Scotland’s New Hate Speech Law

​In the verdant, rugged landscapes of Scotland, known for its fierce independence and love of freedom, the country’s parliament has hammered another nail in the coffin of free speech. The Hate Crime and Public Order Act, intended to consolidate and expand protections against hate crimes, has sparked a heated argument about its restrictions encroaching on free expression.
 
The act updates existing laws, adding age and potentially sex to the list of characteristics to be protected from offensive statements. It introduces a new offense for stirring up hatred against protected groups. And while the law also abolishes blasphemy, an offense not prosecuted for more than 175 years, it effectively replaces it with the broader offense of “stirring up hatred” since many groups may view blasphemy as hatred against them. Restricting controversial speech has itself ignited controversy, reflecting a global trend in the UK, Canada, and Australia, where the bounds of legally protected speech are being redrawn.
 
The law's reception has generated significant concern over its implications for freedom of speech throughout the English-speaking world. The act’s critics – J.K. Rowling, as well Joe Rogan and Elon Musk in America – argue that in its effort to protect, the law risks stifling open discourse on contentious subjects, such as gender and sexuality. Some of the most hotly debated issues of the day are now legally risky to discuss.
 
J.K. Rowling directly challenged the law by publicly defying its perceived restrictions on speech concerning gender identity. Through a series of tweets that critiqued aspects of transgender activism and its impact on women's rights, Rowling provocatively dared the police to arrest her, testing the limits of the new law's application. Despite the contentious nature of her commentary, authorities concluded that her actions did not constitute a criminal offense under the act. But the next speaker to criticize the views and ideologies of protected groups may not receive so tolerant a reception from the Scottish authorities.
 
Rowling’s situation stands in contrast to the standard of speech applied in the United States, where the Supreme Court's ruling in Brandenburg v. Ohio protects speech unless it is intended and likely to incite imminent lawless action. Under this doctrine, much of the speech potentially criminalized under Scotland's new law remains protected in the United States. In Scotland, however, even when the law isn’t enforced it will have a chilling effect. Rowling is a high-profile figure with resources both financial and social; she is not an easy target to take down. This law could still be deployed against people without 14 million Twitter followers and ample legal resources to back them up.
 
Free speech is hard. It demands a lot of a society, and what it provides in return is more long-term and difficult to measure. One short-term consequence of misguided restrictions, however, is that they often have the opposite effect than was intended, providing the allure of the forbidden to disreputable ideas. This amplification, reminiscent of the Streisand Effect, is already on display. And because broad and vague standards like stirring up hatred can cut in many different directions, groups most likely to peddle in such vitriol will be equally quick to play the victim when they, too, are criticized. Neo-Nazi and far-right groups thus have predictably attempted to overwhelm the Scottish police with complaints under the new law claiming that criticism stirs up hatred against them. This experience alone suggests that, far from quelling hate speech, the legislation may inadvertently give it a louder voice or make it impossible to even discuss the sources and causes of real crimes. Hate crime reports in Scotland are currently on track to outpace all other crimes reported to the police this year.
 
The necessity of free speech – as a foundational pillar of democracy and civil society –
cannot be overstated. It is deeply ironic that this restrictive law has emerged from the same country that once gave rise to the Scottish Enlightenment and the ideals of liberty and limited government. Here in the United States, we long ago broke from the British Empire and rejected more restrictive views and abuses regarding speech, religion, and other important liberties. We should make sure not to follow Britain back towards a more repressive view regarding the freedom of speech, especially on matters of public controversy and debate.
 
The debate in Scotland offers valuable lessons for democracies worldwide, reminding us of the delicate balancing act required of a society committed to free speech. As Ben Franklin once said: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”