Rights that it should support his right to freedom of speech by letting him put up a poster in his living room window, with an image of the Twin Towers in flames and the words “Islam out of Britain – Protect the British People.” It also featured a symbol of a crescent and star (a symbol associated with Islam) in a prohibition sign.

Norwood had been convicted of an offence under Section 5 of the Public Order Act 1986 (discussed below) as aggravated by Section 31 of the Crime and Disorder Act 1998, which together criminalise displaying, with hostility towards a racial or religious group, any writing, sign or other visible representation which is threatening, abusive or insulting, within the sight of a person likely to be caused harassment, alarm or distress by it. Norwood was fined £300. He appealed his conviction to the High Court, which dismissed his appeal. Lord Justice Auld held that the poster was “a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people.”

Norwood then took his case to the European Court of Human Rights in Strasbourg, arguing that his conviction violated his right to free expression under Article 10 of the ECHR.

He argued, quoting a judgment in a previous freedom of speech case, that “free speech includes not only the inoffensive but also the irritating, contentious, eccentric, heretical, unwelcome and provocative, provided that it does not tend to provoke violence.” Norwood also argued that “criticism of a religion is not to be equated with an attack upon its followers” add said he lived in a rural area and did not think any Muslim person had seen the poster. 

The court did not agree and the case was declared “inadmissible”. They looked to Article 17 of the ECHR, which they said was designed to prevent people with “totalitarian aims” of exploiting the human rights in the ECHR “in their own interests”. They said Norwood’s poster:

“amounted to a public expression of attack on all Muslims in the United Kingdom.  Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination.”

Since Norwood’s display of the poster was an “act aimed at the destruction” of ECHR rights, it was contrary to Article 17 ECHR and it was not protected by Article 10.

When UK courts are deciding on human rights issues, the Human Rights Act says they must “take into account” any judgments handed down by the European Court of Human Rights. There have been various debates about what “taking into account” really means, but the upshot is that what the European Court of Human Rights says on human rights issues is very impactful. It means that courts in England and Wales will generally adopt the approach taken by the European Court of Human Rights unless there is a good reason not to.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”hs3″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”3. Hate crimes explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]

Stirring up hatred on racial, religious, or sexual orientation grounds

UK law criminalises conduct that is likely or intended to “stir up” racial hatred, or that involves threatening behaviour that is intended to stir up hatred on grounds of religion or sexual orientation. 

“Conduct” includes the use of hateful words, but also a broad range of expression, such as displays of text, books, banners, photos and visual art, the public performance of plays and the distribution or presentation of pre-recorded material. In all three cases, a magistrate can grant the police a warrant to enter and search premises to locate any material that incites hatred on racial, religious or sexual orientation grounds.

Acts intended or likely to stir up racial hatred

The offence of stirring up racial hatred, located in Section 18 of the Public Order Act 1986, is set out below:

  • A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—
    a) he intends thereby to stir up racial hatred, or
    b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

The patchwork history of the “stirring up” offences

The “stirring up” offences were established in the wake of decades of efforts to challenge discrimination in the UK. The offence of incitement to racial hatred was originally enacted in the Race Relations Act 1965 before migrating to the Public Order Act 1986. It was joined by the new offences of incitement to religious hatred in 2006, and incitement to hatred on sexual orientation grounds in 2008. The legislation has developed in a piecemeal way, and as barrister Ivan Hare QC points out, “[i]n the course of the debates about the introduction of each of these offences, no coherent account has been given as to why protection against incitement to hatred should be confined to the three characteristics of race, religion and sexual orientation.”

The passage of the Racial and Religious Hatred Bill in 2006, which introduced the new offence of inciting religious hatred, was particularly controversial. The offence was introduced largely to offer greater protection to Muslims in the wake of reprisals after the September 2011 attacks in 2001. However, broadcasters, authors and a range of other secular and non-secular groups expressed concerns the offence would limit their free speech rights. The then Executive Director of the National Secular Society argued the “inevitable consequence of this proposed legislation would be to protect religious dogmas and beliefs from insult and mockery.”

English PEN and a number of free expression groups lobbied for further amendments to protect free speech from inappropriate use of the act.[/vc_column_text][vc_column_text css=”.vc_custom_1580138359641{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

The PEN amendment

Section 29J of the Public Order Act 1986 (the so-called “PEN amendment”) states that the rules on public order must not be applied “in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system”.[/vc_column_text][vc_column_text]

How do the stirring up offences work?

Racial Hatred

Racial hatred is defined in the Public Order Act 1986 as “hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.” Sections 18 to 23 of the Public Order Act 1986 set out several specific acts where racial hatred is likely to be stirred up. The following acts are therefore crimes, if (and only if) by doing them, the perpetrator intends to stir up racial hatred, or, given all the circumstances, the act is likely to stir up racial hatred:

  • Using threatening, abusive, or insulting words or behaviour
  • Displaying, publishing, or distributing written material which is threatening, abusive, or insulting
  • Public performance of a play involving the use of threatening, abusive, or insulting words or behaviour
  • Distributing, showing, or playing a visual or sound recording which is threatening, abusive, or insulting
  • Broadcasting a programme involving threatening, abusive, or insulting visual images or sounds 

The term “written material” refers to “any sign or visible representation” and therefore includes imagery, paintings or other forms of physical artistic expression.

Remember that to be a criminal offence, the perpetrator must have acted with intent to stir up racial hatred, or it must have been likely that their action(s) would have caused racial hatred to be stirred up. For the offence of using words or behaviour that are threatening, abusive, or insulting, the alleged offender has a defence if:

  • It cannot be proven that their actions were intentionally threatening, abusive or insulting and the accused was not aware they might be so received;
  • It can be proven that the action took place inside a private dwelling and that the accused had no reason to believe that their words or actions would be heard or seen by persons outside it.

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Case study: Inciting racial hatred

Lawrence Burns was a member of National Action, a far-right neo-Nazi terrorist organisation based in the UK. He operated a Facebook account under an alias, onto which he posted virulently racist updates, comments, and links, aimed primarily at Afro-Caribbean and Jewish communities. His messages promoted militant action against them, with the aim they should be eliminated, to make way for “an advanced warrior race consisting of white men and women”. Material found on Burns’ laptop showed material that extolled Adolf Hitler as “the ultimate being” and which expressed other anti-Semitic views. He was charged with stirring up racial hatred by publishing written material, contrary to Section 19(1) of the Public Order Act 1986 (count 1).

In May 2015, Burns made a speech during a demonstration staged outside the United States embassy in London. He said that non-white immigrants were “rapists, robbers, and murderers” and Jewish people were “parasites and bankers” who wanted to create a “mongrelised” race. The speech was filmed and posted on YouTube. For this, Burns was charged with stirring up racial hatred through words or behaviour, contrary to Section 18(1) of the Public Order Act 1986 (count 2).

Burns’ defence was that his Facebook comments were intended to be “private banter” and his speech – while not private banter – was not intended to stir up racial hatred and was not likely to do so.  The jury found him guilty on both counts. 

Burn’s four-year sentence was cut following an appeal, although appeal court judge Mr Justice Phillips noted : “whilst freedom of speech is a fundamental freedom of our society, [Burns’] conduct in this case went far beyond what was regarded as acceptable. It was designed publicly to promote racial hatred, to mobilise the applicant’s listeners, and to encourage them to move from ideas into action.”[/vc_column_text][vc_custom_heading text=”Insulting, threatening and abusive” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]The meaning of “threatening, abusive, or insulting” is not defined in the legislation. The meaning is likely to be interpreted by the courts in the same way that they interpret the phrase “threatening, abusive, or insulting” for the Intentional Harassment, Alarm and Distress under Section 4A Public Order Act 1986. Please see the Public Order guide for more guidance on what these words mean.

In a 1973 case, the United Kingdom’s highest court ruled that “insulting” should be given its “ordinary meaning” – and whether words or behaviour is insulting is a question to be determined on a case-by-case basis by a jury. The same approach applies to the words “offensive” and “abusive”. Where swear words are coupled with racial slurs, it seems that this is “almost undeniably abusive” (see Director of Public Prosecutions v Humphrey (2005)).

Possession of racially inflammatory material

A person who has in their possession written material or a recording of sounds or visual media which is threatening, abusive or insulting commits an offence if they intend to distribute, publish, show, or display the material, and they intend to stir up racial hatred (or such stirring up is likely) in so doing. It is a defence to this crime if the accused is not aware they have the material in their possession and had no reason to suspect it was threatening, abusive, or insulting.

If a police officer has reasonable grounds for believing racially inflammatory material will be found at certain premises, a magistrate can issue a warrant for the search those premises.

Religious hatred and hatred on grounds of sexual orientation

It is an offence under Section 29B of the Public Order Act 1986 for an individual to use threatening words or behaviour, or display any written material which is threatening, that is intended to stir up hatred on the grounds of religion or sexual orientation.

Hatred on sexual orientation grounds is defined in the legislation as “hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both”, (Public Order Act 1986, Section 29AB). Religious hatred is defined in the legislation as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”, (Public Order Act 1986, Section 29A).

It is important to note that the offences related to hatred of religious groups or sexual orientation are more narrowly defined than racial hatred offences in two specific ways.

First, unlike racial hatred offences, offences related to hatred of religious groups or on sexual orientation grounds apply only where the words, images or conduct are “threatening”. No offence is committed by using words, images or behaviours that are merely insulting or abusive. An act is likely to be considered “threatening” if it is clearly intended to place people in fear for their safety or wellbeing. Words or actions that are intended or likely to upset, shock or offend are unlikely to count as “threatening”.

Secondly, a person must intend to stir up religious hatred or hatred on sexual orientation grounds. The mere likelihood that a person’s act might stir up hatred, or even the fact that it did, is not sufficient for a conviction in respect of religion and sexual orientation.

The fact that only threatening conduct that is intended to stir up hatred on the grounds of religion or sexual orientation is criminalised means that a narrower range of conduct is prohibited on these grounds, and, conversely, a broader range of conduct is prohibited in the context of race. Regardless, if it can be shown that a person intended to stir up hatred on the grounds of religion or sexual orientation by doing any of the following, their behaviour will be a crime unless a defence applies: 

  • Using threatening words or behaviour
  • Displaying, publishing, or distributing written material which is threatening
  • Public performance of a play involving the use of threatening words or behaviour
  • Distributing, showing, or playing a visual or sound recording which is threatening
  • Broadcasting a programme involving threatening visual images or sounds

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Discussion of marriage and sexual practice is not a hate crime

The Public Order Act 1986 provides that the discussion or criticism of “marriage which concerns the sex of the parties to marriage” and “sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices” shall not be taken of itself to be threatening or intended to stir up hatred. 

This provision seeks to ensure that views critical of same-sex marriage or sexual conduct generally are not criminalised under the hate offences.[/vc_column_text][vc_custom_heading text=”Religious and racially aggravated offences” use_theme_fonts=”yes”][vc_column_text]The Crime and Disorder Act 1998 introduced a new series of “racially or religiously aggravated” crimes. These are the existing crimes such as assault or damage to property, but which are perceived to be motivated by hostility or prejudice based on a person’s race or religion (or perceived race or religion).  They carry higher sentences than the underlying crimes.

In addition to higher sentences for the specific racially or religiously aggravated crimes, Section 145 of the Criminal Justice Act 2003 provides for increased sentences for any other crimes that are found to be racially or religiously aggravated. If the offence was racially or religiously aggravated, the sentencing judge must say so in open court and take that factor into account when handing out a sentence. It is the sentencing judge’s decision by how much (if any) to increase a sentence if there is found to be a religious or racial aggravation.

Section 146 of the Criminal Justice Act 2003 applies if the perpetrator of an offence was motivated by hostility based on a person’s sexual orientation, disability, or status as a transgender person. The court must treat that motivation as an aggravating factor for the purposes of imposing an appropriate sentence. 

Racially or religiously aggravated Public Order offences

Certain public order offences can be racially or religiously aggravated. These offences are explained more fully in our Public Order guide. These offences criminalise certain types of speech, written material, and behaviour, and so may have free speech implications. It is worth noting, however, that the European Court of Human Rights has consistently ruled that expressions of religious and racial hate are not protected by Article 10 of the ECHR because they are incompatible with the convention’s fundamental values, including tolerance, social peace, and non-discrimination.

The racially or religiously aggravated public order crimes include:

Fear or Provocation of Violence – Section 4 – Public Order Act 1986

  • Using threatening, abusive, or insulting words or behaviour in such a way as to make a person think unlawful violence will be used against them imminently or to provoke violence.
  • Distributing or displaying material which is threatening, abusive, or insulting in such a way as to make a person think unlawful violence will be used against them imminently or to provoke violence.

If charged as a “racially or religiously aggravated” crime, this offence carries a maximum penalty of two years’ imprisonment and a fine. Without aggravation, the maximum sentence is six months imprisonment and a fine.

Intentional Harassment, Alarm or Distress – Section 4A – Public Order Act 1986

  • Using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
  • Displaying material which is threatening, abusive, or insulting.

With the intent and result of causing someone alarm, harassment, or distress.

A person has a defence if they were inside a dwelling and had no reason to believe their words or material would be seen or heard by someone outside. They also have a defence if they can argue their conduct was “reasonable.”

Similar to the above, the maximum sentence for this racially or religiously aggravated offence is two years’ imprisonment plus a fine.[/vc_column_text][vc_column_text css=”.vc_custom_1580141532049{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Racially aggravated intentional harassment

John Keogh, 74, told an Afro-Caribbean member of staff in a south London betting shop that “When Brexit comes you will be gone” and he used a racist slur against her. Keogh was apparently angry that his winnings had been placed on the counter and not in his hand. Keogh pleaded guilty to the racially aggravated charge of using threatening, abusive, and insulting words with intent to cause alarm, distress, and harassment contrary to Section 31(1)(b) of the Crime and Disorder Act 1998 and Section 4A of the Public Order Act 1986. He was ordered to pay £600 in legal costs and compensation and was given a 10-week 8pm to 6am curfew as part of a community order.[/vc_column_text][vc_column_text css=”.vc_custom_1580140834150{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Harassment because of someone’s sexual orientation

In July 2019, a 38-year-old woman was arrested under Section 4A of the Public Order Act 1986 for shouting homophobic abuse at people taking part in a Pride march in London. Footage posted on social media showed the woman, who was wearing a black niqab, shouting “shame on you” to participants – one of whom was wearing a rainbow flag – passing by. She also shouted “God created Adam and Eve, not Adam and Steve. Shame on you, shame on all of you. Shame on you, you despicable people.”

Although the Crime and Disorder Act 1998 did not create a specific aggravated public order offence on grounds of sexual orientation, the police can charge this individual with a (non-aggravated) Section 4A intentional harassment charge. If she is found guilty, and the court also thinks she was motivated by hostility towards the victims’ perceived sexual orientation, then under Section 146 of the Criminal Justice Act 2003, the court will have to treat that as an aggravating factor for sentencing.[/vc_column_text][vc_column_text]

Harassment, Alarm or Distress – Section 5 – Public Order Act 1986

  • Using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
  • Displaying material which is threatening, abusive, or insulting

Within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Where the offender and the victim are both inside a dwelling, no offence is committed. The offender may also have other defences such as being inside a dwelling and having no reason to believe anyone would hear or see his conduct, or that the conduct was “reasonable.” 

When charged as a racially or religiously aggravated offence, the maximum sentence is a fine. A lesser fine can be imposed if the offence is not racially or religiously aggravated.[/vc_column_text][vc_column_text]

Where will a criminal trial for stirring up hatred take place?

Criminal trials in England and Wales take place either in the Crown Court or the magistrates’ court. The more serious crimes take place in the Crown Court and are called “indictable” offences. The less serious crimes take place in the magistrates’ court are “summary” offences. The “incitement to hatred” crimes are known as “either-way” offences, meaning trials can take place either in the Crown Court or the magistrates’ court. There will be a court hearing to decide where the trial will take place. If convicted of a summary offence, the perpetrator of a racial incitement crime may face up to six months’ imprisonment (or twelve months for hatred on grounds of religion or sexual orientation), a fine or both. The more serious indictable offences will be tried by a jury, but on conviction, offenders face up to seven years’ imprisonment, a fine or both. All prosecutions must be approved by the Attorney General (the government’s chief law officer).[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”hs4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Discrimination” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]

The Equality Act 2010

The Equality Act 2010 prohibits discrimination, both by public bodies or private individuals (including companies and organisations), based on certain characteristics. The prohibited conduct defined in the Equality Act 2010 includes direct and indirect discrimination, as well as harassment and victimisation. The Equality Act 2010 does not create criminal offences – it gives people the ability to sue another person for discriminating against them. Breaches of the relevant provisions can only result in declarations or mandatory orders and the award of damages.

The Equality Act 2010 prohibits discrimination on the grounds of one or more of nice “protected characteristics”. These are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex 
  • Sexual orientation

Under the act, discrimination involves treating someone less favourably than others because of their protected characteristic. It also includes applying a discriminatory practice against someone, which puts them at a disadvantage because of their protected characteristic. Harassment entails engaging in “unwanted conduct” relating to a protected characteristic, with the effect of violating a person’s dignity or creating an intimidating or hostile environment for them. Victimisation is where a person is the subject of reprisals for bringing or assisting with an Equality Act claim.

Overview of types of discrimination under the Equality Act 2010

  • Direct discrimination
    • Treating someone less favourably because of a protected characteristic 
    • Indirect discrimination
    • Applying a practice or policy that puts a person at a disadvantage because of their protected characteristic
  •  Harassment
    •  Engaging in unwanted conduct related to a protected characteristic with the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them
  •  Victimisation
    • Subjecting someone to a detriment because they pursued or assisted with civil proceedings under the Equality Act 2010

In a civil case under the Equality Act 2010, the judge will determine, looking at all the evidence, whether it is more likely than not that the alleged perpetrator discriminated against the claimant (in any of the ways listed in the Act). If so, they may make the perpetrator pay compensation to the injured party, or order them to do something or refrain from doing something.[/vc_column_text][vc_column_text css=”.vc_custom_1580141438478{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Social work student unfairly expelled from course

A man who was expelled from a university social work course after a series of Facebook posts in which he called homosexuality as a ‘sin’ and ‘wicked’ won an appeal against the decision to remove him.

The Court of Appeal ruled that the process used by the University of Sheffield process to remove devout Christian Felix Ngole from the MA in social work course “flawed and unfair” to him.

This court ruled the decision was a disproportionate restriction on Ngole’s freedom of expression.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Victory is Not an Option

24 Jan 20 | Art and the Law, Art and the Law Case Studies, Artistic Freedom Case Studies, Campaigns, United Kingdom

[vc_row][vc_column][vc_single_image image=”112095″ img_size=”large” add_caption=”yes” alignment=”center”][vc_column_text][/vc_column_text][vc_column_text]In the lead-up to Maurizio Cattelan’s Victory is Not an Option exhibition, held at Blenheim Palace in the autumn of 2019, staff were nervous about its reception due to the controversial nature of the artist and his works. Despite initial apprehension the exhibition became one of the palace’s best received, and controversy actually occurred where it was least expected. Here is how those behind the exhibition managed the process. [/vc_column_text][/vc_column][vc_column][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Name of Exhibition: Victory is Not an Option

Artist: Maurizio Cattelan

Curated by: Blenheim Art Foundation 

Date: 12 September – 27 October 2019

Venue:  Blenheim Place

Brief description of the exhibition  

The first major solo exhibition of artist Maurizio Cattelan’s work in the UK in 20 years, featuring a combination of his most iconic pieces and new works created in response to Blenheim Palace. Drawing on themes that resonate with the 18th Century palace’s martial and political history, the exhibition explores themes of nationality, wealth, war and the power of personality. See the exhibits on video here. 

Art and censorship

This case study forms part of Index on Censorship’s work on art and censorship and explores the challenges of introducing contemporary, conceptual art into a heritage environment. The aim of this case study series is not to assess the artistic merits of an artwork, but rather to reflect on the steps taken by the curators to prepare staff and audiences for provocative and challenging work.

About Blenheim Palace 

Designed by Sir John Vanburgh as a private house and home to the Duke of Marlborough, Blenheim Palace was intended, as the Blenheim Art Foundation says on its website, as “a testament of England’s supremacy over the French in a blaze of architectural glory that would rival Versailles.” It is the birthplace of Winston Churchill and where Hitler planned to live when he had conquered Britain. Asked in an interview for the Art Newspaper why he chose to come to Blenheim Cattelan said: “I had the invitation for the show a couple of years ago and was still thinking of it when, during his official UK visit, Trump met Prime Minister Theresa May there, instead of London. At that point, I could not be outdone.” 

About the Blenheim Art Foundation  

BAF was founded by Edward Spencer-Churchill, half brother of the Duke of Marlborough and collector of contemporary art, in 2014. Each year BAF invites a leading international artist to create an exhibition in the opulent surroundings of Blenheim Palace. “Showing work by living artists reminds us that the palace is not a place frozen in time, but a living, ever-changing national monument to culture of all kinds. … Through Blenheim Art Foundation’s exhibitions we hope to introduce new audiences to the work of some of today’s finest living artists, and provide seasoned art viewers with new ways of seeing contemporary artwork, in this most unique of settings” – Edward Spencer-Churchill. 

What made it controversial?

Cattelan, described by The Art Newspaper as “Art’s most high-profile provocateur,” saitrises and lampoons the ideas of heroism, military prowess and national power. Placing Cattelan’s work in the palace alongside art that celebrates the Dukes of Marlborough, their family members and military achievements inevitably changes who sees the original art work and how it is perceived.  

The BAF annual exhibition takes its place within a packed programme of events at Blenheim Palace and its grounds, including heritage tours of the palace and its artworks, fun runs, vintage car rallies, family circuses, Christmas events and the Blenheim Horse Trials. The programme employs 300 staff in the palace and attracts nearly a million visitors per year.  Members of the staff team had expressed the following concerns:

  • The work might have a negative impact on their core audience and damage the palace’s reputation
  • Some guides had been concerned about their ability to do their work effectively since contemporary art was not their specialism
  • Some guides also felt ill-equipped to respond to visitors who might be upset by the exhibits  
  • Particular iconic Cattelan works had elicited divisive responses across the staff team and had caused controversy in the past, notably Him, 2001, La Nona Ora, 1999, and Novecento, 1997 
  • Of these, Novecento, in which a taxidermied horse is hung from the ceiling, was the work that many of the staff found most problematic, especially given that the Blenheim Horse Trials were on during the exhibition run

In fact, although no-one had anticipated this in the run up to the exhibition, the installation of the Union Jack walkway taking the visitors to the entrance of the palace through the courtyard proved to be the most controversial piece (see Reflections below).

Maurizio Cattelan’s Novecento, 1997, in display at Blenheim Palace. One of the more controversial artworks. Credit: Tom Lindboe

What action was taken

Workshop with staff and guides: BAF and Index presented two half-day workshops, one for staff and one for guides. It gave the opportunity to respond to and discuss the artworks directly, and to raise concerns. For the guides, it was also an opportunity to rehearse how to respond to people who were upset about the work. 

In addition a series of quotes from Cattelan were used as discussion points in small groups about the role of  contemporary art, to encourage the team to get comfortable with talking to the public about the work: 

  • “I actually think that reality is far more provocative than my art” 
  • “There are times when being scandalous or provocative can help bring focus to issues of major concern”  
  • “The duty of art is to ask questions, not provide answers”
  • “Art is a territory that everyone has the skills to explore”

Screenings of Maurizio Cattelan documentary for staff: BAF organised a number of screenings of the 2016 documentary Maurizio Cattelan: Be Right Back ahead of the opening.

Dedicated tour for palace staff: BAF led an after-hours tour of the newly installed exhibition for palace staff. It was an opportunity to discuss the work in situ and answer any questions.

Visitor information: 

  • Artwork booklet – free and handed out to all visitors as they enter the gates (back up supply in Great Hall). English only
  • Exhibition and BAF “About” sheet in Mandarin – free sheet for Chinese individual visitors and tour groups who are Blenheim Palace’s second biggest demographic of visitor after English-speaking visitors.
  • Room sheets – laminated sheets in rooms containing artworks
  • Audio Guide – exhibition option available on long, short and highlights tour. English only
  • Disclaimer warnings – alerting to the most sensitive works
  • Information assistants – one on weekdays, two on weekends on duty at the exhibition to support the palace guides
  • Further reading and feedback desk – dedicated desk located outside “America” where visitors can look at books about Cattelan and the subjects in the exhibition and leave feedback about the exhibition.
  • Scripts for customer service: BAF provided a lot of FAQs for customer services who field all complaints
  • Information pack for guides: BAF provided a full information pack with further information on each artwork, an explanation of the main ideas in the exhibition and biographical information on Cattelan.
  • Opportunities for feedback: There were plenty of opportunities to feedback either in person to the information assistants or the BAF team, or on feedback forms. These were anonymous and very simple, placed right at the end of the exhibition, with very neutral language, asking how the work made you feel.
  • Curators on site: In addition, to ensure the staff at Blenheim were supported if any difficult questions arose, a member of the BAF team was on hand, available to talk to visitors and support staff, especially the customer service. 
  • Dedicated information assistants: were on duty, ready to answer questions.  They also approached people proactively and engaged people in discussion. 

What happened

Maurizio Cattelan’s America, 2016, at Blenheim Palace before it was stolen. Credit: Tom Lindboe

The most controversial incident was something not anticipated when considering public response to the exhibition. Early in the morning of Saturday 14 September, two days after the show opened at Blenheim, “America”, the 18 carat gold fully functioning toilet, the centrepiece of the exhibition marketing strategy, was stolen. Cattelan commented to the NYT: “I want to be positive and think the robbery is a kind of Robin Hood-inspired action. I wish it was a prank.” 

Visitor feedback: As anticipated the exhibition attracted a wide range of reactions, falling roughly into 50% in favour of the exhibition and 50% against. The installation that solicited the most criticism was, unexpectedly, the flags in the courtyard.  This along with the success of the “crime scene” as a visitor attraction illustrate that controversies often arise when and where least expected.

To follow are reflections from key members of staff involved in the exhibition and some examples of audience feedback.

Reflections

Helen Neven – Researcher and Curatorial Assistant, Blenheim Art Foundation

Maurizio Cattelan’s exhibition at Blenheim Palace was exemplary of many aims of Blenheim Art Foundation: to introduce the work of a major contemporary artist to new audiences and to create a juxtaposition between historical and contemporary culture that would reveal commonality as much as difference. Known for his often searing critique of power and society, we knew Maurizio’s work would create a fascinating dialogue with Blenheim Palace’s own history and cultural identity, but we needed to ensure this translated as such.

Showing contemporary art at a historic site like Blenheim Palace presents unusual challenges, not just logistically but also in the project’s inherently interventional nature. This infiltration of the new and the unfamiliar is something that must be acknowledged, firstly in regards to audience. Blenheim receives a wide range of visitors of all ages and backgrounds, many of whom are unfamiliar with contemporary art. The conceptual nature of much of Maurizio’s work required us to find a language and forms of mediation that would be accessible and compelling to both seasoned art visitors and complete novices. The drafting of the artwork booklet and audio guide script became a collaborative process between the Art Foundation and the palace team, who acted as a valuable sounding board in the editing process. 

The palace team was our second main focus in preparing for the show’s reception. We knew there was a feeling of apprehension around the sensational nature of many of Maurizio’s artworks. As the ones facing the public every day, it was important that the palace staff and guides team felt equipped to talk confidently about the exhibition. The workshop day with Index proved a success in its provision of a space for discussion, debate, questions and feedback, and strengthened relationships between the Art Foundation team and palace team. We now plan to organise a dedicated training day ahead of each exhibition. 

Despite initial apprehension (and Maurizio’s history of controversy), this exhibition became one of our best received by visitors and press alike. The rich relationship between Maurizio’s practice and the palace’s history – circling issues of conflict, power, heroism and right-wing politics – translated well, as was apparent on the visitor feedback forms available at the end of the tour. The clarity of this relationship was, I would argue, key to the exhibition’s positive reception. It is clearly not enough to put new objects in old rooms, and this shows the power in providing the tools not just to look at artworks, but to understand them.

Samantha Vaughan – Head of Marketing, Blenheim Palace

I had just started as head of marketing at Blenheim and was handed this. It was quite shocking to think that some of these exhibits were going to come in to the palace. I had worked with contemporary art but not in this kind of environment. But I actually enjoyed that it was different. You are never going to please everyone and people have become very vocal. There are more outlets to express our disgruntlement and then people can join in. But we felt quite comfortable about what was going to happen, we felt prepared.

The exhibition opened to the public on the Friday and by the evening we were beginning to get complaints about the flags. We hadn’t expected that – we were prepared for complaints about the taxidermy or the figures of Hitler and the Pope. International visitors were asking for permission to walk on the flags. Some Canadians and Americans couldn’t actually step on them. We thought the story would blow and we planned to put our heads together on how to respond on Monday, and then, early on Saturday morning, the 18 carat gold toilet “America” was stolen. From then on, the toilet overshadowed everything else.

We went into crisis mode preparing statements. The police investigation meant we were very limited on what we could say.  We were dealing with the world’s media, we were on televisions from EU to US, from Australia to China. There was an outpouring of sympathy about the theft, and people didn’t mention any other artefacts. We decided to let people in to see the police ‘crime scene’ which proved very popular. If the toilet hadn’t been stolen, 100% it would have been a different story.  

I really enjoyed working with BAF, getting to know more about Cattelan and the exhibition. BAF is part of the Blenheim experience now. You have a captive audience you can challenge, people came out informed, and I don’t think that’s a bad thing. Without it, Blenheim is just the same thing that people come to look around, so you have to challenge. You can change the way people perceive what’s there.

Sylvain Richard – Head Guide, Blenheim Palace

Personally, right from the beginning, I have felt the contemporary art exhibitions were a welcome addition to the palace’s annual event calendar. They have brought practical and intellectual challenges of course but this is very much part of the attraction.

The majority of our visitors are interested in history, stately homes, fine art, antique furniture, porcelain, architecture etc… This audience has been rather taken aback by unexpected modern art (despite being usually well advertised). Part of our job therefore has been to mitigate visitors’ surprise or disappointment, and hopefully, if not converting them, at least awakening in them awareness and interest in contemporary art.

Maurizio Cattelan was in the main better received and appreciated by the public than previous exhibitions. The guides were prepared to deal with negative reactions to some of the installations and were surprised at the mainly positive reception by the public. The exhibition definitely generated more curiosity and interesting discussions than usual, even with difficult works such as Hitler, the Pope or the suspended horse for example, which could have led to emotional reactions. Visitors were actually willing to listen to some explanations and to see the exhibition from a new perspective fitting into Blenheim Palace. Interestingly, we found that the strongest held opinions were about the flags. American visitors in particular refused to walk on the flag as they saw it as almost treason as it would be in America. Some British visitors and even members of Blenheim staff also refused to walk on the flag, seeing this as disrespectful. Having said that some 90% of visitors didn’t seem to be concerned and certainly enjoyed the photo opportunities.

The theft of key exhibit “America” was obviously a shocking event for Blenheim Palace. Assumed by some to be one of Maurizio Cattelan typical stunts, the heist generated phenomenal awareness worldwide. Following this event we experienced a much greater level of interest in the exhibition in general but also in the “crime scene” which became an art installation in its own right.

Going back in time to earlier exhibitions, when we experienced quite a number of negative comments from our visitors, it would have been easy to question whether Blenheim should continue its involvement with modern art. I believe if it hadn’t been for Lord Edward’s conviction pursuing his vision regardless, it might well have been abandoned. Many guides have gained confidence on the subject, and the public has grown more aware and interested in modern art. The exhibitions help to popularise contemporary art like no dedicated art gallery could. Controversy will of course continue but, with better-trained and informed guides and a public more accepting of modern art, it is possible to see contemporary art as an integral and on-going part of the life of the palace.

Selection of audience feedback from Tripadvisor   

 “We were not told that there was a vile exhibition taking place. We left feeling that the disgraceful and demented “art” exhibition ruined the rooms and was only there to shock the audiences.  It is entirely unsuitable for children to see. The place has been turned into a cheap arcade to appal visitors with grotesque figurines that ruin the rooms. The so-called art exhibition is a show of someone’s sick sense of what?”

“I can see the modern art may not be enjoyed by all but the free booklet or the title card nearby explained the artist’s interpretations. Once I read those few lines I could agree with him on most of the pieces and then enjoyed it. For example, the meteorite on the Pope is not wishing ill of His Holiness but is a warning that nobody is invincible no matter who you are.” 

“I was absolutely horrified at the Exhibition of modern art: the worse examples were a figure of the Pope, on the ground, being hit be a meteorite; and a kneeling figure of Adolf Hitler. No warning was given that one was about to see images that might be found upsetting or controversial.”

“Others have mentioned the art exhibition. I too was shocked by some of the exhibits especially the stuffed horse hanging from the ceiling – I nearly screamed! However, talking to one of the art people, I can understand why the Palace have done this and it is definitely thought-provoking, so Cattelan has achieved his goal.  I would like to see other exhibitions here again. I applaud Blenheim for giving visitors more than state rooms.” 

“We were met in the courtyard by what can only be described as a disgrace – a cross of our Union Flag for all to trample over.  Someone needs to tell the artist and the Trustees of the Palace that this is simply not appropriate and remove it. I appreciate art is in the eye of the beholder but this is downright disrespectful.”  

“Not normally impressed by modern art, the exhibition that was combined in Blenheim was thought provoking. I really enjoyed it, and found it added to the history, and kept the house alive.”

“We were appalled at the artist Catellan’s art on display in such a beautiful and, dare we say, historically significant place to the British people.  We feel that a discredit has been done to the Churchill memory in a cheap attempt to placate some group’s idea of ‘art in your face’. A horse hung from the ceiling, a penitent Hitler kneeling in the hallway? Seriously? And, as Roman Catholics, we found the depiction of Pope Saint John Paull II laying under a meteor truly sacrilegious.”

“A stunning and thought provoking contemporary art exhibition – resonant of both the past and the age we live in. Blenheim Palace provides the perfect backdrop for Cattelan’s pieces. Each sculpture invites discussion and reflection. At times provocative, uncomfortable and depressing but also witty and engaging. I didn’t expect to enjoy the visit as much as I did, so congratulations to Blenheim on ‘being brave’. I would recommend that the visitors take the opportunity to read the exhibition guide as they view the works.”

“The Trustees are keen to the ‘Birthplace of Churchill’ well live up to it and tell the artist this is not on!  Bizarrely we were asked to wear plastic shoe covers if we wanted to up close to the replica Cistene Chapel. Didn’t get further than the courtyard today we were so ashamed of the National Treasure.”[/vc_column_text][/vc_column][/vc_row]

Media Advisory: Free Expression Spokespeople—New Voices

23 Jan 20 | Free Speech Is For Me, Press Releases

[vc_row][vc_column][vc_column_text]Note to news and feature editors: 

Index on Censorship is running a project to bring new voices to discussions on freedom of expression. We have graduates of the programme in both the UK and the US. If you have a freedom of expression story, please do contact us and consider one of them for a comment spot. Here’s a little about some of the participants.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Athena Stevens is an Olivier-nominated playwright and performer and a human rights activist. As a woman who has cerebral palsy, she is particularly interested in how free speech issues relate to women and people with disabilities. 

 

 

Maya Thomas is a third-year history undergraduate at Oxford University, and founder of the Oxford Society for Free Discourse, a group dedicated to countering censorship among students and academics. She is interested in free speech on campus, identity politics and narratives about race, victimhood and oppression. 

 

 

Ash Kotak is an award-winning playwright & film maker. He is particularly interested in how taboo, shame and stigma impede on free speech. 

 

 

 

Rhiannon Adams is a researcher and campaigner for human rights and technology. She currently works in the legal sector and is particularly interested in online censorship, self- censorship and how the popular left have been resistant towards free speech. 

 

 

Max Lake graduated from the University of Birmingham in July 2019 and was deeply alarmed at what he felt were the student union’s censorious policies. As a pro-Brexit, working-class Northern male, Max, who is from Rochdale, feels that his group is frequently spoken about, but rarely hears the perspectives of individuals themselves.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”70″][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Editor’s Notes 

In August 2019, Index on Censorship launched Free Speech Is For Me, a six-months training and mentoring programme. We recruited 7 people in the UK from diverse backgrounds to become Free Speech Advocates. We are working on another programme in the USA. More here: https://www.indexoncensorship.org/free-speech-is-for-me/

About Index on Censorship: Index on Censorship is a global non-profit organisation that publishes work by censored writers and artists and campaigns against censorship worldwide. Since its founding in 1972, Index on Censorship has published some of the greatest names in literature in its award-winning quarterly magazine, including Samuel Beckett, Nadine Gordimer, Mario Vargas Llosa, Arthur Miller and Kurt Vonnegut. It also has published some of the world’s best campaigning writers from Vaclav Havel to Elif Shafak.

Please contact: [email protected], [email protected] or [email protected]. Or DM @indexcensorship on Twitter.[/vc_column_text][/vc_column][/vc_row]

In the name of liberty…

22 Jan 20 | News and features, Volume 48.04 Winter 2019

[vc_row][vc_column][vc_custom_heading text=”In the winter 2019 issue of Index on Censorship magazine, editor-in-chief Rachael Jolley argues that a new generation of democratic leaders is actively eroding essential freedoms, including free speech” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][vc_column_text]

Like brothers in arms, they revel in the same set of characteristics. They share them, and their favourite ways of using them, on social media.

From Orbán to Trump and from Bolsonaro to Johnson, national leaders who want to dismiss analysis with a personalised tweet, and never want to answer a direct question, have come to power – and are using power to silence us. They like to think of themselves as strongmen but what, in fact, they are doing is channelling the worst kind of machismo.

For toughness, read intolerance of disagreement. They are extremely uncomfortable with public criticism. They would rather hold a Facebook “press conference” where they are not pressed than one where reporters get to push them on details they would rather not address. Despite running countries, they try to pretend that those who hold them to account are the elite who the public should not trust.

While every generation has its “tough” leaders, what’s different about today’s is that they are everywhere, and learning, copying and sharing their measures with each other – aided, of course, by the internet, which is their ultimate best friend. And this is not just a phenomenon we are seeing on one continent. Right now these techniques are coming at us from all around the globe, as if one giant algorithm is showing them the way. And it’s not happening just in countries run by unelected dictators; democratically elected leaders are very firmly part of this boys’ club.

Here are some favoured techniques:

If you don’t like some media coverage, you look at ways of closing down or silencing that media outlet, and possibly others. Could a friend buy it? Could you bring in some legislation that shuts it out? How about making sure it loses its advertising? That is happening now. In Hungary, there are very few independent media outlets left, and the media that remain is pretty scared about what might happen to them. Hungarian journalists are moving to other countries to get the chance to write about the issues.

In China, President Xi Jinping has just increased the pressure on journalists who report for official outlets by insisting they take a knowledge test, which is very much like a loyalty test, before being given press cards.

Just today, as I sit here writing, I’ve switched on the radio to hear that the UK’s Conservative Party has made an official complaint to the TV watchdog over Channel 4’s coverage of the general election campaign (there was a debate last night on climate change where party leaders who didn’t turn up were replaced with giant blocks of ice). A party source told the Conservative-supporting Daily Telegraph newspaper: “If we are re-elected, we will have to review Channel 4’s public service broadcasting obligations. Any review would, of course, look at whether its remit should be better focused so it is serving the public in the best way possible.” In summary, they are saying they will close down the media that disagree with them.

This not very veiled threat is very much in line with the rhetoric from President Donald Trump in the USA and President Viktor Orbán in Hungary about the media knowing its place as more a subservient hat-tipping servant than a watchdog holding power to account. It’s also not so far from attitudes that are prevalent in Russia and China about the role of the media.
For those who might think that media freedom is a luxury, or doesn’t have much importance in their lives, I suggest they take a quick look at any country or point in history where media freedom was taken away, and then ask themselves: “Do I want to live there?”

Dictators know that control of the message underpins their power, and so does this generation of macho leaders. Getting the media “under control” is a high priority. Trump went on the offensive against journalists from the first minute he strode out on to the public stage. Brazil’s newish leader, President Jair Bolsonaro, knows it too. In fact, he got together with Trump on the steps of the White House to agree on a fightback against “fake news”, and we all should know what they mean right there. “Fake news” is news they don’t like and really would rather not hear.

New York Times deputy general counsel David McCraw told Index that this was “a very dark moment for press freedom worldwide”.

When the founders of the USA sat down to write the Constitution – that essential document of freedom, written because many of them had fled from countries where they were not allowed to speak, take certain jobs or practise their religion – they had in mind creating a country where freedom was protected. The First Amendment encapsulates the right to criticise the powerful, but now the country is led by someone who says, basically, he doesn’t support it. No wonder McCraw feels a deep sense of unease.

But when Trump’s team started to try to control media coverage, by not inviting the most critical media to press briefings, what was impressive was that American journalists from across the political spectrum spoke out for media freedom. When then White House press secretary Sean Spicer tried to stop journalists from The New York Times, The Guardian and CNN from attending some briefings, Bret Baier, a senior anchor with Fox News, spoke out. He said on Twitter: “Some at CNN & NYT stood w/FOX News when the Obama admin attacked us & tried 2 exclude us-a WH gaggle should be open to all credentialed orgs.”

The media stood up and criticised the attempt to allow only favoured outlets access, with many (including The Wall Street Journal, AP and Bloomberg) calling it out. What was impressive was that they were standing up for the principle of media freedom. The White House is likely to at least think carefully about similar moves when it realises it risks alienating its friendly media as well as its critics.

[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-quote-left” color=”custom” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column_inner][vc_column_inner width=”3/4″][vc_custom_heading text=”And that’s the lesson for media everywhere. Don’t let them divide and rule you” font_container=”tag:h3|text_align:left” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][/vc_column_inner][/vc_row_inner][vc_column_text]

And that’s the lesson for media everywhere. Don’t let them divide and rule you. If a newspaper that you think of as the opposition is not allowed access to a press briefing because the prime minister or the president doesn’t like it, you should be shouting about it just as hard as if it happened to you, because it is about the principle. If you don’t believe in the principle, in time they will come for you and no one will be there to speak out.

That’s the big point being made by Baier: it happened to us and people spoke up for us, so now I am doing the same. A seasoned Turkish journalist told me that one of the reasons the Turkish government led by President Recep Tayyip Erdogan was able to get away with restrictions on critical media early on, was because the liberal media hadn’t stood up for the principle in earlier years when conservative press outlets were being excluded or criticised.

Sadly, the UK media did not show many signs of standing united when, during this year’s general election campaign, the Daily Mirror, a Labour-supporting newspaper, was kicked off the Conservative Party’s campaign “battle bus”. The bus carries journalists and Prime Minister Boris Johnson around the country during the campaign. The Mirror, which has about 11 million readers, was the only newspaper not allowed to board the bus. When the Mirror’s political editor called on other media to boycott the bus, the reaction was muted. Conservative Party tacticians will have seen this as a success, given the lack of solidarity to this move by the rest of the media (unlike the US coverage of the White House incident).

The lesson here is to stand up for the principles of freedom and democracy all the time, not just when they affect you. If you don’t, they will be gone before you know it.

Rallying rhetoric is another tried and tested tactic. They use it to divide the public into “them and us”, and try to convert others to thinking they are “people like us”. If we, the public, think they are on our side, we are more likely to put the X in their ballot box. Trump and Orbán practise the “people like us” and “everyone else is our enemy” strategies with abandon. They rail against people they don’t like using words such as “traitor”.

Again in Hungary, people are put into the “outsiders” box if they are gay, women who haven’t had children or don’t conform to the ideas that the Orbán government stands for.

Dividing people into “them and us” has huge implications for our democracies. In separating people, we start to lose our empathy for people who are “other” and we potentially stop standing up for them when something happens. It creates divides that are useful for those in power to manipulate to their advantage.

The University of Birmingham’s Henriette van der Bloom recently co-published research pamphlet Crisis of Rhetoric: Renewing Political Speech and Speechwriting. She said: “I think there is a risk we are all putting ourselves and others into boxes, then we cannot really collaborate about improving our society. Some would say that is what is partly going on at the moment.” Looking forward, she saw one impact could be “a society in crisis, speeches are delivered, and people listen, but it becomes more and more polarising”.

But it’s not just the future, it’s today. We already see societies in crisis, with democratic values being threatened and eroded. This does not point to a rosy future. But there are some signs for optimism. In this issue, we also feature protesters who have campaigned and achieved significant change. In Romania, a mass weekly protest against a new law which would allow political corruption has ended with the government standing down; in Hungary, a new opposition mayor has been elected in Budapest.

Democracies need to remember that criticism and political opposition are an essential part of their success. We must hope they do.

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Rachael Jolley is editor-in-chief of Index on Censorship magazine. She tweets @londoninsider. This article is part of the latest edition of Index on Censorship magazine, with its special report on macho male leaders 

Index on Censorship’s winter 2019 issue is entitled The Big Noise: How macho leaders hide their weakness by stifling dissent, debate and democracy 

Look out for the new edition in bookshops, and don’t miss our Index on Censorship podcast, with special guests, on Soundcloud.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/3″][vc_custom_heading text=”How macho leaders hide their weakness by stifling dissent, debate and democracy” font_container=”tag:h3|text_align:left” link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2F2019%2F12%2Fmagazine-big-noise-how-macho-leaders-hide-weakness%2F|||”][vc_column_text]The winter 2019 Index on Censorship magazine looks at how male leaders around the world are using masculinity against our freedoms[/vc_column_text][/vc_column][vc_column width=”1/3″][vc_row_inner][vc_column_inner][vc_single_image image=”111045″ img_size=”full” onclick=”custom_link” link=”https://www.indexoncensorship.org/2019/09/magazine-border-forces-how-barriers-to-free-thought-got-tough/”][/vc_column_inner][/vc_row_inner][/vc_column][vc_column width=”1/3″][vc_custom_heading text=”Subscribe” font_container=”tag:h3|text_align:left”][vc_row_inner][vc_column_inner][vc_column_text]In print, online. In your mailbox, on your iPad.

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