A Rose by Any Other Name?

Why It Matters That We Don’t Have an Objective Definition of “Hate”

Wall shouting. Photo credit: Guillaume de Germaine

There seems to be a clear consensus now that “hate” is bad, “hate” must be stopped and we can all play our part in hating hate. There is rather less clarity about what exactly we mean by “hate,” how it is to be defined and what the consequences should be for haters, but a great number of people and organisations are willing to broadcast just how much they hate. 

Ofcom chief executive Melanie Dawes appeared before parliament’s Digital, Culture, Media and Sport Committee in December 2020. When asked about the BBC’s current editorial practice of requiring critical voices in all discussions relating to transgender people, she responded that it was “extremely inappropriate” for broadcasters to seek to “balance” appearances by transgender people with “activists” from hateful anti-trans pressure groups. But who exactly is such a hateful “activist”? Tory MP Damian Green had to point out that current definitions risked including women like JK Rowling. 

The Twitter account of the BBC Sports department recently offered a stern warning, accompanied by the jaunty hashtag #HateWontWin, that it would block all accounts that “brought hate” to its comments and the most serious examples would be “reported” to the authorities. 

Those attempting to answer a consultation from the Welsh Government on LGBTQ+ issues were met with a similar warning; “We will not tolerate hateful comments about a person’s sexual orientation, gender identity, race, religion or disability and any responses that contain hate speech will be passed to the authorities.” But probably the worst example of all was the appearance of Merseyside police in a local car park earlier this year, under a big banner stating, “Being offensive is an offence”–which as many pointed out, is simply untrue. Merseyside then apologised. If even our police don’t understand the law, there is little wonder there is great confusion and worry over exactly what amounts to sufficient “hate” to get the police’s attention. Most of us, I reasonably assume, would have no problem with the police investigating incitement to violence or seriously abusive harassment targeted at individuals. But that isn’t so much “hate” speech as “dangerous speech.” The distinction between “feeling offended” and “feeling threatened” ought to be a relatively easy one to make.

The problem with “hate” as a metric on which to determine entry into the criminal justice system is that not only is it a common and everyday emotion but a word that appears to have become completely unmoored from any objective definition. It is now used to describe statements that the listener or reader finds “offensive” or with which they disagree.  The implications for our fundamental rights to freedom of speech if this continues unchecked, are obvious and very serious.

There are sadly myriad examples of how “hate” has lost its way–the obvious example is the fury aimed at JK Rowling’s attempt to explain her position in the debate on sex and gender. You can read what she wrote in June 2020 here and make up your own mind. I can find absolutely nothing to justify the tsunami of threats and accusations of “hate” and “bigotry” that followed. 

So how exactly have we got into this mess? I think there are two main reasons; first that there is no workable definition of “hate” in criminal law. Second, that the reaction to ‘hate’ and the consequences it attracts, appears to be different for men and women. Being female is having a particular impact - both on how “hateful” speech by women is punished but also on how “hateful” speech directed against women is not. 

Concerning the definition of “hate,” the CPS guidance says: “The term “hate crime” can be used to describe a range of criminal behaviour where the perpetrator is motivated by hostility or demonstrates hostility towards the victim's disability, race, religion, sexual orientation or transgender identity.”

So what does “hostility” mean? The Crown Prosecution Service (CPS) guidance goes on to make a case for this term: “There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.”

The dangers inherent in this should be obvious. There is no “everyday” understanding of when “unfriendliness” should be sufficiently serious to attract the attention of the criminal law. The College of Policing sidesteps this difficulty with regard to “hate incidents” by the simple expedient of making the identification of “hate” entirely the subjective perception of the alleged “victim.” Any questioning of the motivations or rationality of the victim is explicitly prohibited as “secondary victimisation.”

The second problem is the different ways women are treated. In December 2020 Kate Scottow was successful in her appeal against conviction for “improper use of a public communications network, contrary to section 127(2)(c) of the Communications Act 2003.” 

There was no doubt that Ms Scottow had been insulting and many would find her comments offensive. She sent a variety of electronic messages suggesting that a transwoman was racist, xenophobic, bullying, dishonest, fraudulent and a “pig in a wig.” But should this have been a criminal offence? The first court said “yes” and appeared to put a lot of weight on Ms Scottow’s lack of womanly “kindness.” It is interesting to speculate if such comments lamenting her lack of kindness would have been made to a male defendant. Happily, the appeal court was not impressed by an analysis that focused on “kindness” rather than the rigorous and structured approach which is required to justify interference with freedom of expression. 

This expectation that “being kind” is more relevant for women than having a voice was repeated in June 2021–sadly–by none other than the Fawcett Society. We can contrast the swift action against Ms Scottow and her initial conviction against the rather more lacklustre response when women are the targets of abuse and threats for their “gender critical” beliefs. 

The Reindorf report in May 2021 noted that a serious threat to the safety of female speakers at Essex University was not taken seriously and not investigated. The initial response of Brunel University in June 2021 to a tweet showing a variety of firearms accompanied with the wish to go “target hunting for terfs” was initially met with a response supporting trans rights–until sanity prevailed or the outrage on social media grew too great to ignore, and the matter was instead referred to the police. The Scottish National Party (SNP) politician Joanna Cherry has experienced only silence from her party after she was driven off social media and into police protection by threats of sexual violence from a man who found her views “hateful.”

In the past year, I have made three complaints to my regulator about the online publications of male barristers about women. I do not recall ever seeing a female professional speak about men in the same terms. Core Duty 5 of our Code of Conduct prohibits comments “designed to demean or insult.”

I do not know what the Bar Standards Board make of comments about a serving Judge being akin to a transphobe because she ruled in favour of court oversight of medical transition of children, or that I am a “terrorist” as a member of Fair Cop, as I have yet to have any response to those complaints. My most recent concerned comments directed at Maya Forstater to call her “anti-trans, transphobic bigot” who “deliberately promotes beliefs… that put trans people and allies in danger.” Further, that she is a “figurehead” in a campaign that “deliberately uses lies, exaggerations and menacing language” and goes on to suggest that “gender critical” campaigners will use the tactics of terrorism “If someone bombs Stonewall, they’ll say they did it for “gender criticism.”

These comments quite clearly appear to be “hateful” to me.  They clearly indicate ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.

Should this barrister then face criminal sanctions? I think it is sailing close to the edge of incitement to violence against Ms Forstater and is likely to diminish public trust and confidence in the profession. But when I asked for the barrister to delete these tweets and reflect on his future conduct, he refused; his Chambers noting there are “strong feelings” on both sides of the debate. 

Of course, there are “strong feelings” in this debate – I share them. But there is a difference between robust language and that which descends to insults and is demeaning. But men who insult “gender critical” women appear to have a free pass, to behave as badly as they like, even when identifiable members of a regulated profession. 

I agree that hate is often corrosive. When it infects debate, this often closes the door on any rational resolution of a dispute. But how “hate speech” is experienced appears now to be entirely subjective and is used as a justification to silence the speaker. It was chilling to listen to the submissions at the Court of Appeal in Harry Miller’s challenge to the Hate Crimes Guidance, as the College of Policing rejected any distinction between racist speech and a female academic who wished to talk about sex and gender. Both were simply “hate” and should be reported and recorded as such. So in our Brave New World, there is to be no distinction between obvious racist slurs and genuine academic inquiry–both will be “hate” if that is what another decides them to be. 

Is the tide turning? There appears to be little evidence that the judgment of the Employment Tribunal in Maya Forstater’s case in June 2021 is having much impact.

The EAT (Employment Appeal Tribunal) confirmed a belief that sex is immutable is a worthy of protection under the Equality Act 2010. However, those women who wish to discuss the ramifications of the conflation of sex and gender still find themselves accused of bigotry and hate, risk criminal intervention, the loss of their jobs, their no-platforming. And those men who use degrading and demeaning language against such women, go unremarked. 

Hopefully the Court of Appeal will soon deliver a judgment in Harry Miller’s case that will strike down the College of Policing Hate Crime guidance as unlawful, and thus provide further impetus for moving away from subjective “hate speech” to a more objective test of “dangerous speech” that does merit the attention of the police. 

We seem as a society to be encouraging a very dangerous lack of understanding about what the law is and does. I had a recent exchange on Twitter where I was assured that “many statutes” provided me a definition of “hate speech” and all I had to do is Google. This is of course, untrue. It is the very lack of definition that makes it so dangerous. Free speech cannot be absolute in any society worth living in, but the restrictions on a fundamental and very important right, must be limited and clearly defined–and certainly not infected with any kind of misogyny or expectations that women must be “kind” when they talk about and protect their rights.